General Terms and Conditions of Delivery and Payment of Glyn GmbH & Co. KG
I. Definitions, Scope of Application
1. The following Terms and Conditions apply only in transactions with companies pursuant to article 310, paragraph 1 of the German Civil Code BGB.
2. Glyn GmbH & Co. KG (hereafter referred to as "Glyn") shall not be bound by any deviating or conflicting terms and conditions of the Purchaser, unless it has explicitly agreed to these terms in writing. The following Terms and Conditions shall also apply if Glyn has knowledge of conflicting or deviating terms and conditions of the purchaser, and executes the delivery to the purchaser without reservation.
3. Any agreements or collateral covenants shall only be valid if they have been confirmed in writing by Glyn.
II. Bid, Bid Documentation, Order Confirmation
1. If the order can be qualified as a bid to conclude a contract, Glyn many accept it within four weeks.
2. A delivery contract shall only become effective upon written order confirmation or upon delivery of the goods.
3. Orders for standard products can be placed without the need for a formal contract. Orders for custom-made products must be made in writing. Orders made by means of electronic data transfer are deemed made in writing. If Glyn is able to prove that a notification has been sent by fax or electronic data transfer, for example, by submitting the relevant transmission log, the Purchaser accepts that such a notification has been sent.
4. In the event of Glyn using the services of a telecommunications or media service company for the conclusion of a contract, the Purchaser shall waive its entitlement to a confirmation of the receipt of its order and a notification regarding the information that must be submitted in accordance with article 241 of the Introductory Act to the German Civil Code (EGBGB). Orders placed by means of electronic data transfer shall only be considered received if they have been retrieved and opened by Glyn. Glyn reserves the right to delete electronically transmitted orders unopened.
III. Order Cancellation, Postponements
1. Cancellations of orders for custom-made products and for products that have been purchased by Glyn exclusively for the purpose of the Purchaser order shall not be accepted. Cancellations of orders for other products require the explicit consent of Glyn. A cancellation fee of 25% of the order value shall be payable for any accepted cancellation.
2. Postponements or stops of orders by the Purchaser require the explicit consent of Glyn. If not agreed otherwise, Glyn shall be entitled to full payment of all outstanding amounts and make all deliveries that are still outstanding at the end of the contract period. If the average purchased quantity does not match the expected demands Glyn shall be entitled to deliver partial quantites.
IV. Prices, Terms of Payment
1. All prices are quoted ex Glyn distribution warehouse and are subject to value-added tax at the rate applicable at the time of invoicing. The quoted prices do not include packaging, which is invoiced separately.
2. Glyn reserves the right to change prices at any time without prior notice, provided that there are more than six weeks between the date of the contract and the agreed date of delivery. In the event that wages, material costs or market prices for purchased goods increased during the period from the order date, Glyn shall be entitled to amend its prices in line with the increase in costs. The Purchaser shall be entitled to withdraw from the contract, if the price increase is considerably above the rate of increase in the general cost of living between the order date and the date of delivery.
3. Unless otherwise agreed, all invoiced amounts are due in full upon delivery, or, at the latest, when the invoice is received. Invoices to foreign customers must be paid in full in advance or upon delivery. Glyn reserves the right to demand payment in instalments without having to give reasons for this decision.
4. For all means of payment, the date of receipt of payment shall be the date at which Glyn or a third party of which Glyn is a debtor has unrestricted access to the funds.
5. No matter what description is used, payments made by the Purchaser shall always be allocated to the oldest outstanding amount.
6. In the event of default in payment or if the credit limit is exceeded, Glyn shall be entitled to delay a delivery of goods until all outstanding amounts have been paid. Pick-up of goods is only possible after prior arrangement by telephone and against payment in cash. Drafts and post-dated cheques shall only be accepted in payment, pending full discharge of the debt, if agreed in advance between the parties in writing. All stamp duties, bank and collection charges shall be payable by the Purchaser.
