In short and in plain language
Companies often have their own rules for buying. They are called purchasing terms. The seller has rules too. These are its terms and conditions.
For companies, the law is less strict than for private buyers. A clear note on the terms is usually enough. The buyer must be able to read and save them.
Often both sides say: only our rules count. Then the points where the rules clash do not count. The law fills that gap.
Some orders do not come through the shop. They come from the buyer’s own system or by email. For these, you need a contract first.
Save with each order which terms applied. We build this into your shop.
One buyer orders in the shop, a second sends the order from their ERP, a third sends an email saying “Our purchasing conditions apply exclusively”. In B2B trade, two sets of rules meet here: the seller terms of the merchant and the purchasing conditions of the customer. Toward businesses, German law applies different rules than in a consumer shop, because Section 305(2) and (3) BGB do not apply to standard terms used toward a business (Section 310(1) sentence 1 BGB). This article shows what notice and access look like in registration and checkout, what a defense clause achieves, what case law assumes when terms conflict, how punchout, EDI and email orders fit in, and how to record the terms version for every order. It is not legal advice: the clause wording belongs with your lawyer, the implementation in the shop is a technical task.
Key takeaways
- Section 305(2) and (3) BGB do not apply toward businesses (Section 310(1) sentence 1 BGB). Terms are included under general contract law: a clear notice and a reasonable opportunity to read them are usually enough.
- The Bavarian Supreme Court accepted a clear notice of the web address of the terms in an offer letter (BayObLG, 102 AR 84/24 e). In a shop, the same notice belongs in registration and checkout, with a link and a PDF download.
- According to the Federal Court of Justice, a general defense clause in principle excludes not only conflicting but also supplementary clauses of the other side (BGH, X ZR 42/99). Silence on a deviating order confirmation is in principle no acceptance.
- If seller terms and purchasing conditions conflict, the conflicting clauses usually do not become part of the contract. The rest of the contract remains valid, and statutory law fills the gap (Section 306(1) and (2) BGB).
- With punchout, EDI and email orders, the buyer never sees a shop checkout. The ranking of the terms belongs in a framework contract signed before the first order.
- A reference to terms available online without a specific version breached the transparency requirement toward consumers (BGH, III ZR 59/24). Version and date belong on every order, in the customer account and in the order confirmation.
What Section 310 BGB changes in a B2B shop
For consumers, Section 305(2) BGB sets out exactly when standard terms become part of a contract: when the contract is concluded, the user must expressly refer to them, give the other side a reasonable opportunity to take note of their content, and the other side must agree to them (Section 305(2) BGB). Standard terms are all contract terms pre-formulated for a large number of contracts that one party presents to the other when a contract is concluded (Section 305(1) sentence 1 BGB). Seller terms and purchasing conditions both qualify, just with the roles reversed.
Toward business customers, the special inclusion rule falls away. Section 305(2) and (3), Section 308 nos. 1 and 2 to 9 and Section 309 do not apply to standard terms used toward a business, a legal entity under public law or a special fund under public law (Section 310(1) sentence 1 BGB). A business is anyone who concludes a legal transaction in the exercise of their trade or independent professional activity (Section 14(1) BGB). If you want to make sure that only businesses order in your shop, the building blocks are described in the article on excluding consumers from a B2B shop.
What falls away is only the special form of inclusion, not inclusion as such. Toward businesses, too, terms only become part of the contract if both sides declare so, through offer and acceptance under the general rules of contract law. In 2024, the Bavarian Supreme Court held that an express inclusion between businesses can be effective even if the terms were not attached to the relevant letter and the customer does not know their content; the user must, however, enable the business to take note of them in a reasonable way (BayObLG, 102 AR 84/24 e, para. 19).
Content review remains. Section 310(1) sentence 1 BGB does not exclude Section 307, so the transparency requirement also applies in B2B: an unreasonable disadvantage may also arise from a provision not being clear and comprehensible (Section 307(1) sentence 2 BGB). The 15 prohibited clauses of Section 309 BGB do not apply directly (Section 310(1) sentence 1 BGB). Through Section 307, however, a clause listed there can be invalid toward businesses as well; customs and practices that apply in commercial dealings must be taken into account appropriately (Section 310(1) sentence 2 BGB). Surprising clauses do not become part of the contract either (Section 305c(1) BGB), and doubts in interpretation go against the user (Section 305c(2) BGB).
