1. These Purchasing Terms and Conditions apply exclusively to all transactions and contracts where BJB GmbH & Co. KG (hereinafter “BJB”) is the customer, the entity placing the order, or the entity giving the instruction. By accepting an order placed by BJB, the supplier or contractor (hereinafter referred to as the “supplier”) declares itself in agreement with these Terms and Conditions. If the order placed by BJB is confirmed by the supplier in deviation from these Terms and Conditions, even then only these Terms and Conditions shall apply, even if BJB does not object. Accordingly, any deviations shall only be valid if these have been expressly recognised in writing by BJB. If the supplier is not in agreement with the foregoing application, it must immediately expressly announce this fact in a special letter. BJB reserves the right in such case to revoke the order without this giving rise to a legal basis for any claims of any kind against BJB.
2. These Terms and Conditions also apply to future transactions even if no specific reference is made to them.
1. Supply agreements (ordering and acceptance) and on-call supply contracts as well as amendments and additions to the same require the written form. On-call supply contracts can also be effected by remote data transmission.
2. If the supplier does not accept the order within two weeks of receipt of the same, BJB shall be entitled to effect rescission without this being the basis for any claim of any kind by the supplier. On-call supply orders based on existing framwork contracts shall be at the latest binding if the supplier has not objected to the same within two weeks of receipt.
3. BJB can request, in the scope of reasonableness for the supplier, amendments to the delivery object details with regard to amount, design and quality. In this respect, the effects are to be managed in an appropriate, conjoint manner, particularly with regard to additional and reduced costs as well as the delivery date.
4. If the supplier is aware of better solutions or more suitable materials for fulfilment of BJB’s order on the grounds of technical development, it hereby undertakes to inform BJB of the same. The use of these better solutions or more suitable materials requires BJB’s written consent thereto.
5. The forwarding in whole or in part of orders to third parties requires BJB’s prior written consent.
III. Shipment and Invoices
1. The supplier is obliged to deliver the goods packaged free to BJB’s door (DDP pursuant to Incoterms in the version current when entering into the contract). Only upon receipt of the goods does the risk transfer to BJB.
2. Invoices citing the order particulars are to be handed over and/or sent.
3. In the event of delay in payment, BJB shall pay – in deviation from the statutory provisions – an amount of interest on arrears of 3 percentage points per annum above the basic interest rate, however at least 4% per annum.
IV. Prices and Payment
1. The agreed prices are fixed prices and exclude any kind of additional claims. Should nothing to the contrary be expressly agreed in writing, the prices are understood as including packaging, shipment costs, freight, haulage at destination, other costs and ancillary charges free to the delivery place named by BJB (DDP pursuant to Incoterms in the version then current when entering into the contract).
2. Payments are to be made after the date of the receipt of goods and the invoice on two monthly dates after deduction of 3% discount:
Receipt of goods and invoice by 5th day of the month: Payment on 15th day of the month.
Receipt of goods and invoice by 20th day of the month: Payment on 30th day of the month.
Otherwise, payment is to be made without discount within 60 days.
3. All payments are made subject to reservation and do not constitute confirmation of a proper delivery. In the event of defective deliveries, BJB is entitled to withhold payment in a reasonable amount until final clarification, and such withholding can be done without loss of discounts, etc. This shall also apply if the deliveries are made to companies in which BJB holds the majority shareholding.
4. The supplier shall not be entitled without BJB’s prior written consent, which may not be unreasonably withheld, to assign the claims against it or to allow them to be enforced by third parties.
V. Notice of Defects
1. The statutory provisions (§ 377 and § 381 of the German Commercial Code (HGB)) shall apply for the commercial inspection and complaint obligation, with the following proviso: BJB’s inspection obligation is limited to defects which can be visually identified during the incoming-goods inspection, including the delivery documentation, as well as are revealed during BJB quality control in random-sample inspection procedures (e.g. damage in transit, wrong deliveries or deliveries of insufficient quantities). Insofar as acceptance is agreed upon, there is no inspection obligation. In addition, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking the circumstances in the individual case into account. Insofar as a quality assurance agreement has been entered into or is to be entered into between the supplier and BJB, the provisions therein regarding the inspection and complaint obligation shall apply with priority.
2. In the case of deliveries to third parties, any potential examination and complaint obligation is borne only by the recipient of the goods, pursuant to the provisions in V.1 above.
