Purchasing Terms and Conditions
I. General matters:
These Purchasing Terms and Conditions apply to all orders (deliveries, work deliveries and performance) for Blomberger Holzindustrie GmbH, Blomberg, hereinafter referred to as “BHI”, in the effective version when the order is placed, as available on the Internet at www.delignit.com / General terms and conditions of business, and shall also be forwarded in writing upon request. They apply to all business relations with our partners and suppliers, regardless of the contractual basis. Partners and suppliers shall be referred to hereinafter as the “Vendor”.
Moreover, they apply as a framework agreement to all future business relations with the same vendor, without having to reintroduce such business relations into future transactions.
These Purchasing Terms and Conditions apply exclusively. Any other general terms and conditions of business do not apply even if they had not been explicitly contested in individual cases. Any contrary, differing or modifying general terms and conditions of the vendor only form part of the contract if we have explicitly consented thereto, and only in the sections in which we have specifically granted written consent to the validity thereof. This written consent requirement applies in all cases even if we accept the vendor’s goods/services unconditionally, with knowledge of its general terms and conditions.
Individual and specific agreements with the vendor (including subsidiary agreements, supplements, amendments and specifications) shall always take precedence over such terms and conditions. A contract or our written confirmation is decisive for their content. References to the applicability of statutory provisions are merely intended as clarification.
Our orders are placed in writing.
The vendor shall indicate any obvious errors and incomplete parts of the order, including on order documents, before acceptance; otherwise the contract is deemed not to have been concluded.
Our order shall essentially be confirmed in writing or carried out unconditionally within 5 working days.
If the vendor intends to refuse our order in the event of an ongoing business relationship, this shall take place within 5 working days; otherwise our offer is deemed accepted.
In the event of acceptance being declared late, we regard this as a new offer. This requires our explicit acceptance.
We may demand retrospective changes to services with appropriate adjustment to the remuneration if the change is customary, acceptable to the vendor in the individual case or we are able to present significant reasons, which were unforeseeable at the time of contract conclusion, including a significantly changed order situation.
If the vendor suspends deliveries an application is made to file insolvency proceedings for its assets, BHI is entitled, at its own discretion, to demand payment on delivery or collateral security. If the vendor fails to comply with BHI’s requirements within 5 working days, BHI is entitled to withdraw from the contract. If no withdrawal is carried out, BHI may retain 10% of payment for the relevant transaction as security for all contractual claims until expiry of the contractual warranty period.
IV. Delivery time:
The delivery time specified in the order is binding. If it has not been indicated in the order and has not been agreed otherwise, it shall be 5 working days from conclusion of the contract.
If the vendor is not expected to observe the delivery time for any reason whatsoever, it is obliged to inform us immediately in writing.
The factor determining compliance with the agreed delivery time is the receipt of the goods at BHI or at the relevant specified place of performance. If the vendor fails to perform its service, or to do so within the agreed delivery time, or is in default, BHI’s rights shall be determined pursuant to statutory regulations, which shall apply in particular to withdrawal and compensation. The provisions in the sections below are not affected.
If the vendor is in default, BHI may demand flat-rate compensation for damage caused by delay, regardless of any other claims, at 0.5% of the net price (delivery value) per completed calendar week, limited to 5% of the delivery value of the goods that have been delivered late. Proof shall be provided to the vendor, regardless of whether no damage or only minor damage has been caused. BHI is free to prove any greater damage.
V. Delivery, transfer of risk and delayed acceptance:
Without the prior written consent of BHI, the vendor is not entitled to arrange for performance of the liable service.
Delivery within Germany is carried out “free to the door” to the location indicated on the order. If no destination is indicated and nothing has been agreed to the contrary, delivery shall be carried out to our delivery point in Blomberg/Lippe.
The destination is always the place of performance. An obligation to provide always arises in this respect. The destination is also always the place of performance for any supplementary performance.
A delivery note shall be attached to the goods indicating the date (issue and dispatch), content of delivery (quantity, marks and numbers of packages) and our order code (date and number). If the delivery note is missing or incomplete, we are not responsible for resultant delays in handling and payment.
The risk of accidental loss and accidental deterioration of the object transfers to our company upon handover at the place of performance. If an acceptance procedure is agreed, this is decisive for risk transfer. Otherwise the statutory regulations of law on contracts for work and services apply accordingly to the acceptance procedure. If we are in delayed acceptance, this is deemed equivalent to transfer or acceptance.
In case of agreeing on INCOTERMS, the 2010 version shall apply.
BHI is only in delayed acceptance pursuant to statutory regulations. This shall not release the vendor from the specific obligation to provide its service if an identified or identifiable time is agreed for BHI activity or cooperation.
If the order relates to an unreasonable object to be manufactured by the vendor (single-unit production), the vendor has further rights only if we have expressly undertaken to cooperate and are responsible for failure to cooperate. This does not affect the vendor’s statutory right to claim reimbursement for its additional expenses (section 304 BGB).
