General Terms and Conditions of Delivery and Payment of Glyn GmbH & Co. KG
I. Definitions, Scope of Application
- The following Terms and Conditions apply only in transactions with companies pursuant to article 310, paragraph 1 of the German Civil Code BGB.
- 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.
- Any agreements or collateral covenants shall only be valid if they have been confirmed in writing by Glyn.
II. Review of Requirements for Products and Services
If the Customer informs Glyn of the intended use of the products or services they have ordered, Glyn's offer shall be based on the assumption that the topics addressed in the following questions are not relevant to the product requested by the Customer, unless the Customer has already informed Glyn otherwise. Should one or more of the following questions be relevant, the Customer shall be obliged to inform Glyn thereof before Glyn enters into any obligation towards the Customer.
Are there any requirements not specified in the enquiry regarding
- The packaging and delivery of the part to the Customer? (blister packaging, use of a specific packaging material, cleanliness requirements, handling of Customer's own load carriers);
- The handling of the part at the Customer’s premises? (robustness, shock and vibration resistance, drop heights);
- The storage of the part at the Customer's premises (insensitivity to environmental factors such as light, humidity, temperature, air pressure and inherent durability of the part);
- Production at the Customer's premises;
- The requirements for the part in the overall system (robustness, impact and vibration resistance);
- The influences of the part on its system environment;
- The influences of the system environment on the part;
- Temporal factors such as wear or material fatigue in the concrete shoring situation?
- The influences of the entire system on the part;
- The influences of the part on the entire system;
- Influences of the users of the overall system (e.g. contaminated work clothing, gross motor use, below-average level of training of the users);
- Influences of legal regulations, as far as they are known to the Customer;
- Are there any influencing factors for the intended use which differ from the normally assumed use in terms of space, time or technology or which should otherwise be specifically pointed out? (e.g. climatic conditions, average usage duration, no stable power supply);
- Which influencing factors can arise for the intended use under regional, climatic and legal conditions;
- Do influencing factors emanate from the environment of the overall system, insofar as it is not part of the scope of the order, which can have effects on the function, the functionality and/or the service life? (e.g. electromagnetic interference from nearby high-current masts);
- Does the Customer deviate in the use of operating and auxiliary materials from a quality and/or use of operating and auxiliary materials usually assumed;
- Is the part to be supplied by us subject to requirements with regard to mechanical, thermal or electrical load-bearing capacity, electrostatic compatibility, handling, which may necessitate modification of the part within the scope of further shoring or further processing;
- Which interface parameters are required for validation, including test methods, test methods and test equipment;
- Does the Customer have knowledge of legal or official requirements that deviate from the requirements usually assumed?
III. Offers, offer documents, order confirmation
- If the purchase order qualifies as an offer to conclude a contract, Glyn can accept the same within 4 weeks.
- A supply contract is only concluded by means of a written order confirmation or upon delivery at the latest.
- Orders for standard products can be placed informally. Orders for customised products must be placed in writing. Placing the order by remote data transmission shall satisfy the written form requirement. If Glyn can prove, by submitting a transmission report, that it has sent a declaration by fax or electronic data interchange, it shall be assumed that the Customer has received the declaration.
- If Glyn uses a teleservice or media service for the purpose of concluding a contract, the Customer shall waive the right to both be notified of the information specified in the statutory ordinance according to Art. 241 of the Introductory Act to the German Civil Code and to receive confirmation of receipt of their purchase order. Orders sent electronically shall not be deemed to have been received until they have been retrieved and opened by Glyn. Glyn reserves the right to delete purchase orders without opening them.
IV. Order Cancellation, Postponements
- 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.
- 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.
V. Prices, Terms of Payment
- 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.
- 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.
- 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.
- 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.
- No matter what description is used, payments made by the Purchaser shall always be allocated to the oldest outstanding amount.
- 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.
- 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.
- 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.
- 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.
VI. Retention of Title
- The goods supplied by Glyn shall remain its property until all payments due by the Purchaser are made in full.
- 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.
- 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.
- 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.
- 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.
- 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.
VII. Deliveries, Delivery Time
- Glyn shall deliver the goods to the Purchaser under the provision that it receives the goods from its own suppliers in time.
- The binding delivery time quoted by Glyn is subject to clarification of all technical questions regarding the delivery.
- 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.
- Partial deliveries shall only be accepted if they do not affect the usability of the goods.
- 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.
- 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.
- 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.
- If the Purchaser does not specify the content of the on-demand deliveries, Glyn shall be free in choosing the goods for each delivery.
- 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.
VIII. Shipping, Transfer of Risk
- 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.
- 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.
IX. Property Rights
- 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.
- 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.
- 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.
X. Default Liability
- 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.
- 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.
- 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.
- Default liability due to damage to life and limb or the health of a person shall not be affected by the above clauses.
- With the exception of the above provisions, default liability shall not apply.
XI. Liability for defects
- If a product is specified, it is free from material defects if recognised production-related tolerances are complied with. The Customer may only invoke their intended purpose of use if this has been expressly agreed upon in writing.