3. If the recipient of the goods is not BJB, and the recipient is only made known after entry into the contract, V.2 above shall apply nevertheless, i.e. the complaint obligation (V.2) of the recipient shall replace BJB’s complaint obligation.
VI. Delivery Dates and Periods
1. Dates and periods agreed upon are binding. What is decisive for the compliance with the delivery date or the delivery period is the receipt of the goods by BJB, by its representative or arrival at the agreed place of use. If the delivery has not been agreed “free to place of use”, the supplier is obliged to make the goods available in a timely manner, taking the usual time for loading and shipment into account.
2. If the supplier anticipates that the agreed date cannot be adhered to, it must announce this fact without undue delay, giving the reasons and the estimated duration of the delay. However, that announcement does not release the supplier from its obligations pursuant to VI.1 above. Insofar as BJB declares itself in writing to be in agreement with an extension of the agreed delivery periods, the foregoing provisions of VI.1 above apply correspondingly to the new agreed periods.
3. In the case of deliveries before the contractually-agreed date, BJB reserves the right to send the goods back at the supplier’s expense, or to charge the supplier for the costs incurred by BJB through interim storage, and to deduct the same from the supplier’s invoices.
4. The same provisions apply to surplus deliveries as those regarding delivery before the contractually-agreed date.
5. In the event of delay by the supplier, then for every working day of the delay, BJB is entitled to demand 0.1%, however a maximum of 10%, of the price of the pertinent goods as a flat-rate compensation sum. However, the supplier is permitted to provide evidence that BJB has not suffered any loss at all, or that BJB has suffered significantly less loss than the flat-rate compensation sum demanded. Instead of the flat-rate compensation sum, BJB can rescind the contract and demand compensation of the loss actually suffered. More extensive legal claims in this regard remain unaffected by this provision.
VII. Origin, Composition and Safety of the Goods, Compliance
1. If nothing to the contrary is agreed upon in the individual case, then the supplier’s goods must have their customs-law origin in the European Union. The supplier is obliged to provide evidence of the customs-law origin of the goods to BJB upon the latter’s request and without charge, and in particular - according to BJB’s choice - to give individual supplier declarations and/or long-term supplier declarations in writing or via an online portal to be named by BJB if applicable, in each case including information about preferred origin characteristics, pursuant to EU Directive 1207/2001 and successive directives.
If BJB or BJB’s customers are charged by customs authorities due to erroneous origin declarations of their own, or if BJB or BJB’s customers suffer any other pecuniary disadvantage, and if this is due to errors in an incorrect origin notification by the supplier, then the supplier shall be liable therefor.
2. The supplier undertakes to specify to BJB precisely in declaration lists all of the substances which are contained in the goods to be supplied and to name the concentration as well as the percentage in the goods. In the event of the inclusion of new purchase components, the supplier is obliged to send BJB an updated declaration list without request. The same applies if additional substances are used, substances previously used are left out, and/or the composition and/or the concentration of the substances is changed. Moreover, the supplier is obliged to comply with the respectively applicable German and European law (prohibition, restriction, registration, evaluation, certification and labelling of certain substances), regardless of the supplier’s information in the declaration list(s). The supplier is obliged to comply with the limits named in EU Directives RoHS-II 2011/65/EU (lead, mercury, cadmium, hexavalent chromium, PBB, PBDE as well as any other pertinent substances) and WEEE 2002/96/EC and 2012/19/EU (synthetic materials with brominated flame retardants and other substances pursuant to Annex II to Directive 2002/96/EC and Annex VII to Directive 2012/19/EU), as well as the corresponding national implementation legislation, particularly the German Electric and Electronic Devices Act (ElektroG). The supplier guarantees in this respect that the products supplied do not contain any substances in concentrations for which there are restrictions pursuant to EU Directive RoHS-II 2011/65/EU or WEEE 2002/96/EC or 2012/19/EU as well as their implementation provisions.
3. In light of Regulation (EC) nr. 1907/2006 enacted by the European Parliament and the European Council on 18 December 2006 (“REACH Regulation”), the supplier undertakes to comply with all of the REACH Regulation obligations and to register all of the materials to be supplied or to only supply us with materials and preparations which are already registered. Moreover, all of the goods to be delivered are to be checked on the basis of the respectively current list of substances of very high concern (SVHC) pursuant to Article 57 of the REACH Regulation; any SVHC-containing materials listed thereon are to be promptly notified to us pursuant to the REACH Regulation.
