1. Scope
1.1 These General Terms and Conditions of Sale and Delivery ("Terms") shall apply to contracts, in particular for the sale and delivery of goods, between Prym Consumer Europe GmbH and any customer who is not a consumer within the meaning of § 13 of the German Civil Code (BGB). Within the scope of an ongoing business relationship, these Terms shall also apply to future contracts with such customers.
1.2 We hereby object to any terms and conditions of the customer that deviate from these Terms or statutory provisions and that we do not expressly accept in writing. Such provisions of the customer shall not be binding for us, even if we render services without reservation.
2. Price and Payment
2.1 In the absence of any agreement to the contrary, payments are due net without deduction immediately after delivery and receipt of the invoice, at the latest 14 days after the invoice date.
2.2 In the event of default in payment of a claim for payment, interest on arrears shall be charged at a rate of % 9 above the respective base rate set by the European Central Bank.
2.3 Decisive for the timeliness of payment is the date of receipt of payment, and thus the date from which we can dispose of the amount. Bills of exchange and other means of payment shall only be accepted on account of performance (“erfüllungshalber”). Discount, collection and other charges shall be borne by the customer.
2.4 The customer shall not offset counterclaims or assert a right of retention due to these claims, unless they are undisputed or legally established claims or claims from the same legal relationship.
2.5 If, after the conclusion of the contract, we become aware of circumstances that shows the customer's inability to pay or other significant deterioration of the customer's assets, and if our claim to payment is jeopardized as a result, we are entitled to refuse the corresponding services under the contract. Our right to refuse performance shall cease to apply as soon as the customer makes the owed payment or provides adequate security. If the customer fails to make the owed payment or provide adequate security within a reasonable period of time, we are entitled to exercise our right to withdraw from the contract to the exclusion of any claims for compensation on the part of the customer.
3. Delivery Conditions, Transfer of Risk
3.1 Unless otherwise agreed, our deliveries shall be made "ex works" (EXW according to Incoterms 2020) at the agreed place of delivery.
3.2 If the goods are sent to the customer at his or her request, we shall determine the forwarding agent or carrier, and the customer shall bear the shipping costs, unless otherwise agreed; the choice of the shipping route and the means of transport shall be made in this respect at our reasonable discretion without guarantee for the most favorable 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 no later than when the delivery items leave our works. 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 Return shipments to us require consultation with us in any case. Insofar as we are not responsible for the reasons for the return, we reserve the right to claim the processing costs from the customer.
3.4 Special packaging will be charged separately to the customer.
4. Dimension, Weight, Quality and Dates
4.1 Weight, quality and dimension specifications are only approximate. Deviations according to DIN are permissible.
4.2 Partial deliveries as well as production-related excess or short deliveries are permissible to an extent that is acceptable to the customer.
4.3 The customer shall inspect the goods immediately after delivery in the ordinary course of business. Defects recognizable within this scope shall be notified immediately; hidden defects shall be notified immediately after their respective discovery. Any notice of defects by the customer must be 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 clarification of all technical details of the deliveries as well as the availability of necessary approvals and is subject to timely self-supply. We are entitled to adjust the delivery dates at our reasonable discretion if the aforementioned prerequisites are not met in good time.
4.5 If the customer fails to fulfill contractual obligations, including cooperation or ancillary obligations (such as providing permits, making an agreed advance payment, providing documents), in a timely manner, we are entitled to reasonably postpone our delivery dates - without prejudice to our further rights vis-à-vis the customer - until such obligations have been fulfilled.
4.6 Deliveries ordered on call shall be accepted by the customer within 12 months after conclusion of the contract at the latest, unless otherwise agreed.
4.7 If we are in default with deliveries due to a reason for which we are responsible, claims for damages and reimbursement of expenses of the customer due to our default in delivery shall be limited to 0.5% of the net contract value of the value of the goods in default for each full week of the default in delivery, but not more than a total of 5% of the net contract value. This limitation shall not apply in the event of intent or gross negligence or injury to life, body or health. The customer may only withdraw from the contract due to our delay in delivery in accordance with the statutory provisions insofar as we are responsible for such 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 event of force majeure. Cases of force majeure shall include labor disputes, operational disruptions and other unforeseeable, unavoidable or extraordinary events beyond the control of the parties. The event of force majeure shall be notified to the other party without undue delay. At the earliest six weeks after receipt of this notification, both parties are entitled to withdraw from the contract.
5. Retention of Title
5.1 The delivered goods shall remain our property until complete fulfillment of all claims arising from the business relationship between us and the customer, in particular including the respective balance claims to which we are entitled within the scope of the business relationship with the customer ("Reserved Goods"). This shall also apply to future and conditional claims.
5.2 Any processing or transformation of the Reserved Goods shall be carried out by the customer on our behalf without any obligations arising therefrom for us. The processed or transformed Reserved Goods are still considered Reserved Goods. If the customer combines or mixes the Reserved Goods with other goods not owned by us, we are entitled to co-ownership of the new good in the ratio of the value of the Reserved Goods to the value of the other goods used. If our ownership expires as a result of processing or transformation, combination or mixing, the customer hereby transfers to us the ownership or expectant rights (“Anwartschaftsrecht”) to the new good to which it is entitled to the extent of the value of the Reserved Goods and shall hold them in safe custody for us free of charge. Our co-ownership rights shall be 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 already now assigns the claims from the resale to us by way of security; we accept the assignment. He or she shall not be 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 do not have title, the claim 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 event 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 any other 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 another important reason justifies the revocation. In the event of a revocation of the collection authorization, the customer is obliged, at our request, to immediately notify its customers of the assignment to us and to provide us with the information and documents required for collection. The customer shall in no case be authorized to assign the claims assigned to us by way of security.