7. If the Purchaser fails to meet its payment obligations, despite a reminder and a proposed deadline, or if insolvency proceedings have been initiated against its assets, all outstanding payments and auxiliary costs shall become due with immediate effect. In such a case, Glyn shall be entitled to withdraw from its obligations under the contract, to reclaim any goods that have not yet been paid for in full, and to claim reimbursement of all expenses arising from the withdrawal from the contract.
8. The Purchaser shall only be entitled to set off liabilities against receivables, if these are not contested by Glyn or have been found justified under law. The Purchaser shall only be entitled to retain payment in connection with a set-off if its claim arises from the same contract as that of Glyn.
9. In the event of a delay in payment, Glyn shall be entitled to suspend the delivery of goods or performance of service until all due amounts are paid in full.
V. Retention of Title
1. The goods supplied by Glyn shall remain its property until all payments due by the Purchaser are made in full.
2. The retention of title or the attachment of the goods by Glyn shall not be interpreted as withdrawal from the contract, unless Glyn has explicitly declared its withdrawal, or the transaction is subject to the regulations laid down in the German Consumer Credit Act.
3. The Purchaser is entitled to re-sell the goods as part of its ordinary business and shall assign to Glyn all receivables due to it from the resale at the agreed sales price (including VAT), irrespective of whether the delivered goods have been re-sold with or without prior processing by the Purchaser. The Purchaser shall be entitled to collect the outstanding amounts after assignment to Glyn. Glyn reserves the right to collect the outstanding payments directly from the Purchaser's customer. In such a case, Glyn, however, undertakes not to do this, if the Purchaser meets its obligations of payment and is not in default. In the event of default on the part of the Purchaser, Glyn is entitled to demand that the Purchaser discloses its claims against the customer as well as any other information required for the purpose of collection, that the Purchaser hands over the associated documents and notifies its customer of the assignment.
4. The processing of the goods by the Purchaser shall always be performed for the benefit of Glyn. If the goods are processed together with goods that are not purchased from Glyn, Glyn shall remain the owner of a share in the new products that represents the value of the goods supplied by it.
5. If the goods are mixed together with goods that are not purchased from Glyn, Glyn shall remain the owner of a share in the new products that represents the value of the goods supplied by it. The Purchaser shall hold in trust the property of Glyn.
6. Glyn undertakes to release the securities to which it is entitled at the request of the Purchaser, if the marketable value of the securities exceeds the outstanding claims by more than 20 percent. In this case, Glyn shall choose the securities to be released.
VI. Deliveries, Delivery Time
1. Glyn shall deliver the goods to the Purchaser under the provision that it receives the goods from its own suppliers in time.
2. The binding delivery time quoted by Glyn is subject to clarification of all technical questions regarding the delivery.
3. Glyn shall only be bound to its commitment of delivery, if the Purchaser meets all its obligations under the corresponding contract. Glyn shall be entitled to a plea of non-performance.
4. Partial deliveries shall only be accepted if they do not affect the usability of the goods.
5. In the event of Glyn being unable to make a delivery due to force majeure, strike or adverse weather conditions, or any other conditions over which it has no influence, the term of delivery shall be extended by the period for which performance was impossible.
6. In connection with orders for electronic and electromechanical components as well as for other products, Glyn shall be entitled to deliver more, or fewer, units than were ordered, provided that this is required for reasons of quality assurance and safety of transport.
7. For Kanban orders and special arrangements in connection with on-demand delivery contracts, "end of order on" is used instead of the calendar week code. If Glyn is unable to specify a delivery date in the order confirmation, "delivery date follows" is used instead of the calendar week code.
8. If the Purchaser does not specify the content of the on-demand deliveries, Glyn shall be free in choosing the goods for each delivery.
9. On-demand contracts for which no term has been agreed shall be valid for a maximum period of 12 months. At the end of the term of contract, Glyn shall be entitled to ship all goods covered by the agreement and not yet delivered. The minimum value of each on-demand delivery is EUR 200.
VII. Shipping, Transfer of Risk
1. Unless stated differently in the order confirmation, all deliveries are ex works. All goods are shipped at the risk and expense of the Purchaser. This also applies to returns of goods.
