General Terms and Conditions of Sale and Delivery

2. Price and payment

2.1 Unless otherwise agreed, payments are due immediately after delivery and receipt of the invoice, at the latest 14 days after the invoice date, net without deduction.

2.2 In the event of late payment of a claim for payment, interest on arrears shall be charged at a rate of 9% above the prime rate set by the European Central Bank.

2.3 Timeliness of payment shall be determined by the date of receipt of payment from which we can dispose of the amount. Bills of exchange and other means of payment shall only be accepted on account of performance. Discount, collection and other charges shall be borne by the customer.

2.4 The customer may neither offset counterclaims nor assert a right of retention on the basis of these claims unless they are undisputed or legally established claims or claims arising from the same legal relationship.

2.5 If, after conclusion of the contract, we become aware of circumstances which result in the customer's inability to pay or other significant deterioration of the customer's assets and if this jeopardizes our claim to payment, we shall be entitled to refuse the corresponding services under the contract. Our right to refuse performance shall lapse if the customer makes the payment owed or provides security in the amount of our endangered payment claim. If the customer fails to make the payment owed or provide adequate security within a reasonable period of time, we shall be entitled to withdraw from the contract to the exclusion of any claims for compensation by the customer.
 

3. Terms of delivery, transfer of risk

3.1    Unless otherwise agreed, our deliveries shall be “ex works” (EXW according to Incoterms 2020) at the agreed place of delivery.

3.2    If the goods are sent to the customer at the customer's request, we shall determine the forwarding agent or carrier, whereby the customer shall bear the shipping costs, unless otherwise agreed; the choice of the shipping route and the means of transport shall be made at our reasonable discretion without any guarantee for the cheapest and fastest shipment. In this case, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer when the goods are handed over to the forwarding agent or carrier, but at the latest when the delivery items leave our factory. If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for dispatch.

3.3    Returns to us must be agreed in each case. If we are not responsible for the reasons for the return shipment, we reserve the right to claim the processing costs from the customer.

3.4    Special packaging will be charged separately.
 

4. Dimensions, weight, quality and deadlines

4.1    Weight, quality and dimension specifications are only approximate. Deviations in accordance with DIN are permissible.

4.2    Partial deliveries and production-related excess or short deliveries are permitted to an extent that is reasonable for the customer.

4.3    The customer must inspect the goods immediately after delivery in the ordinary course of business. Defects recognizable in this context must be reported immediately; hidden defects must be reported immediately after their respective discovery. Any notification of defects by the buyer must be made in writing.

4.4    The stated delivery time is non-binding unless a binding delivery time has been expressly agreed. Compliance with the delivery dates also presupposes the clarification of all technical details of the deliveries as well as the existence of necessary approvals and is subject to timely delivery to us. We are entitled to adjust the delivery dates at our reasonable discretion if the aforementioned preconditions are not met in good time.

4.5     If the customer does not fulfill contractual obligations, including obligations to cooperate or ancillary obligations (such as the provision of approvals, making an agreed advance payment, providing documents) in good time, we are entitled to postpone our delivery dates - without prejudice to our further rights vis-à-vis the customer - until the fulfillment of the relevant obligations.

4.6    Deliveries ordered on call must be accepted by the customer within 6 months of conclusion of the contract at the latest, unless otherwise agreed.

4.7    If we are in default with deliveries due to a circumstance for which we are responsible, the customer's claims for damages and reimbursement of expenses due to our delay in delivery shall be limited to 0.5% of the net contract value of the goods in default for each full week of the delay in delivery, but not more than 5% of the net contract value in total. This limitation shall not apply in the event of intent or gross negligence or injury to life, limb or health. The customer may only withdraw from the contract due to our delay in delivery in accordance with the statutory provisions if we are responsible for the delay.

4.8    In cases of force majeure, the contractual obligations of both parties shall be suspended and agreed delivery dates shall be postponed accordingly by the duration of the force majeure event. Cases of force majeure include labor disputes, operational disruptions and other unforeseeable, unavoidable or extraordinary events that are beyond the control of the parties. The event of force majeure must be reported to the other party without delay. Both contracting parties are entitled to withdraw from the contract at the earliest six weeks after receipt of this notification.

4.9    The minimum order value is 300 euros.
 

5. Reservation of title

5.1    The delivered goods shall remain our property until all claims arising from the business relationship between us and the customer have been settled in full, in particular including the respective balance claims to which we are entitled within the scope of the business relationship with the buyer (“reserved goods”). This shall also apply to future and conditional claims.