| Point | Consumer shop | B2B shop |
|---|---|---|
| Inclusion of the terms | express notice, reasonable opportunity to read and agreement when the contract is concluded (Section 305(2) BGB) | general contract law; a clear notice and a reasonable opportunity to read are usually enough (Section 310(1) sentence 1 BGB) |
| Advance agreement for future contracts | only under the conditions of Section 305(3) BGB | without the requirements of Section 305(3) BGB, for example in a framework contract or at registration |
| Retrieving and saving when the contract is concluded | required (Section 312i(1) sentence 1 no. 4 BGB) | also required; the exception for agreements between businesses covers nos. 1 to 3 and sentence 2, not no. 4 (Section 312i(2) sentence 2 BGB) |
| Prohibited clauses of Section 309 BGB | apply directly | do not apply directly but can lead to invalidity through Section 307 BGB (Section 310(1) sentence 2 BGB) |
| Transparency requirement | applies (Section 307(1) sentence 2 BGB) | applies as well |
| Terms of the other side | practically never occur | purchasing conditions of the customer, often with their own defense clause |
Notice and access in registration and checkout
For the shop, this means: the notice of the seller terms must be clear and must appear where the contract is concluded. In the Bavarian case, a supplier had expressly referred in its order letter to its terms at a stated web address. That was enough: within its commercial duty of care, the ordering company could be expected to retrieve the terms there or to request them (BayObLG, 102 AR 84/24 e, para. 20). The contract in that case was concluded by letter and email. In a shop, the path to the terms is even shorter, because notice and link sit in the same medium as the order.
Access means more than being able to read. Anyone concluding contracts in electronic commerce must give the customer the opportunity to retrieve the contract terms, including the standard terms, when the contract is concluded and to save them in a reproducible form (Section 312i(1) sentence 1 no. 4 BGB). Between businesses, only nos. 1 to 3 and the receipt rule in sentence 2 can be waived by agreement, not no. 4 (Section 312i(2) sentence 2 BGB). A PDF download next to the link makes saving tangible. A page that only opens in an overlay and cannot be saved is the weaker solution.
A second good place is registration. Since Section 305(3) BGB does not apply toward businesses either (Section 310(1) sentence 1 BGB), merchant and business customer can usually agree on the seller terms for future orders as early as the approval of the customer account, for example through consent in the registration form or a signed framework contract. How the approval itself works is described in the article on onboarding and registering business customers. The notice at checkout still makes sense, because it shows the version that applies to exactly this order.
In Shopware 6.7, the checkout shows a card “Terms and conditions and cancellation policy” with the mandatory checkbox “I have read and accepted the general terms and conditions.”; the link opens the page assigned as “Layout for GTC pages” in the basic information settings (Shopware source code). With the feature flag v6.8.0.0, the checkbox becomes a setting “Customers are required to agree to the terms and conditions” (Shopware source code). If it is off, checkout only shows the sentence “By placing your order you accept our Terms and Conditions and cancellation policy.”, and the migration creates the setting switched off unless a value already exists (Shopware source code).
For a pure B2B shop, both variants work, because the law does not require a checkbox toward businesses. You should adjust the text, though: the default wording mentions the cancellation policy, which usually does not fit a shop for businesses only. A sentence such as “Our seller terms in the version of October 1, 2026 apply; the buyer’s purchasing conditions do not apply.” is clearer, refers to a specific version and includes the defense right away. Agree on the exact wording with your lawyer; the implementation in text snippets, CMS page and checkout is a job for Shopware development.
- Notice of the seller terms at checkout, directly above the order button
- Link to the terms page and download as a PDF with version and date
- Consent to the terms at registration or in the framework contract
- Text snippets without a reference to a right of withdrawal if only businesses order
- Terms version in the order confirmation and in the order overview of the customer account
- The same notice in quotes that the sales team creates from the shop
The defense clause: what it does and what it does not
Purchasing conditions are the standard terms of the buyer. From the procurement point of view, they cover payment terms, warranty, liability, place of jurisdiction or confidentiality, and they often contain a defense clause: a sentence stating that deviating terms of the supplier do not apply. Seller terms contain the same sentence in the opposite direction.
How far such a clause reaches was decided by the Federal Court of Justice on October 24, 2000. A customer had ordered an edge processing line; the order contained the sentence that deviating terms, unless set out in the order itself, do not apply. The supplier had referred in its offer and order confirmation to industry delivery terms for machine tools that contained a ban on set-off (BGH, X ZR 42/99). The lower court considered the ban on set-off agreed, because the customer’s terms were silent on that point. The Federal Court of Justice disagreed: a general defense clause is in principle meant to exclude not only conflicting but also additional, supplementary clauses (BGH, X ZR 42/99).