2. As far as Glyn is obligated under the relevant packaging regulations to take back the packaging material used for transportation, the Purchaser shall bear the costs for the return transportation of the packaging or any reasonable costs incurred by the reuse or recycling of the material, where this is possible and deemed appropriate by Glyn. The Purchaser undertakes to dispose of any packaging material that is not returned to Glyn in accordance with the applicable statutory regulations.
VIII. Property Rights
1. The Purchaser undertakes to inform Glyn without delay of any claims made by a third party regarding any rights in the delivered goods. In the event of legal proceedings, the Purchaser shall entitle Glyn to defend itself at its own expense. Glyn shall be entitled to carry out at its own expense all changes to the products that are necessary in order to avert proceedings for infringement of property rights of a third party.
2. In the event of a third party preventing Glyn from manufacturing or supplying certain goods due to alleged property right infringement, and if Glyn is not responsible for the alleged infringement, Glyn shall be entitled to temporarily suspend production or supply until a final judgement has been reached. If Glyn cannot be reasonably expected to resume its obligations under a contract after such a suspension, it is entitled to withdraw from the contract.
3. The Purchaser shall indemnify Glyn against any claims by third parties of property right infringement in connection with services or goods provided by the Purchaser to Glyn.
IX. Default Liability
1. Provided that the purchase contract is a fixed-date delivery contract pursuant to article 286, paragraph 2, no. 5, of the German Civil Code (BGB), or article 376 of the German Commercial Code (HGB), Glyn shall be liable for damages in accordance with the statutory regulations. Glyn shall also be liable for damages arising for the Purchaser from Glyn's failure to deliver the goods on time, provided that the Purchaser can prove that a continuation of the contract would not be in its interest.
2. Glyn shall be liable for damage caused to the Purchaser from its failure to perform its obligations under the contract on time in accordance with the statutory regulations, provided that the delay has been caused by intent or gross negligence on the part of Glyn or its subcontractors. If Glyn is found not to be in breach of contract in connection with a default, it shall only be liable for the foreseeable typical damage that might arise from the delay.
3. In the event of a substantial breach of contract on the part of Glyn, it shall be liable for damages in accordance with the relevant law. If Glyn is found not to be in substantial breach of contract, it shall only be liable for the foreseeable typical damage that might arise from the delay.
4. Default liability due to damage to life and limb or the health of a person shall not be affected by the above clauses.
5. With the exception of the above provisions, default liability shall not apply.
X. Liability for Defects
1. Products for which specifications have been submitted are deemed free of defects if their dimensions are within the recognised production tolerances. The Purchaser shall not be entitled to demand that the goods are fit for a particular purpose, unless this has been explicitly agreed in writing.
2. Glyn must be notified without delay of all obvious defects detected. If Glyn is responsible for the defect, it shall repair or replace the defective goods. In the event of a repair or reworking of the goods, Glyn shall bear all expenses, in particular, all costs arising in connection with transportation, labour and the procurement of materials, or arising from the repair or reworking, provided that these costs are not unreasonably inflated by the fact that the goods have been transported to a location other than the agreed place of performance.
3. If Glyn is unable to repair or rework the product, the Purchaser shall be entitled to withdraw from the contract or to demand a reduction in price.
4. Glyn shall be liable for defects in accordance with applicable law in cases where it fraudulently concealed the defect, or where it issued a warranty for a particular quality of the goods.
5. Glyn shall be liable for damage caused to the Purchaser from its failure to perform its obligations under the contract on time, provided that the delay has been caused by intent or gross negligence on the part of Glyn or its subcontractors. If Glyn is found not to be in breach of contract in connection with a defect, it shall only be liable for the foreseeable typical damage that might arise from it.
6. In the event of a defect caused by a substantial breach of contract on the part of Glyn, it shall be liable for damages in accordance with the relevant law. If Glyn is found not to be in substantial breach of contract, it shall only be liable for the foreseeable typical damage that might arise from the delay.
7. Glyn's liability in connection with damage to life and limb or the health of a person shall not be affected by the above clauses. The contract is subject to the German Product Liability Act.