VI. Prices, terms of payment and invoices:
The price indicated in the order is binding. Unless revealed to the contrary, the vendor’s effective prices at the time of the order are regarded as the fixed price, including statutory VAT, unless this is shown separately.
The price includes all the vendor’s services and ancillary services (e.g. including assembly and installation) and all additional costs, such as packaging, transport costs and insurances.
The vendor shall take back packaging materials from the delivery point free of charge if requested by BHI.
The agreed price is payable within 30 calendar days of delivery, performance and approval and verifiably correct invoicing. If BHI pays within 14 calendar days, BHI is granted a discount of 3% on the net value. If a delivery is received and accepted ahead of schedule then the due date of payment is based on the agreed delivery date.
Offset and retention rights and the defence of an unperformed or not fully performed contract are still completely possible for BHI. In particular BHI is allowed to withhold payments, including due payments, if and when BHI is still entitled to claims from defective deliveries.
The vendor only has a right of offset or retention against BHI for any claims under the same contractual relationship, which must be legally established or uncontested.
The invoice shall be submitted separately in 2 copies immediately after delivery. The order date, order number and handling reference shall be indicated on each invoice by BHI.
VII. Confidentiality, retention of title and assignment:
BHI hereby reserves all property rights and copyrights to diagrams, plans, drawings, calculations, executive instructions, product descriptions and other documents even if such rights are due to BHI’s customers or other third parties. Such documents shall exclusively be used for contractual performance and be returned to BHI following contract completion. Documents shall be kept strictly confidential in respect of third parties, even following completion of the contract. The confidentiality obligation only expires if and when the knowledge included in the transferred documents has become general knowledge.
The same applies accordingly to substances and materials (e.g. software, finished and semi-finished products) and to tools, templates, samples and other items that BHI has provided to the vendor for production. Such items shall be stored separately - unless modified - at the vendor’s expense and insured in the usual extent against loss and destruction.
Processing, mixing or combining items provided by the vendor is carried out on behalf of BHI. If third parties retain their property right in the event of processing, mixing or combining third-party objects, BHI acquires joint ownership of the new object in proportion to the value of the object provided against other objects.
Goods are assigned to BHI unconditionally and regardless of payment of the relevant price. All forms of expanded or extended retention of title are excluded in any case, meaning that any retention of title effectively declared by the vendor only applies until payment for items delivered to BHI. In the ordinary course of business, even before payment of the purchase price, BHI retains the right to resell the goods, assigning in advance the receivables arising (alternatively, applicability of simple reservation of title and reservation of title extended to resale).
Transfer of a claim against BHI to third parties is excluded, unless BHI grants specific written consent hereto. The Vendor is not entitled to collect claims through third parties without the explicit prior written approval of BHI.
VIII. Warranty and supplementary performance:
In case of defects of quality and title, other breaches of obligations and impaired performance by the vendor, the statutory regulations apply without restriction.
Those product descriptions, which – in particular through designation or reference in the order by BHI – form the subject of the contract or have been included in the contract in the same way as these Purchasing Terms and Conditions, are regarded as an agreement on quality, in case of which whether the product description comes from BHI, the vendor or the manufacturer is immaterial.
At variance from Section 442(1) clause 2 BGB (German Civil Code), BHI is entitled to claims for defects without restriction even if we were unaware of the defect upon contract conclusion as a result of gross negligence.
In respect of the commercial inspection and notification obligation, the statutory provisions of the Commercial Code shall apply, provided that BHI’s inspection obligation only relates to defects that are identifiable and evident from an external assessment, including shipping documents, and also from a random quality control check at the discretion of BHI to reveal defects that are evident and identifiable. There is no inspection obligation that goes beyond the above. Notwithstanding our duties to inspect goods, our complaint is also considered immediate and prompt if sent within five working days of discovery, or of delivery for obvious defects.
If the vendor fails to comply with its supplementary performance obligation – at the discretion of BHI, by eliminating the defect (defect remedy) or delivering a fault-free item (replacement) – within a reasonable deadline set by BHI, BHI is entitled to eliminate the defect itself and demand compensation from the vendor for necessary expenditure or an appropriate advance payment. If supplementary performance is aborted by the buyer or proves unacceptable to us (e.g. because of special urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline is required; the vendor shall immediately inform us hereof.
BHI is also entitled to reduce the purchase price or withdraw from the contract in case of a defect of quality or title under statutory regulations. In addition, BHI is eligible for compensation and reimbursement of expenses under the statutory regulations.
If BHI has already incorporated the goods into another item or attached them to another item in accordance with their intended purpose then the seller undertakes to make good to BHI the costs incurred in the course of the supplementary performance for the removal and subsequent reincorporation.
In the event that it emerges that there was no defect, BHI is liable only if we realised or through gross negligence did not realise that there was no defect.
Notwithstanding section 438(1) no. 3, the general limitation period for claims for defects is three years from the passing of risk. If an acceptance procedure is agreed, the limitation period begins on acceptance. The same applies to claims for defects of title, though this does not affect the statutory limitation period for surrender rights in rem of third parties. Claims for defects of title also do not lapse as long as the third party can still claim this right against us.
