AGB erstellen: Kostenlos, Generator oder Anwalt?

Your online store, SaaS platform, or consulting business handles customer data, handles payments, and delivers services. But what happens when a dispute arises? Without clear Terms & Conditions (AGB), your business is legally exposed. Yet many German SMEs delay creating AGB because they think it requires expensive lawyers. The truth is more nuanced — and sometimes free solutions work fine, but sometimes they set you up for costly problems.

This guide walks through when AGB are legally required, compares three approaches to creating them, explains which clauses German courts actually enforce, and shows you when investing in legal review truly matters.

Do You Actually Need AGB?

Short answer: yes, almost always. Longer answer: it depends on your business model.

• B2B (Business-to-Business): AGB are expected, not always legally required by statute, but highly recommended for liability protection and payment terms
• B2C (Business-to-Consumer): legally required if you're doing distance selling (online store, subscription service) under BGB §312g. Even for physical stores or local services, AGB are smart protection
• Services without ongoing contracts: a one-off consulting project? Still worth having AGB that cover scope, payment, liability, and liability limits
• Freelancers and solopreneurs: AGB signal professionalism, clarify deliverables, and protect you from scope creep

Three Approaches to Creating AGB: Cost, Risk, and Quality

Approach 1: DIY and Free Templates (€0-50, High Risk)

Many SME owners download AGB templates from the IHK (Chamber of Commerce), find Word documents on legal websites, or copy competitors' AGB. It's free and fast.

The problem: German contract law (§305-310 BGB, AGB-Kontrollmaßstab) has strict rules about which clauses are enforceable. Courts regularly invalidate clauses that are unfair, unreasonable, or hidden. When a clause is invalid, it doesn't disappear — the contract still exists, just without that clause. Usually, that hurts you (the business), because now there's no liability limit, no price increase protection, or no payment term guardrails.

Free templates often lack context-specific protections and use generic language that courts have already struck down. Copying competitors works until their AGB get invalidated in court — then your identical copy becomes legally questionable.

Approach 2: Online AGB Generators (€50-200, Balanced)

German legal-tech platforms offer smart AGB generators that ask questions about your business and auto-generate compliant terms. Leading options include eRecht24, IT-Recht Kanzlei, and Janolaw.

• eRecht24: €60-150/year, covers e-commerce, websites, SaaS, includes AGB + privacy policy + imprint templates
• IT-Recht Kanzlei: €70-180/year, strong for tech companies and digital services
• Janolaw: €80-200/year, more comprehensive (includes other contract types, not just AGB)

These tools are built by actual lawyers and updated as German law changes. They're far better than free templates because they're designed to pass legal scrutiny, they're updated automatically, and they're specific to your industry. The generated terms are usually enforceable.

Trade-off: they're one-size-fits-most, not custom-fit. If your business has unusual liability risks, complex vendor relationships, or highly specialized services, a generator might miss important protections.

Recommendation: for most SMEs (e-commerce stores, SaaS platforms, consulting, freelancing), an online generator is the best cost-benefit choice. It costs less than one lawyer consultation, updates itself, and is legally defensible.

Approach 3: Lawyer-Drafted AGB (€500-2000, Maximum Protection)

A lawyer drafts custom AGB tailored to your specific business model, risks, and customer relationships. They identify clause vulnerabilities, suggest industry-specific protections, and defend the AGB if challenged.

When this is worth the cost:

• You operate a high-liability business (manufacturing, health services, construction)
• You have complex B2B vendor contracts with multiple parties and significant financial exposure
• Your business model is non-standard (subscription with auto-renewal, marketplace, white-label SaaS, affiliate networks)
• You've had past disputes over contract terms and want certainty going forward
• Regulatory requirements apply: financial services, healthcare, GDPR-sensitive data processing

A lawyer will also review and customize clauses that generic tools can't cover: specific liability caps, IP ownership rules, dispute resolution, arbitration clauses, and jurisdiction choices.

