How to incorporate standard terms internationally
How standard terms become part of the contract in international business, and what happens when both sides’ terms collide (battle of forms).
Most companies treat their standard terms like an attachment. In cross-border business, that is an expensive mistake, and I see it regularly in practice: the best standard terms are useless if they do not become part of the contract, and that fails more often than you would think. Where it fails, a dispute is governed not by your own terms but by statute, plus a law and a forum that nobody chose. Limitation of liability, retention of title, protection of trade secrets: provided for in the contract, legally without effect.
Standard terms do not apply on their own
Standard terms do not apply because a company has them. They must be incorporated into every single contract. That is not a formality: it decides whether, when it matters, your clauses apply or the statute does. And the requirements differ sharply depending on whether the business is domestic or cross-border. Everything in the terms hangs on that incorporation: where conditions of purchase or sale contain an Incoterms clause, it applies only if the terms themselves become part of the contract (on the clauses, see the article “Incoterms® 2020: practical overview”).
Domestic business: refer to your terms
In business between companies, Section 305(2) BGB does not apply. The terms need not be presented, and the other party’s consent is not required. It is enough that the other party can take notice of them in a reasonable manner. A clear reference usually does the job:
In domestic business, even a bare reference to terms available online can be enough, including a forum-selection clause they contain (Bavarian Supreme Regional Court (BayObLG), order of 14 August 2024 – 102 AR 84/24 e). This is exactly where the difference to international business begins.
International business: transmit your terms
In my practice, standard terms rarely fail on content; they fail at incorporation. This is the stumbling block, and it is not limited to the sale of goods. Where the UN Convention on Contracts for the International Sale of Goods (CISG) applies, incorporation is governed by the Convention’s own rules (Articles 14 et seq. and Article 8 CISG), not by the BGB. The courts and most commentators demand more than in domestic business: the user must transmit the text of the terms, or otherwise make it available, unprompted before or at the conclusion of the contract, for instance as a PDF.
The difference to domestic business is decisive. At home, the user may expect the other party to obtain the terms itself if need be, for instance by requesting them. Internationally, the opposite applies: the other party has no duty to inquire and does not have to obtain terms that were never transmitted. The reasonable opportunity to take notice, which is what the test asks for, is something only the user can create, by transmitting the text or otherwise making it available (BGH, judgment of 26 November 2020 – I ZR 245/19; the foundational case is BGH, judgment of 31 October 2001 – VIII ZR 60/01; likewise CISG Advisory Council Opinion No. 13). A bare reference to a website is, on the prevailing view, not enough (see Feldhusen/Niebling/Poleacov, AGB-Kommentar, 5th edition 2026 (forthcoming), UN-Kaufrecht (CISG); Piltz, NJW 2025, 2524, marginal no. 13; OLG Köln, judgment of 9 January 2025 – 8 U 46/23). In practice, transmission is therefore the safe route for every international contract, not just for the sale of goods.
How you transmit depends on the channel. If the contract is concluded on the user’s own website, say a supplier portal, a link is enough: the other party can read, download, and print the terms right there when contracting; a click-wrap confirmation secures the proof. By email, in contrast, the terms belong in the attachment, not just in a link. For contracts concluded orally, by letter, or by fax, a reference to terms available online is not enough anyway. The burden of proof always lies with the user.
No free pass: two often misread ECJ judgments
Two judgments of the European Court of Justice (ECJ) are often read as if transmission abroad were unnecessary. That is wrong. Both concern only the forum-selection clause, not the standard terms as a whole.
In Tilman (ECJ, judgment of 24 November 2022 – C-358/21), the court accepted a hyperlink to retrievable terms, but only for the question of whether the forum-selection clause had been validly agreed (decided under Article 23 of the 2007 Lugano Convention, which the ECJ interprets in line with Article 25 Brussels Ia Regulation). The same goes for the earlier click-wrap judgment (ECJ, judgment of 21 May 2015 – C-322/14, El Majdoub).
The reason: a forum-selection clause is a contract within the contract (Article 25(5) Brussels Ia Regulation). Whether it was validly agreed follows its own rules, not the CISG.
An arbitration clause is a separate contract too, but only its form follows separate rules (Article II New York Convention; OLG Stuttgart, order of 21 December 2015 – 1 SchH 1/15). Whether an arbitration clause contained in standard terms was agreed at all is a question the German Federal Court of Justice (Bundesgerichtshof, BGH) decides under the CISG, transmission requirement included: in the case it decided, trade association conditions containing the arbitration clause had never been transmitted, so the arbitration clause was not agreed, and the dispute belonged before the state courts (BGH, judgment of 26 November 2020 – I ZR 245/19). Anyone who concludes from the ECJ judgments that standard terms no longer need to be transmitted is confusing two different contracts.
Language matters
Even terms that were transmitted do not apply if they are drafted in a language the other party does not have to accept. What counts is the language of the negotiations or a world language. If even the reference to the terms is in a language the recipient does not understand and that is not the language of the contract, incorporation fails (see OLG Schleswig, judgment of 28 May 2020 – 16 U 138/19; OLG Hamm, judgment of 6 December 2005 – 19 U 120/05). In the end, what counts is the language in which the parties negotiated.