For the merchant, this means two things. First, a defense clause in your own seller terms prevents supplementary clauses from the customer’s purchasing conditions from silently applying. Second, it helps little if the customer uses the same clause in the opposite direction: then defense meets defense, and for the points both sides regulate differently, usually neither version applies but statutory law (Section 306(2) BGB). A defense clause is therefore a shield against the other side’s additions, not a tool for enforcing your own terms against a customer with their own defense.
Your seller terms therefore need a small number of building blocks whose wording your lawyer defines:
- Scope: the terms apply toward businesses, legal entities under public law and special funds under public law, exactly the group named in Section 310(1) BGB.
- Exclusivity: only these terms apply; deviating and supplementary terms of the customer only apply if the merchant expressly agrees to them.
- Ranking: individually negotiated agreements, for example in a framework contract or a quote, take precedence. The law provides for this anyway (Section 305b BGB); the clause makes it visible to both sides.
- Version: date or version number appear in the terms document itself, not only in the file name.
- Clarity: short sentences and unambiguous terms, because doubts in interpretation go against the user (Section 305c(2) BGB).
Taking delivery is not automatically consent
When both sides send their terms
The typical B2B sequence: the customer orders with a reference to their purchasing conditions, the merchant confirms with a reference to their seller terms. Legally, such a confirmation is not an acceptance, because an acceptance with additions, restrictions or other changes counts as a rejection combined with a new offer (Section 150(2) BGB). Anyone concluding that the last word wins is usually wrong: merely accepting the modified order confirmation without objection is in principle not a tacit acceptance (BGH, X ZR 42/99).
Still, the contract is usually performed in such cases: both sides deliver and pay. In the case before the Federal Court of Justice, the dispute was about the remaining payment for a delivered line, and the court spoke of the contract concluded between the parties; the supplier’s disputed clause, however, did not become part of it (BGH, X ZR 42/99). For what is then missing, Section 306 BGB sets the direction: if standard terms have not become part of the contract in whole or in part, the rest of the contract remains valid (Section 306(1) BGB), and its content is governed by the statutory provisions to that extent (Section 306(2) BGB).
For the shop operator, the result matters more than the theory. Whatever the seller terms set differently from the law, for example a shorter warranty period, a limitation of liability or a place of jurisdiction, is usually not agreed if the terms conflict. How much a place of jurisdiction alone can be worth is shown by the decision of the Bavarian Supreme Court of August 14, 2024: because the supplier’s terms had been included effectively, their jurisdiction clause applied, and the court rejected the ordering company’s application to designate a common court for its claim against two parties (BayObLG, 102 AR 84/24 e).
| Situation | What usually applies | Reference |
|---|---|---|
| Only the merchant refers to its terms, the customer orders without its own | seller terms apply if the notice was clear and the terms could reasonably be retrieved | Section 310(1) sentence 1 BGB; BayObLG, 102 AR 84/24 e |
| Customer orders with purchasing conditions, merchant confirms with its own terms | the confirmation counts as a new offer, silence on it is in principle no acceptance | Section 150(2) BGB; BGH, X ZR 42/99 |
| General defense clause in the terms of one side | in principle also excludes supplementary clauses of the other side | BGH, X ZR 42/99 |
| Both sides perform the contract anyway | the contract exists, the disputed clauses do not become part of it | BGH, X ZR 42/99 |
| Gap left by clauses that were not included | the rest of the contract remains valid, statutory provisions apply | Section 306(1) and (2) BGB |
| Individually negotiated agreement, for example in a framework contract | takes precedence over the terms of both sides | Section 305b BGB |
Some points have their own rules, for example retention of title or deliveries abroad, where the UN Convention on Contracts for the International Sale of Goods has rules of its own. These points belong in the legal review of your terms, not in a shop setting. Which questions this raises for processes and systems is something we clarify in e-commerce consulting.
Orders via punchout, EDI and email
A large part of turnover from electronic orders does not go through a shop checkout. EU enterprises with at least 10 employees generated 8.39 percent of their turnover via websites and apps in 2024; of this, 4.34 percent came from web sales to other enterprises and public authorities and 4.04 percent from web sales to consumers (Eurostat). EDI-type messages, meaning orders sent from system to system, accounted for 11.07 percent of turnover (Eurostat). For these EDI orders, no buyer sees a notice in a shop checkout.
With punchout, the buyer jumps from their procurement system into the shop, builds a cart and transfers it back; the binding order is then created by their own system, often with a reference to the company’s purchasing conditions. How this works technically is explained in the article on punchout and OCI catalogs. For your terms, this means: the notice belongs not only in the punchout session but above all in the agreement that starts the connection. We set up the connection itself as a punchout and OCI integration.