AGB Clauses That German Courts Regularly Invalidate (§305-310 BGB)

German contract law has a concept called AGB-Kontrolle (T&C review): courts scrutinize standard terms for fairness. Certain clauses are so one-sided that they're per-se invalid, unless they meet strict exceptions. Know what courts hate:

Unreasonable Liability Exclusions (§307 Abs. 2 BGB)

Invalid clause: "We are not liable for any damages, under any circumstances, including gross negligence."

Why courts strike it: German law does not permit blanket liability exclusions for gross negligence (grobe Fahrlässigkeit) or intentional misconduct. You can limit liability for ordinary negligence, but not for egregious failures.

Valid alternative: "Liability is limited to direct damages and capped at [€X or monthly fee], except for gross negligence, intentional misconduct, death, or bodily injury."

Hidden Price Increases

Invalid clause: "The price may be increased at any time for any reason without notice."

Why courts strike it: consumers have no ability to reject or respond. Prices must be transparent at contract formation and changes must be predictable and reasonable.

Valid alternative: "We may increase prices with 30 days notice for cost increases (material, labor, taxes). Customers may terminate the contract without penalty if they reject the increase."

Excessive or Hidden Cancellation/Termination Terms (§305c BGB)

Invalid clause: In consumer contracts, termination rights that are buried in fine print, or unreasonably long notice periods (e.g., 6 months for a 12-month subscription), are often struck down.

Valid alternative: "Customers may cancel with 14 days notice at any time. Auto-renewal contracts must clearly disclose renewal dates and cancellation instructions upfront."

Surprising Clauses (Überraschungsmoment, §305c BGB)

A clause is invalid if it's so unexpected that the customer wouldn't reasonably anticipate it in a standard contract of that type. Examples:

• A clothing retailer's AGB includes a clause giving them rights to your likeness in marketing (not expected in a retail agreement)
• A SaaS contract states the vendor is not liable for data loss (unexpected for a data-handling service)
• A delivery contract states the vendor can reassign the entire agreement to a third party without consent (unreasonably surprising)

Courts ask: would the customer reasonably see this coming? If not, it's surprising and invalid.

Industry-Specific AGB Clauses You Must Include

E-Commerce and Retail

• Widerrufsrecht (Right of Withdrawal): mandatory for distance selling; customers have 14 days to cancel without cause (FFVG § 312g)
• Delivery times and conditions: "Orders are fulfilled within 2-3 business days. Delays beyond 30 days entitle customer to cancel."
• Returns and refunds: conditions for returns, restocking fees, who bears return shipping costs

SaaS and Digital Services

• Service Level Agreement (SLA): uptime guarantees, backup policies, disaster recovery
• Data protection and GDPR compliance: data processing terms, data location, retention policies
• IP ownership: who owns customer data, content, work product; vendor licensing rights
• Suspension/termination rights: under what circumstances can the vendor suspend service (unpaid invoices, breach, misuse)

B2B Consulting and Services

• Gewährleistung (Warranty): what's guaranteed (result, effort, reasonable care); liability cap for failures
• Confidentiality: NDA terms, IP confidentiality
• Payment terms: net 30, 60, net 90; late payment penalties; retention of work product until paid
• Dispute resolution: jurisdiction, arbitration, escalation procedures

AGB Mandatory Disclosure (Pflichtangaben): What MUST Be in There

German law (BGB, FFVG, TMG, BDSG/GDPR) mandates certain information in AGB, especially for consumer contracts:

• Business identity: company name, address, phone, email, business registration (Handelsregister, Gewerbeanmeldung)
• Contact person: who can customers contact with complaints, returns, data requests
• Price information: total price (gross), all fees, shipping costs, tax
• Payment and delivery terms: accepted payment methods, delivery timeline, cost allocation
• Withdrawal rights (Widerrufsrecht): only for distance contracts; 14-day right to cancel without cause, except for custom goods and digital services
• Privacy policy: link to GDPR-compliant data processing terms (often separate document)
• Dispute resolution: which court (usually the customer's home court for consumers) or arbitration; right to file with Verbraucherzentrale
• Right to file complaints: public bodies and agencies (e.g., Verbraucherzentrale) if disputes arise

How to Properly Display AGB (Einbeziehung in den Vertrag)

It's not enough to have AGB; they must be incorporated into the contract in a way that courts recognize. This is called Einbeziehung (integration).