8. With the exception of the provisions, liability for defects shall not apply.
9. A period of limitation of 12 months from the date of transfer or risk applies to claims made according to article 437 of BGB, unless the goods were used in accordance with their customary purpose in a building construction and have caused the construction to be defective.
10. The period of limitation in the event of a delivery recourse according to articles 478 and 479 of BGB is five years from the date of delivery of the defective goods.
XI. General Liability
1. The liability of Glyn for damages is limited in accordance with number X., paragraphs 5, 6 and 7, regardless of the legal nature of the claim, and, in particular, for claims based on culpa in contrahendo, other neglect of duty and fraudulent claims made for compensation for damages according to article 823 of BGB. Glyn shall not be held liable for any other damage.
2. Where the liability of Glyn in connection with claims for damage is excluded or limited by the above number, the exclusion or limitation shall also apply to the personal liability of employees, subcontractors and agents of Glyn.
3. A preclusive period of 18 months applies to the period of limitation for all claims that are not subject to the period of limitation for defects. The preclusive period begins at the time when the Purchaser should reasonably become aware of the defect and the identity of the person responsible for it.
XII. Counterclaims, Transferability
1. The Purchaser shall only be entitled to set off its liabilities against receivables, if these are not contested by Glyn or have been found justified under law. The Purchaser shall only be entitled to retain payment in connection with a set-off if its claim arises from the same contract as that of Glyn.
2. The Purchaser shall not be entitled to transfer its rights under the contract with Glyn to a third party, unless Glyn explicitly consents to this.
XIII. Right of Cancellation on the Part of Glyn
1. In the event of unforeseeable circumstances for which Glyn is not responsible and which considerably alter the commercial significance or content of the performance or have a significant impact on the operations of Glyn, it shall be entitled to withdraw from the contract in part or in full, unless the Purchaser cannot be reasonably expected to accept partial withdrawal. This also applies to events where it becomes apparent in retrospect that Glyn is not in a position to perform its duties under the contract for reasons for which Glyn is not responsible. This clause shall not affect the statutory rights of the parties of termination of the contract.
2. In the event of such a cancellation on the part of Glyn, the Purchaser shall not be entitled to claim compensation for damages. If Glyn intends to make use of its right to withdraw from the contract, it must notify the Purchaser, even in cases where the Purchaser has agreed to accept a delay in delivery.
XIV. Place of Performance, Jurisdiction, Applicable Law
1. Unless otherwise agreed, the place of performance is the place of the registered offices of Glyn.
2. If the Purchaser is a registered trader, a legal entity under public law, or a special asset governed by public law, any disputes arising from a contract shall be settled before a competent court at the place of the registered offices of Glyn. Glyn shall, however, be entitled to initiate legal action against the Purchaser before a competent court at the ordinary domicile of the Purchaser. This also applies if the Purchaser is not ordinarily domiciled in Germany, or moves its ordinary domicile to a country other than Germany, and in cases where the ordinary domicile of the Purchaser is not known.
3. The decision or declaration that one or more of the clauses of these Terms and Conditions are null and void shall have no effect on the remaining clauses.
XV. International Contracting Parties
If the Purchaser's domicile is located in a country other than Germany, the following applies:
1. All contracts shall be subject to German law.
2. In the event of conflicting contractual bids and declarations of acceptance, the delivery made by Glyn shall be considered a new bid made pursuant to the terms and conditions laid down in the last declaration made by Glyn.
3. In the event of breach of contract on the part of Glyn, Glyn shall only be liable for damage caused by intent or gross negligence.
4. If Glyn is obligated to replace a non-conforming single good, it shall not be obligated to replace the entire delivery.
5. A complaint by the Purchaser with regard to non-conforming goods must be made to Glyn within 6 months from the date at which the goods were transferred by Glyn to the Purchaser.
6. If one of the provisions in section XV is in conflict with the remaining General Terms and Conditions for Delivery and Payment of Glyn, the provisions in section XV shall have precedence.
7. The legally binding language of the contract is German. If the contracting parties agree to use another language, the German version shall remain binding in all cases.
Note re. article 26 of the German Federal Data Protection Act (BDSG): We store personal data of our customers in accordance with the above article.