5.5 The customer is obliged to treat the Reserved Goods with care and to insure them at his own expense against fire, theft and water.
5.6 The customer shall inform us immediately of any enforcement measures by third parties against the Reserved Goods or against the claims assigned in advance, handing over the documents necessary for an intervention.
5.7 We undertake to release the securities to which we are entitled under 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 transfer of risk (in the case of defects of title at the time of transfer of title); the specifications of the goods are conclusively agreed in the contract with the customer. If the goods comply with the specifications, they shall be deemed to be in conformity with the contract and free of material defects even 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 risk of suitability and use shall otherwise be borne by the customer.
6.2 Technical advice, data and information on the suitability and application of our goods are not 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. 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 shall immediately give us the opportunity to inspect the goods; upon request, the goods complained about or a sample thereof shall be made available to us at our expense. In the event of unjustified complaints, we reserve the right to charge the customer for 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 before 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 such 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 subsequent performance fails, the customer may either reduce the price or withdraw from the contract.
6.5 Recourse claims of the customer against us pursuant to § 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 complied with its obligation to give notice of defects in relation to us pursuant to § 377 of the German Commercial Code (HGB). Further limitations of liability remain unaffected by this.
6.6 The limitation period for claims based on defective goods or other services shall end after the expiry of one year calculated from the statutory commencement of the limitation period. Notwithstanding the above, 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 duty of subsequent performance or any other breach of duty on our part - for intent or gross negligence or injury to life, limb or health, as well as claims under the Product Liability Act.
6.7 Rectification of defects or replacement deliveries shall generally be made as a gesture of goodwill and without recognition of a legal obligation and shall not cause the limitation period to start anew unless there is an acknowledgement 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 industrial property rights of third parties are infringed during the production of the goods according to models, drawings, samples or other information of the customer, the customer shall indemnify us against all claims of third parties.
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"), regardless of the legal basis, are excluded. The above limitation of liability shall not apply: a) for 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) as far as we are liable due to intent or gross negligence; d) for claims for damages due to culpable injury to life, body 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 essential contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper performance of the contract and on the fulfillment of which the customer regularly relies and may rely. However, our liability for breach of essential contractual obligations shall be limited to compensation for the foreseeable damage typical for the contract, except in cases of intent or gross negligence or in cases of 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 any 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 provisions.
7.4 Other limitations of liability shall remain unaffected.
8. Confidentiality
8.1 The customer undertakes to keep secret from third parties all confidential information, including trade secrets, which he or she learns from us during the performance of the respective contract and to oblige his or her employees accordingly. In this context, confidential information is information that is marked as confidential or whose confidentiality results from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form. This includes in particular know-how, data, calculation documents, samples, diagrams, drafts, plans, drawings, performance specifications, reports, customer reports, price lists, studies, results, instructions.
8.2 Exempt from the foregoing obligation is information that (a) is proven to have already been known to the customer at the time of the conclusion of the respective contract or is lawfully disclosed thereafter by a third party; (b) is public knowledge at the time of the conclusion of the respective contract or is lawfully disclosed thereafter to the extent not based on a breach of the respective contract; (c) is required to be disclosed due to legal obligations or by order of a court or public authority.
9. Place of Performance, Export Control Reservation, Code of Conduct
9.1 The place of performance for all obligations arising from a contract with the customer, including subsequent performance, shall be 52224 Stolberg, Germany.
9.2 The fulfilment of the contract by us shall be subject to the proviso that there are no obstacles to fulfilment due to national or international regulations of foreign trade law or embargos and/or other sanctions.
9.3 When passing on the goods delivered by us or the other services provided by us to third parties in Germany and abroad, the customer shall comply with the applicable provisions of national and international (re-) export control law. In any case, the customer shall observe the (re-) export control, sanctions or antiboycott regulations, including but not limited to thereof the Federal Republic of Germany, the European Union, Great Britain, Switzerland and the United States of America. The customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this contract that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014.
9.4 If required for export control inspections, the customer shall, upon request, immediately provide us with all information on the final recipient, 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 Customer shall undertake its best efforts and introduce a monitoring mechanism to ensure that any third parties further down the commercial chain, including by possible resellers, comply with export control, sanctions or antiboycott regulations.
9.6 The Customer shall indemnify us against all claims asserted against us by authorities or other third parties due to the Customer's failure to comply with the aforementioned export control obligations, unless the Customer is not responsible for them. A reversal of the burden of proof is not associated with this.
9.7 Customer’s compliance with the obligations pursuant to Section 9 are of material importance to us and we reserve all statutory legal rights in case of breach accordingly.
9.8 The customer undertakes to observe our Code of Conduct for Business Partners and to comply with the requirements set out therein.
10. Jurisdiction, Applicable Law, Prohibition of Assignment, Written Form and Severability Clause
10.1 The exclusive place of jurisdiction for all legal disputes shall be the court responsible for the registered office of Prym Consumer Europe GmbH. Nevertheless, we are also entitled, at our discretion, to invoke 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 arising from the contract with us to third parties. § 354a HGB remains unaffected.
10.4 Insofar as these Terms refer to a written form requirement, text form within the meaning of §126b BGB shall be sufficient for compliance 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.