For online contracts:

• Display AGB in full before the customer places an order (not after)
• AGB must be readable and printable: no tiny fonts, no images instead of text, no autoscrolling required
• Require explicit consent: checkbox "I agree to the AGB" (don't pre-check it)
• Store a copy of the signed/agreed-to AGB for your records (required for GoBD compliance)

For offline/email contracts:

• Send AGB before the customer confirms the order
• Use language like: "These terms apply to your purchase unless you object within 3 business days"
• Get explicit acknowledgment ("I confirm I have read and accept the AGB")

Courts reject vague references like "ask for AGB upon request" or "available on our website" if the customer never actually saw them before agreeing. Proactive display is always safer.

When to Update Your AGB

AGB are not write-once-forget-about-it documents. Review them annually and update when:

• Law changes: GDPR updates, new consumer protection rules, court cases striking down common clauses
• Your business changes: new services, new payment methods, new data handling, new geographic markets
• You've had disputes: a clause was disputed or voided? Update it before the next customer raises the same issue
• Your liability landscape changes: new insurance coverage, new regulatory requirements in your industry
• Compliance tools change: accounting software, invoicing platforms, contract signing tools update their terms, and your AGB may need to reflect new integrations or data flows

If you use an online AGB generator, they typically update automatically. For lawyer-drafted AGB, schedule a review every 2-3 years or after major business changes.

AGB Toolkit for SMEs

To implement AGB properly, integrate them with your business systems:

• **Accounting & invoicing software**: log which customer agreed to which AGB version and on what date (audit trail for GoBD)
• **Contract signing tools**: store signed agreements with AGB included for legal proof
• **E-commerce platforms**: display AGB during checkout, require acknowledgment, store proof
• **SaaS platforms**: track customer agreement to AGB at signup, log policy updates
• **Email and CRM systems**: template-based AGB links in all outgoing contracts

Many SMEs use tools like Janolaw or eRecht24 for AGB generation, then copy the text into their own e-commerce or contract management system for branding and integration.

Decision: What's Right for Your Business?

Choose DIY (free templates) only if:

• You're a local service provider with mostly one-off contracts (plumber, electrician, handyman)
• You're not handling customer data, payments, or recurring billing
• You're willing to accept higher legal risk and lack of professional defense

Choose an online generator (€50-200) if:

• You run an e-commerce store, SaaS, or digital service
• You want professional, updated, legally defensible terms without high cost
• You want automatic updates as law changes
• You're comfortable with some customization limits

Choose a lawyer (€500-2000) if:

• Your business has high liability or regulatory risk
• You're working in specialized industries (healthcare, fintech, manufacturing)
• You need bespoke protections not covered by standard generators
• You're signing significant B2B contracts and want negotiating power

Conclusion: AGB Are Worth Getting Right

AGB aren't optional legal busywork — they're your primary defense against customer disputes, scope creep, liability exposure, and unfair contract interpretations. German courts actively review AGB for fairness, and many businesses operate without them, only to discover in a lawsuit that they're unprotected.

The question isn't "do I need AGB?" (yes), but rather: "what's the right level of investment for my business?" For most SMEs, an online AGB generator delivers 80% of the protection of a lawyer at 10% of the cost. For businesses with high liability or complexity, a lawyer consultation is genuinely necessary.

Start with a generator, review the output, and add a lawyer consultation only if your business model is unusual or high-risk. Your future self will thank you when a customer dispute arises and your AGB stand up in court.

Next steps: choose your approach, implement your AGB, integrate them into your contracts and e-commerce system (see GoBD compliance guide), and schedule an annual review. Pair your AGB with a clear privacy policy, and your legal foundation is solid.