5.2    Any processing or transformation of the goods subject to retention of title shall be carried out by the customer on our behalf without any obligations arising for us. The processed or transformed goods subject to retention of title shall continue to be deemed goods subject to retention of title. If the customer combines or mixes the goods subject to retention of title with other goods not owned by us, we shall be entitled to co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the value of the other goods used. If our ownership expires due to processing or transformation, combination or mixing, the customer hereby transfers to us the ownership or expectant rights to the new item to which he is entitled to the extent of the value of the reserved goods and shall store them for us free of charge. Our co-ownership rights are deemed to be reserved goods.

5.3    The customer is revocably entitled to sell the reserved goods in the normal course of business, provided that he assigns the claims from the resale to us now by way of security; we accept the assignment. The customer is not entitled to dispose of the reserved goods in any other way. If the reserved goods are resold by the customer together with other goods to which we have no title, the claim arising from the resale shall be assigned to us in the ratio of the value of the reserved goods to the value of the other goods. In the case of the resale of goods in which we have co-ownership shares, a part of the claim corresponding to our co-ownership share shall be assigned to us. We reserve the right to revoke the right of resale if the customer is in default of payment or if another important reason justifies the revocation.

5.4    The customer is entitled to collect claims from the resale of the reserved goods. We reserve the right to revoke the collection authorization if the customer is in default of payment or if another important reason justifies the revocation. In the event of revocation of the collection authorization, the customer is obliged, at our request, to inform his customers immediately of the assignment to us and to provide us with the information and documents required for collection. The customer is in no case authorized to assign the claims assigned to us by way of security.Der Kunde ist verpflichtet, die Vorbehaltsware pfleglich zu behandeln und auf seine Kosten gegen Feuer, Diebstahl und Wasser zu versichern.

5.5    The customer must inform us immediately of any enforcement measures taken by third parties against the reserved goods or the claims assigned in advance, handing over the documents necessary for intervention. 

5.6    We undertake to release the securities to which we are entitled in accordance with the above provisions at our discretion at the customer's request to the extent that their value exceeds the claims to be secured by 10%.
 

6. Warranty, notice of defects

6.1    The goods are in conformity with the contract if they comply with the contractually agreed specifications at the time of the transfer of risk (in the case of defects of title at the time of the transfer of ownership); the specifications of the goods are conclusively agreed in the contract with the customer. If the goods comply with the specifications, they shall also be in accordance with the contract and free from material defects if they do not comply with other objective requirements or any samples or specimens. Liability for a specific intended use or a specific suitability shall only be assumed if this is expressly agreed in the contract; the customer shall otherwise bear the risk of suitability and use.

6.2    Technical application advice, data and information on the suitability and use of our goods are non-binding, unless we have expressly declared them to be binding in individual cases. They do not exempt the customer from carrying out his own tests and trials. The application, use and processing of the goods are beyond our control and are therefore the sole responsibility of the customer.

6.3    In the event of complaints about the goods, the customer must immediately give us the opportunity to inspect the goods; on request, the goods complained about or a sample thereof must be made available to us at our expense. In the event of unjustified complaints, we reserve the right to charge the customer with the costs incurred by him (for freight, inspection, etc.).

6.4    At our discretion, we shall provide subsequent performance either by replacement delivery or by repair. The costs of subsequent performance to be borne by us shall not include installation and removal costs if the defect had already become apparent prior to installation. In the event of a replacement delivery, the customer shall, at our discretion, return the defective goods or dispose of them at our expense, unless disposal is unreasonable for the customer.  We may refuse subsequent performance if both variants of subsequent performance are only possible at disproportionate cost. If the supplementary performance fails, the customer may either reduce the price or withdraw from the contract. 

6.5    The customer's rights of recourse against us in accordance with § 478 BGB are limited to the statutory scope of the claims for defects asserted against the customer by end consumers and presuppose that the customer has fulfilled his obligation to give notice of defects in relation to us in accordance with § 377 HGB. Further limitations of liability remain unaffected by this.

6.6    The limitation period for claims due to defective goods or other services shall end one year after the start of the statutory limitation period. Notwithstanding this, the statutory limitation periods shall apply in the cases of § 438 para. 1 no. 1, § 438 para. 1 no. 2, § 634a para. 1 no. 2, § 445b BGB and fraudulent intent, as well as in the case of liability - whether due to a defect in the goods, a breach of our obligation to provide subsequent performance or any other breach of duty on our part - due to intent or gross negligence or injury to life, limb or health, as well as claims under the Product Liability Act. 

6.7    Rectification or replacement deliveries are always made as a gesture of goodwill and without acknowledgment of a legal obligation and do not restart the limitation period, unless there is an acknowledgment on our part with regard to any defects.