- Notification of and complaints concerning obvious defects must be submitted to Glyn immediately. If Glyn is responsible for a defect, rectification or replacement delivery shall be carried at Glyn’s discretion. In the event of rectification, Glyn is obligated to bear all expenses necessary for the purpose of rectifying the defect – particularly transport, travel, labour, and material costs – provided that these costs are not increased due to the fact that the purchased item was taken to a place other than the place of performance.
- If rectification fails, the Customer shall be entitled at their discretion to withdraw from the contract or request a reduction in the purchase price.
- Glyn shall be liable for defects according to the statutory provisions insofar as Glyn has fraudulently concealed the defect or has given a guarantee for the item’s condition.
- Glyn shall be liable for defects according to the statutory provisions insofar as the Customer asserts claims for compensation based on intent or gross negligence on the part of Glyn’s representatives or vicarious agents. Insofar as Glyn is not charged with intentionally breaching the contract in the context of its liability for defects, then their liability for compensation shall be limited to the foreseeable, typically occurring damage.
- Glyn shall be liable for defects according to the statutory provisions insofar as they culpably breach a fundamental contractual obligation. Insofar as Glyn is not charged with intentionally breaching the contract in this case, their liability for compensation shall be limited to the foreseeable, typically occurring damage.
- If the Customer has installed the defective item in another item or attached it to another item according to its nature and intended use, in the context of subsequent performance, Glyn is obligated to reimburse the Customer for the necessary expenses incurred for removing the defective item and installing or attaching the rectified or delivered item that is free from defects. The above shall not apply if Glyn can refuse the type of subsequent performance selected by the Customer as per Section 439, Para. 3 of the German Civil Code. To name but one example, Glyn may
refuse the Customer’s chosen type of subsequent performance if the costs of said subsequent performance exceed 150% of the value of the goods in a defect-free condition.
- Liability for defects due to culpable injury to life, limb, or health shall remain unaffected, as shall liability under the German Product Liability Act.
- Unless agreed otherwise above, liability for defects shall be excluded.
- Claims according to Section 437 of the German Civil Code shall become time-barred twelve months after the transfer of risk, unless the items have been used for a building according to their usual purpose and have caused the same to become defective.
- In the event of delivery recourse according to Sections 478 and 479 of the German Civil Code, the limitation period shall remain unaffected; it lasts five years, starting from the date on which the defective item was delivered.
XII. General Liability
- 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.
- 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.
- 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.
XIII. Counterclaims, Transferability
- 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.
- 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.
XIV. Right of Cancellation on the Part of Glyn
- 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.
- 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.
XV. Data Protection
- The Customer shall undertake to obtain legally effective declarations from all persons who communicate with Glyn in their name or on their behalf, on the basis of which these persons declare their consent that Glyn may collect, store, process and use the personal data of these persons for the purposes of processing and handling already concluded business transactions and current business, for initiating new contracts or for similar business contacts. In this context, personal data shall include, in particular, contact data such as: Name, address, position in company, telephone number, e-mail address etc. as well as data on specific knowledge, location and time of meetings and similar data.
- The Customer shall undertake to obtain legally effective declarations from all persons who communicate with Glyn in their name or on their behalf, on the basis of which these persons expressly agree that Glyn may transfer the personal data of these persons to third parties for the purposes of processing and handling already concluded business transactions and current business, for initiating new contracts or for similar business contacts.
- The Customer shall undertake to obtain legally effective declarations from all persons who communicate with Glyn in their name or on their behalf, on the basis of which these persons expressly declare their consent to Glyn only having to delete the personal data of these persons at the express request of the person concerned.
- Legally effective in the sense of the above provisions shall mean that the Customer must automatically determine the prerequisites for an effective declaration that are necessary in accordance with data protection law and the general law of obligations.
- If the Customer is not in possession of the aforementioned declarations, they shall be obliged to expressly notify Glyn thereof in writing.
- If the Customer breaches the aforementioned obligation to notify, or if it subsequently turns out that the declarations obtained from the Customer are invalid in whole or in part, the Customer shall indemnify Glyn against claims asserted against Glyn by third parties in connection with these breaches of contract. The statutory claims for damages to which Glyn is entitled in this connection shall remain unaffected.
- In all other respects, Glyn shall treat the Customer's personal data in accordance with the Federal Data Protection Act.
XVI. Place of Performance, Jurisdiction, Applicable Law
- Unless otherwise agreed, the place of performance is the place of the registered offices of Glyn.
- 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.
- 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.
XVII. International Contracting Parties
If the Purchaser's domicile is located in a country other than Germany, the following applies:
- All contracts shall be subject to German law.
- 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.
- 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.
- If Glyn is obligated to replace a non-conforming single good, it shall not be obligated to replace the entire delivery.
- 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.
- 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.
- 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.
Status: February 2019
We store personal data of our customers and adhere to the legal regulations. The storage takes place for purposes of the processing and completion of already completed business procedures and the current business, for the initiation of new contracts and/or for similar business contacts.
Within the framework of the statutory provisions, the Customer may request information regarding the personal data stored about them by Glyn. Should the Customer find that Glyn's conduct violates applicable law, they should contact Glyn directly. In the event of a justified complaint, Glyn shall immediately cease the infringement. A warning or judicial assertion shall not be required in such cases. Should the Customer assert the infringement of applicable law by way of a warning or by legal action, we point out that they must bear the costs incurred due to the lack of risk of repetition themselves.