Prym Fashion Zhongshan T&Cs - English

General terms and conditions of purchase of the Prym Group

(06/09/2024)

Scope
1. These General terms and conditions of purchase (hereinafter referred to as: “Conditions”) apply to all purchase, works, work supplies, service contracts or other deliveries and services including ancillary services rendered to us (hereinafter referred to as: “Deliveries”). They apply to transactions with any person dealing in the course of business. (hereinafter referred to as: “Supplier”).
2. Within the framework of an ongoing business relationship, these Conditions also apply to all future purchase, works, work supplies, service contracts or other contracts with the Supplier, without us having to refer to these Conditions again in each individual case.
3. Any terms and conditions of the Supplier that conflict with or deviate from our Conditions or legal provisions shall not apply unless we have expressly agreed to their validity in writing. This also applies if we have not expressly objected or if we have accepted Deliveries without reservation or made payments without reservation.
4. We reserve the right to change these Conditions even if they have become part of the contract. A change to the Conditions becomes part of the contract concluded between us and the Supplier if (i) we notify the Supplier of the change and, to the extent that it is disadvantageous for the Supplier, highlight it in print in the notification of change which will be sent by us to the representative designated by the Supplier via the e-mail address of such representative which will be provided to us at the signing of these Conditions; and (ii) the Supplier does not object to a change in writing within six weeks of receipt of the notification of change, whereby we shall point out the legal consequences of not objecting in the notification of change.
Conclusion of contract
1. The conclusion of a contract between us and the Supplier requires our written order or our written confirmation of the conclusion of the contract.
2. The Supplier must accept orders from us in writing within five (5) working days. Receipt of the declaration of acceptance (order confirmation) by us is decisive for the timely acceptance of the order. If the content of the order confirmation of the Supplier deviates from our order, the Supplier must particularly emphasise this in the order confirmation; such deviations only become part of the contract if we accept them in writing.
3. A contract between us and the Supplier is also concluded if the Supplier carries out the Deliveries specified in an order without reservation.
4. Offers from the Supplier must be made free of charge for us. We can accept an offer from the Supplier within two (2) weeks after it has been submitted. The Supplier is bound by its offer until the end of this period. Our silence does not justify any reliance on the conclusion of a contract. If our acceptance of an offer from the Supplier is delayed, the Supplier shall inform us of this immediately.
5. The drawings and other documents referred to in an order are part of the order. They become part of the contract unless the Supplier expressly objects to them in the order confirmation that corresponds to the order.
6. If an order is a call-off under a quantity contract or framework agreement agreed between us and the Supplier, this becomes binding for the Supplier if it does not object within two (2) working days of receipt; we are not obligated to issue call-offs under a quantity contractor a framework agreement. In all other respects, the provisions for orders in these Conditions shall apply accordingly to call-offs.
7. Insofar as we refer to a specific intended use of the Deliveries in an order, we expect that the Deliveries are suitable for this without restrictions, and the Supplier is obliged to inform us in writing before the contract is concluded, if this is not the case, stating the specific restrictions. The Supplier must also draw attention in writing to any safety regulations relevant to handling the Deliveries and any health,safety or environmental risks associated with the Deliveries before the contract is concluded.
Deliveries
1. Deliveries must comply in all respects with the contractually agreed quality, the relevant product, labour, safety and environmental protection laws and regulations and requirements of authorities and best trade practices as well as the latest state of the art, they must be of high quality in terms of type and grade and be suitable for the intended and customary use. In particular, the agreements made regarding chemical, physical and technical properties, dimensions, type of execution and quality, if agreed in the respective tolerances,must also be observed. Further subjective and objective requirements for the Deliveries remain unaffected.
2. The Deliveries to be made are made in accordance with DDP (INCOTERMS 2020) to the destination specified in the order, unless expressly agreed otherwise. The Supplier shall enclose the documentation, test or works certificates and other documents owed under the contract with the Deliveries free of charge. It is also obliged to pack the Deliveries securely and to insure them for transport.
3. The Supplier shall ensure that the goods delivered by it meet all the relevant requirements for placing them on the market in the People’s Republic of China and other markets in Asia. Upon request, it must provide us with evidence of conformity by submitting suitable documents and risk analyses.
4. The Supplier number, our respective order number, the article number, the batch number, the date of the order and, if available, our item number and the destination must be stated on all delivery notes, shipping documents and invoices; the Supplier shall bear the costs caused by the missing information, unless it is not responsible for the missing information.