IX. Rights of use and defects of title:
If the vendor’s delivery includes software, rights or other items, use of which is only permitted by virtue of appropriate rights of use (licences), the necessary rights of use shall be transferred to BHI upon delivery without surcharge. The vendor is liable for the continued existence, assignability and enforceability of rights of use.
The vendor is also liable for making sure that industrial property rights (e.g. patents, utility models, trade names, or brands), copyrights and other third-party rights are not infringed through its delivery goods and their intended use.
If a third party makes a claim on BHI for an alleged infringement as defined above, the vendor is obliged to release BHI from such claims at the first request.
The vendor has liability in case of defects of title if third parties are entitled to enforce rights against BHI related to the subject of the contract, which the vendor is unable to enforce against BHI. If a right forms part of the contract, the same applies to its continued existence, assignability and enforceability.
If a defect of title exists, the vendor is obliged to procure the right to unrestricted continued use for BHI (defect remedy) or – at our discretion – to modify the subject of the contract in a manner that is acceptable to us, such that the defect of title no longer exists (replacement), and to release BHI from all third-party claims.
The vendor is liable for compensation and reimbursement of expenses even if it was unaware of the defect of title or is not responsible for such. The statutory right of BHI to reduce the purchase price or withdraw from the contract is unaffected.
X. Supplier recourse:
BHI has the unrestricted right to legally specified recourse claims within a supply chain (supplier recourse pursuant to Sections 478, 479 BGB), in addition to claims for defects. In particular BHI is entitled to demand the precise method of supplementary performance (defect remedy or replacement) from the vendor, for which BHI is liable to its customers in the individual case. The statutory right to choose (Section 439(1) BGB) is not restricted as a result.
Before BHI acknowledges or fulfils a defect claim enforced by one of its customers (including reimbursement for expenses pursuant to Section 478(3), 439 (2) BGB), BHI shall notify the vendor and request a written statement with a brief presentation of the facts. If the statement is not provided within a reasonable deadline and no amicable solution is produced, the defect claim actually granted by BHI is regarded as due to its customers; in this case the vendor is obliged to prove the contrary.
BHI’s claims under supplier recourse also apply in supplement to the statutory provision if the delivery of goods to a consumer has failed for any reason whatsoever. The same applies if the product was only delivered to a consumer after conversion or reprocessing by BHI or other customers.
XI. Producer liability:
If the vendor is responsible for product damage, it is obliged to release BHI from third-party claims at the first request, when the cause lies within its area of control and organization and it is personally liable in relation to third parties.
Within the scope of its release obligation the vendor shall refund expenses pursuant to Sections 683, 670 BGB, which result from or in relation to a third-party claim, including recalls implemented by BHI. BHI shall inform the vendor – where possible and reasonable – of the content and scope of recalls and provide it with the opportunity to make a statement. Further statutory claims are unaffected.
The vendor shall take out and maintain product liability insurance with flat-rate coverage of at least € 5 million per case of personal/material damage.
XII. Minimum wage
The vendor provides BHI with a guarantee that it will comply with the provisions of the German Minimum Wage Act and monitor compliance with such at its subcontractors. The Minimum Wage Act applies to any employment within Germany, for example in case of domestic installations of international contractors and employment of foreign workers in Germany. If no claim is made against BHI for noncompliance with the Minimum Wage Act at the vendor or its subcontractors as a jointly liable party, BHI shall be released from this obligation by the vendor at the first request. BHI may request that proof be provided of compliance with minimum wage regulations and associated documentation and reporting obligations. Moreover, BHI may demand that partners are no longer employed as subcontractors which appear to be unreliable. Further claims from BHI and the right to termination of the contract without notice are unaffected.
XIII. Statute of limitations, law and court of jurisdiction:
Unless stipulated otherwise in these Purchasing Terms and Conditions, mutual claims of the contractual parties become statute-barred pursuant to the statutory regulations. BHI explicitly rejects any shortening of these deadlines.
The law of the Federal Republic of Germany applies to these Purchasing Terms and Conditions and all legal relationships between BHI and the vendor in exclusion of all international and supranational (contract) law systems, in particular the UN Convention on Contracts for the International Sale of Goods, unless stipulated to the contrary in writing.
The court of jurisdiction for any disputes arising under the contractual relationship is the BHI business location in Blomberg. However, BHI is also entitled to bring action at the place of performance of the delivery obligation or at the supplier’s head office.
If the parties agree on arbitration proceedings according to the rules of the German Institution for Arbitration (DIS), the following shall also apply: the court consists of three arbitration judges. The court language is German or, at the discretion of BHI English.
BHI hereby reserves the right to update and adjust these terms and conditions at its equitable discretion within a reasonable period of time. The latest amended version applies to the business relationship with the client, unless the change is objected to in writing.
As at: February/2019