The place for this agreement is a framework contract, signed before the first order, that sets the ranking: first the individual agreements of the framework contract, then the seller terms, and purchasing conditions only insofar as they are expressly included. Individual contract agreements take precedence over standard terms (Section 305b BGB); whatever is negotiated in the framework contract overrides both sets of terms. The same contract works for customers with quotas and fixed prices, see framework contracts and call-off orders in the shop.
For EDI, the same applies in a stricter form. Two systems exchange structured messages, and there is no room for a notice. Which terms apply is governed by the agreement under which the EDI connection is set up. The technical side is described in the article on EDI connections for key accounts.
Email orders are the least transparent channel. The law exempts contracts concluded exclusively by individual communication only from nos. 1 to 3 (Section 312i(2) sentence 1 BGB); the exception does not mention no. 4 on retrieving and saving the terms. In practice: the order confirmation names the seller terms with version and link and attaches them as a PDF. If the order email refers to purchasing conditions, that is a case for the defense clause and for a check by the sales team before confirming. If the sales team enters such orders directly in the customer account, the article on ordering on behalf of the customer helps with permissions and logging.
Shop checkout
Notice above the order button, link and PDF, version on the order. The customer sees the terms at the moment of ordering.
Punchout and EDI
No checkout in the shop. The ranking of the terms is set in the framework contract signed before the connection goes live.
Email and phone
Order confirmation with terms version, link and PDF. The sales team checks references to purchasing conditions in the order email before confirming.
Record the terms version for every order
Terms change, orders stay. Anyone arguing years later about a warranty period or a place of jurisdiction needs the version that applied when that contract was concluded. On July 10, 2025, the Federal Court of Justice ruled on a telecommunications provider that had only referred to its terms available online in an application form sent by mail. Under the required interpretation least favorable to the customer, this reference also covered all versions posted at the address in the future (BGH, III ZR 59/24, para. 20). Without a link to a specific version, a different reading was not compelling (BGH, III ZR 59/24, para. 23), and the clause was invalid under the transparency requirement (BGH, III ZR 59/24, para. 18).
The case concerned consumers in a collective action. The transparency requirement of Section 307(1) sentence 2 BGB applies toward businesses as well, though. Whether a court would assess a dynamic reference in B2B the same way is open. The effort to avoid finding out is small, because a reference to a specific version provides both transparency and evidence. For contracts concluded online, the court itself names linking to a specific version of the contract terms as the counterexample to a mere reference to an address (BGH, III ZR 59/24, para. 23).
Shopware CE has no dedicated field for this. The order has a customer comment, an internal comment and freely definable custom fields, but no field for the terms version (Shopware source code). A small extension writes the version number and checksum of the valid terms into a custom field of the order at checkout. From there, the version flows into the order confirmation, the order overview of the customer account and, through the interface, into the ERP. What a properly managed version includes:
- a version number or date in the terms document itself, not only in the file name
- an archive of all versions with their validity period that is not overwritten on updates
- the version as a custom field on every order, including orders from punchout, EDI and the sales team
- the version as a PDF in the order confirmation and in the customer account
- the handover of the version to the ERP so that invoices and dunning refer to the same version
Where the documents are stored afterward and how long they are kept is described in the article on order documents in the customer account. The terms version is one more document per order that the customer can retrieve. We build the display in the portal as part of a B2B customer portal.
Clear terms in your shop in six steps
- Inventory: which order channels exist (shop, punchout, EDI, email, phone), and where does the customer see the seller terms today?
- Legal review: align scope, defense clause, ranking and version in the seller terms with your lawyer.
- Adjust the shop: notice and link above the order button, PDF download, text snippets without a withdrawal notice, consent at registration.
- Store the version: version number on every order as a custom field, passed on to order confirmation, customer account and ERP.
- Update framework contracts: for punchout and EDI customers, put the ranking of the terms in writing before the next order.
- Brief the sales team: recognize order emails that refer to purchasing conditions and confirm them according to a defined process or follow up.
Steps 3 and 4 are manageable in Shopware: text snippets, a CMS page with a download and a custom field with a small extension. It takes more work where the version has to pass through the ERP and the punchout connection; we plan this together with the integrations to your ERP. How such items fit into the overall budget is shown in the article What does a B2B shop cost? For the order of the steps and the coordination with your lawyer, e-commerce consulting before the first ticket is a good start.
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