6.8    We reserve the right of ownership and copyright to all models, samples, illustrations, drawings and other documents. They may not be made accessible to others without our consent and must be returned to us immediately upon request. If the industrial property rights of third parties are infringed during the manufacture of the goods according to models, drawings, samples or other information provided by the customer, the customer shall indemnify us against all third-party claims.
 

7. Compensation for damages and expenses

7.1    Claims for damages and reimbursement of expenses by the customer (hereinafter referred to as “claims for damages”), irrespective of their legal basis, are excluded.

The above limitation of liability shall not apply

a) to claims for reimbursement of expenses pursuant to §§ 439 para. 3 sentence 1 and 445a para. 1 BGB;
b) insofar as we are liable under the Product Liability Act;
c) insofar as we are liable due to intent or gross negligence;
d) for claims for damages due to culpable injury to life, limb or health;
e) insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods (§ 444 BGB);
f) in the event of culpable breach of material contractual obligations, i.e. obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. However, our liability for breach of material contractual obligations shall be limited to compensation for foreseeable damage typical of the contract, unless there is intent or gross negligence or liability for injury to life, limb or health or under the Product Liability Act.

7.2    Insofar as our liability is limited, this shall also apply to the personal liability of our employees, auxiliary persons and legal representatives.

7.3    A change in the burden of proof to the detriment of the customer is not associated with the above regulations.

7.4    Other limitations of liability remain unaffected.
 

8. Confidentiality

8.1    The customer undertakes to keep all confidential information, including trade secrets, which it learns from us during the performance of the respective contract secret from third parties and to oblige its employees accordingly. Confidential information is information that is marked as confidential or whose confidentiality is evident from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or verbal form. This includes in particular know-how, data, calculation documents, samples, diagrams, drafts, plans, drawings, performance specifications, reports, customer reports, price lists, studies, results and instructions. 

8.2    The above obligation does not apply to information which (a) was demonstrably already known to the customer when the contract was concluded or is subsequently lawfully disclosed by a third party; (b) is publicly known when the contract is concluded or is subsequently publicly known, unless this is due to a breach of this contract; (c) must be disclosed due to legal obligations or by order of a court or authority.
 

9. Place of fulfillment, export control reservation, code of conduct

9.1    The place of performance for all obligations arising from a contract, including subsequent performance, is 52224 Stolberg, Germany.

9.2    The fulfillment of the contract by us is subject to the proviso that there are no obstacles to fulfillment due to national or international regulations of foreign trade law or embargoes and/or other sanctions.

9.3    The customer shall comply with the applicable provisions of national and international (re-) export control law when passing on the goods delivered by us or other services rendered by us to third parties in Germany and abroad. The customer shall in any case comply with the (re-)export control, sanction or anti-boycott regulations, in particular those of the Federal Republic of Germany, the European Union, the United Kingdom, Switzerland and the United States of America. The Customer shall not directly or indirectly sell, export or re-export to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this contract that fall within the scope of Article 12g of Council Regulation (EU) No. 833/2014.

9.4    To the extent necessary for export control checks, the customer shall, upon request, immediately provide us with all information about the final recipient of the goods, the final destination and intended use of the goods delivered by us or the other services provided by us as well as any export control restrictions in this respect.

9.5    The Buyer shall use its best endeavors and implement a monitoring mechanism to ensure that all third parties in the further trade chain, including potential resellers, comply with export control, sanctions or boycott regulations.

9.6    The customer shall indemnify us against all claims asserted against us by authorities or other third parties due to non-compliance with the aforementioned export control obligations by the customer, unless the customer is not responsible for this. This does not imply a reversal of the burden of proof.

9.7    Compliance with the obligations under clause 9 by the customer is of essential importance to us and we reserve all statutory rights in the event of a breach thereof.

10. Place of jurisdiction, applicable law, prohibition of assignment, written form and severability clause

10.1    The exclusive place of jurisdiction for all legal disputes is the court responsible for the registered office of Prym Fashion GmbH. Nevertheless, we shall also be entitled, at our discretion, to appeal to the court responsible for the customer's place of residence or branch office.

10.2    The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.

10.3    The customer is not entitled to assign his claims from the contract with us to third parties. § Section 354a HGB remains unaffected by this.

10.4    Insofar as these Terms and Conditions refer to a written form requirement, text form within the meaning of Section 126b BGB is sufficient to comply with the written form requirement.

10.5    Should an individual contractual provision or a separable part of a contractual provision be void or ineffective, the effectiveness of the entire contract and the remaining provisions shall remain unaffected.