Case study: two sets of terms, in the end none
A German company sells an industrial plant to a Spanish group. Both put their standard terms on the table, and both fail, for different reasons:
Seller · Germany
- Language of terms
- English
- Transmitted
- no
not incorporated
no transmission
Buyer · Spain
- Language of terms
- Spanish
- Transmitted
- yes
not incorporated
wrong language
Everyone bears the consequences. Both sides lose not only their choice of law but their contractual protection:
- Seller: no limitation of liability, no retention of title, no provisions on intellectual property, none on late delivery.
- Buyer: no compliance requirements for the supplier, so no code of conduct, no supply-chain or sanctions clauses.
- Both: no contractual protection of trade secrets and, instead of the home solution they wanted, an uncertain law and an uncertain forum.
Both companies invested in their standard terms and stand there as if they had none. (On drafting a choice-of-law clause, see “No exclusion of private international law”; on protecting know-how without a contract, see “Effective protection of trade secrets”.)
When both sides’ terms collide: the battle of forms
The case study shows one danger: no terms at all. The second is the opposite. Both sides incorporate their terms effectively, but the clauses contradict each other; one set demands German law, the other Spanish. Such conflicting standard terms are known internationally as the “battle of forms”. Whose terms apply then? Three answers compete:
| Theory | Rule | Followed by, among others |
|---|---|---|
| Last word (last shot) | The terms last referred to without objection apply | close to the wording of Article 19 CISG and Section 150(2) BGB, but arbitrary |
| First word (first shot) | The terms introduced first apply | e.g. the Dutch Civil Code (Burgerlijk Wetboek) |
| Residual validity (knock-out) | Conflicting clauses fall away; the statute takes their place | the U.S. UCC, the UNIDROIT Principles, CISG-AC Opinion No. 13 |
Under the CISG, German courts follow the knock-out rule: the contract is formed, the conflicting clauses fall away, and the statute takes their place (BGH, judgment of 9 January 2002 – VIII ZR 304/00). That is the legally safe solution, but for the user it amounts to the same thing as failed incorporation: here too, your own clauses do not prevail.
And it does not apply everywhere. U.S. courts apply the mirror image rule under the CISG: any acceptance that deviates in substance is a counter-offer (U.S. District Court for the Northern District of Indiana, decision of 24 April 2023, Robert Weed Plywood v. Canusa Wood Products). Which rule governs therefore depends on which court hears the case, one more reason not to leave the collision to chance.
What you should do
- Transmit your terms, or make them available with proof, at every contract conclusion, including in ongoing business relationships.
- Separate the process: domestic and international, simple and well-rehearsed.
- Train procurement and sales. They decide incorporation in day-to-day business.
- Document. Record the transmission and the version that applies; where in doubt, an acknowledgment of receipt or click-wrap. The burden of proof lies with the user (on the evidence questions around email, see “Proof of receipt of an email”).
- Keep the last word: refer to your own terms last and reject the other side’s (defense clause). Under the knock-out rule this does not decide the matter, but it protects you where courts follow the last-shot rule.
- Check the language. Reference and terms in the language of the negotiations or a world language.
- In ongoing relationships, conclude a framework agreement that settles the legal terms once, excludes both sides’ standard terms, and declares later references to them irrelevant.
Conclusion
The best legal precaution is worthless if it does not become part of the contract. Standard terms that are not incorporated, or incorporated defectively, cost you the liability cap, the security interest, the protection of intellectual property and trade secrets, and the law and forum you chose. They create risk, a higher litigation risk when something goes wrong, and disputes over basics. The effort of clean incorporation is small by comparison. It is the only guarantee that your terms will actually apply when it matters. That is exactly what I take care of, before a risk becomes a dispute.
Frequently asked questions
Do standard terms have to be transmitted in international business?
Yes, on the prevailing view of the courts and most commentators. Unlike in domestic business, a bare reference is generally not enough across borders. The user must transmit the text, or otherwise make it available, unprompted before or at the conclusion of the contract, for instance as a PDF attachment. The other party has no duty to inquire; it does not have to obtain the terms itself.
Is a link to the website enough?
That depends on how the contract is concluded. If it is concluded directly on your website, an easily findable, printable link to the terms can be enough; a click-wrap confirmation secures the proof. If the contract is concluded by email, the terms belong in the attachment, not just in a link. For contracts concluded orally, by letter, or by fax, a bare reference to terms available online is not enough anyway.
Does this apply only to sales contracts and the CISG?
No, not necessarily. The CISG is the most important and most settled case in practice, because the requirement follows from the specifics of international dealings, not from the contract type. The standard is therefore sometimes extended to other international contracts, unless standard terms are customary in the industry; that extension is disputed. In international business, transmission is always the safe route.
Whose terms apply when both collide?
Under the knock-out rule, which the German Federal Court of Justice (BGH) applies to the CISG, the contract is formed, but the conflicting clauses do not become part of it. Their place is taken primarily by the CISG itself, and outside its scope by the law designated by private international law. If you want your terms to prevail, you will not achieve that by referring to them last; you need individually negotiated provisions that take precedence over standard terms, and in ongoing relationships a framework agreement.
Reference: Poleacov, P. (2026). How to incorporate standard terms internationally. INN.LAW. https://inn.law/en/perspectives/incorporating-standard-terms-international/