4. The goods supplied by the supplier will be used in the manufacture of consumer products which are handed over to consumers for use. The supplier must fulfil the corresponding statutory requirements. In particular, the goods must be created in such a way that in the case of normal and correct use, or foreseeable incorrect use, the safety and health of consumers and third parties is not put at risk. In this regard, account is also to be taken of potential influences/effects on and by other products, product parts and ingredients, as well as through further processing.
5. For the case of the supply of goods which pursuant to the contractual agreements, pursuant to the contractually-stipulated or pursuant to the usual use are intended for further processing into items which are intended to come into contact with foodstuffs or which pass their components on to foodstuffs upon normal or foreseeable usage, or where it can be reasonably foreseen that in the case of normal or foreseeable usage they will come into contact with foodstuffs or their components will be passed on to foodstuffs (e.g. in oven lights or refrigerator lights), the supplier guarantees compliance with all foodstuffs-law legislation, ordinances and guidelines in their respectively-valid versions. In particular, the supplier guarantees that the goods have been manufactured in accordance with good manufacturing practice and that a complete set of documentation exists which allows traceability at any time pursuant to the rules of Regulation (EC) No. 1935/2004. Upon request, the supplier will make the corresponding documentation available to the ordering party.
6. The supplier guarantees that the items to be supplied are “DRC conflict-free” in accordance with the criteria of the US-American Dodd-Frank Wall Street Reform and Consumer Protection Acts as well as their implementation provisions, i.e. do not contain any conflict minerals (currently tantalum, tin, gold and tungsten) which directly or indirectly finance or support armed groups in the so-called “covered countries” (currently the Democratic Republic of Congo, Angola, Burundi, the Central African Republic, the Republic of Congo, Rwanda, Sudan, Tanzania, Uganda and Zambia). The supplier is obliged to give and to prove to BJB upon request all authoritative data (including quantitative analyses) regarding the presence of conflict materials in its goods, and to check continuously and to a sufficient extent that its goods are DRC conflict-free. The supplier is obliged to inform BJB without undue delay in writing if the supplier becomes aware of indications in its supplier chain that permit the conclusion that the assurances given pursuant to this paragraph are possibly not being complied with.
7. The supplier is obliged to inform BJB without undue delay if there are any indications that one of the prerequisites set out in VII.1 to VII.6 hereof cannot or can no longer be fulfilled with regard to the goods supplied or to be supplied by it. In such case, the supplier hereby undertakes to first only inform BJB and to agree with BJB whether and how it will subsequently inform third parties and authorities. The supplier hereby also undertakes to provide information, documents, samples and specimens free-of-charge to BJB if BJB requests the same in order to check whether the prerequisites set out in VII.1 to VII.6 above are being fulfilled, or to what degree they are not being fulfilled.
8. The supplier is obliged to organise its company in accordance with standards which correspond at least to the Code of Conduct prescribed by BJB GmbH & Co. KG which is published in the respectively-valid version on the Internet at www.bjb.com.
9. The supplier or third parties authorised by the supplier are obliged to comply with the operating regulations for engaged third-party companies which are published on the Internet at www.bjb.com after entering BJB’s company site. BJB accepts no liability for damage or loss which is suffered by the supplier or its vicarious agents as a result of a breach of the operating regulations. The supplier is liable in full for damage and loss which arises as a consequence of breaches of the operating regulations which are committed by people instructed by it.
1. In the event of a defective delivery, BJB can assert the statutory warranty rights. The statutory warranty period shall apply, however for at least 24 months after receipt. For parts replaced or improved within the warranty period, a new warranty period shall commence.
2. In urgent cases or in the event of delay, BJB can, according to its discretion and without announcement, arrange replacement of the goods or remove the defects or arrange their removal, at the supplier’s cost.
3. The supplier is liable for all damage and loss which it itself and/or its authorised people or employees culpably cause(s) or is responsible for in another way. Any limitation of liability with regard to intentional behaviour or gross negligence is hereby excluded.
4. For BJB’s security, the supplier hereby assigns to BJB now the warranty claims to which the supplier is entitled against its own suppliers. BJB hereby accepts this assignment and has the right to freely decide whether it will assert its claim against the supplier or the supplier’s own suppliers.
5. The supplier is obliged to reimburse BJB for all costs which BJB has to bear as a result of the defect in connection with its own warranties due to the sale of the delivery object and/or the manufactured article in which the delivery object has been installed or made a part. BJB has legal rights of recourse against the supplier pursuant to the corresponding application of § 478 and § 479 of the German Civil Code (BGB - legal recourse in the consumer goods purchase delivery chain) if BJB must take the purchased object back from its own customer as a result of its defectiveness, or if BJB’s own customer has reduced the price of that good, even if the contractual relationship between the supplier and BJB is not part of a consumer goods purchase delivery chain.
6. In the event of the delivery of parts or materials, the supplier particularly guarantees compliance with agreed specifications. Margins for defects are only permissible if they have been agreed upon in writing. BJB is entitled to check the compliance with these specifications and any defect margins at its own company or at the supplier’s company.
7. The specifications in inspection reports and similar certifications constitute quality and durability guarantees in the sense of § 443 of the German Civil Code.
8. The supplier must have the objects which are to be delivered inspected and approved by a recognised inspection department (e.g. the German TÜV) before delivery is effected.
9. In the event of the delivery of tools, moulds, and similar, the supplier guarantees compliance with the agreed dimensions and tolerances in particular. The sample pieces finished from the delivery object at BJB’s company or at the supplier’s company are the standard for compliance with the contractual agreements.
10. The supplier guarantees that the delivery object is free from third-party rights and in particular that third-party industrial property rights are not infringed.
IX. Product Liability, Release
1. If BJB is held liable to pay damages based on product liability which is attributable to the goods supplied by the supplier, then the supplier shall indemnify BJB upon request against third-party compensation claims, insofar as the cause lies within the authority and organisation area of the supplier and the supplier would itself be liable in the external relationship.
2. In this context, the supplier is also obliged to reimburse any expenses and losses which arise out of or in connection with a retraction, warning or a recall executed by BJB or ordered by an authority. BJB will inform the supplier about the content and extent of the measures to be implemented - insofar as possible and reasonable - and give it the opportunity of making a statement on the matter. Other statutory claims remain unaffected.
X. Right of Retention
A simple right of retention expressly desired by the supplier will not be objected to. However, any kind of extended right of retention and group clauses are objected to. The supplier is to release the securities held by it to the extent that their value exceeds by more than a total of 20% the value of the claims to be secured.
1. All the drawings, drafts, standards pages, printer’s copies, models, samples, tools and similar - in whatever form - which are made available by BJB to the supplier shall remain the property of BJB and are to be returned to BJB without request after delivery has been effected. They are be kept secret from third parties, carefully kept and stored, and may not be used for other purposes. It is particularly forbidden for the supplier to provide third parties with items produced with BJB’s tools.
2. The supplier hereby undertakes to keep confidential all not publicly known commercial and technical details which become known to it during the course of the business relationship, and not to allow third parties to have any access to the same. A corresponding obligation is to be imposed on employees and sub-suppliers.
3. These confidentiality obligations (XI.1 and XI.2) also apply even after the end of the business relationship. They only expire if and insofar as the commercial and technical knowledge contained in the drawings, drafts, standards pages, printer’s copies, models, samples, tools and similar has become generally known.
XII. General Provisions
1. The supplier grants BJB the right to process the data concerning the supplier which arises from the business relationship or is received in connection therewith in the framework of legal permissibility, regardless of whether the data comes from the supplier itself or from third parties.
2. Should a provision of these Terms and Conditions and the further agreement concerned be or become invalid, then the validity of the rest of the contract shall remain unaffected thereby. The contract parties are obliged to replace the invalid provision with a provision which comes as close as possible to realising the financial success of the invalid one.
3. Only the substantive law of the Federal Republic of Germany applies, and also the Incoterms in the version valid when entering into the contract, insofar as they do not conflict with these Terms and Conditions.
4. The place of performance for all performance owed by the two parties is BJB’s headquarters, regardless of the destination of the goods.
5. The courts of Arnsberg are locally and internationally competent for all disputes arising in connection with contractual relationships between the supplier and BJB
a) if the supplier is a businessperson, a public-law legal entity or a public-law special fund,
b) if the supplier does not have a general legal venue (residence, headquarters or usual domicile) inside the Federal Republic of Germany, or
c) if after entry into contract, the supplier moves its residence or usual domicile out of the area of the Federal Republic of Germany or if at the point in time of the initiation of legal proceedings its residence or usual domicile is not known.
BJB is also always entitled to sue the supplier in courts of the supplier’s general legal domicile.
6. German statutory provisions apply regarding summary proceedings for recovery of debts.