5. Deliveries become our property upon handover, unless otherwise agreed. Any retention of title in favour of the Supplier has the effect of a simple retention of title. We reject an extended or expanded retention of title by the Supplier. Ownership of the Deliveries is transferred from the Supplier to us at the latest upon payment of the price. We are entitled to mix, process or combine Deliveries made under retention of title in the ordinary course of business with effect for us and also to resell them.
6. Unless otherwise agreed, the Supplier is not entitled to make partial Deliveries or partial services. If partial Deliveries or partial services have been agreed, the note “partial delivery or partial service” must be indicated on the delivery note and on the invoice.
7. The Supplier is only entitled to set-off and retention rights if claims against us are undisputed or have been legally established or if the counterclaim is in a synallagmatic relationship to our claim.
Delivery dates, delay in delivery
1. The delivery times specified in an order are binding and essential (hereinafter referred to as: “Delivery Dates”). If the order does not contain a different Delivery Date, the Delivery Date is two (2) weeks from the date of our order. After conclusion of the contract, Delivery Dates can only be extended by the Supplier if we expressly agree to an extension.
2. In order for the Supplier to comply with the Delivery Dates, it is decisive that the Deliveries are handed over to us on the agreed delivery date. If the Deliveries require acceptance, the respective Delivery Date is met if the Supplier makes the Deliveries available to us ready for acceptance on the Delivery Date. The Supplier is not entitled to early delivery.
3. As soon as the Supplier becomes aware that it cannot execute an order in full or in part on time, it must notify us immediately in writing,stating the reasons and the expected duration of the delay. The obligation of the Supplier to comply with the agreed Delivery Dates remains unaffected by this, as do our claims due to the delay.
4. In the event of a delay in delivery on the part of the Supplier, we shall be entitled to claim a contractual penalty of 0.5% of the net price agreed with the supplier in accordance with the respective contract for each commenced week of the delay, but not more than a total of 5% of this net price, unless the Supplier is not responsible for the delay in delivery. We expressly reserve the right to assert any further damages. Contractual penalties that have already been paid are to be taken into account in this respect. We may also claim the contractual penalty if a reservation is omitted upon acceptance of the delivery, but beyond the final payment of the delivery only if we reserve the right to do so upon final payment. Otherwise, we reserve the rights and claims applicable under the law in the event of a delay in delivery.
Prices and terms of payment
1. The prices agreed between us and the Supplier are binding. The agreed prices are based on DDP (INCOTERMS 2020) plus the sales or similar tax applicable at the time of delivery, if applicable, and including packaging, insurance, freight and storage costs, customs duties,taxes, assembly costs and all other ancillary costs, if not expressly agreed otherwise.
2. Unless otherwise agreed, our payments are due within 60 calendar days after receipt of the delivery or, if acceptance is required, after acceptance and receipt of a proper and verifiable invoice. If payment is made within fourteen (14) calendar days, we are entitled to deduct a 3% discount. If, as an exception, we accept partial Deliveries, this does not trigger the discount periods.
3. Invoices must meet the legal requirements and are to be sent to us in duplicate. They must show the order number, our order date and, if applicable, the order confirmation date, the Supplier number and, for each individual item, our article number, batch number and item number as well as the tax number of the Supplier. If hourly wage work carried out is invoiced as agreed, the certified activity records must be attached to the invoice. Duplicates are to be marked as such.
4. If the Supplier performs earlier than agreed and we nevertheless accept the delivery, the due date as well as the beginning of the discount period according to Section 5.2 shall not occur before the agreed delivery date.
5. The receipt of a corresponding transfer order by our bank shall be sufficient for the timeliness of the payment owed by us. Our payments do not justify acceptance of the delivery or acknowledgement of the billing or the delivery as being free of defects or on time.
6. A delay in payment by us requires, without prejudice to the other legal requirements, a reminder from the Supplier, which was issued after the due date.
7. We have unrestricted rights to set-off and retention within the framework of the statutory provisions.
Inspection obligation, exit control
1. The Supplier is obliged independently to check drawings, calculations, specifications and other details from us within the framework of its general and special expertise and specialist knowledge for any errors, contradictions or concerns about the suitability for use. It shall inform us immediately should it discover such errors or inconsistencies or should such concerns arise.
2. Before delivery, the Supplier shall carry out a careful outgoing goods inspection. Deliveries that do not pass this check may not be delivered.
Acceptance, transfer of risk
1. Deliveries only require acceptance if this has been expressly agreed between us and the Supplier or if this results from statutory regulations.
2. Unless otherwise agreed, we can declare acceptance up to two (2) weeks after the Supplier reports that the delivery is complete.Acceptance requires an express written declaration from us. Partial acceptances are generally excluded.
3. The risk of accidental loss and accidental deterioration of the Deliveries passes to us when they are handed over at the agreed place of delivery. If the Deliveries require acceptance, the risk of accidental loss and accidental deterioration of the delivery only passes to us upon acceptance.
Finishing
1. If the object of the delivery is the finishing of materials, the permissible strip waste may amount to a maximum of 2% of the material provided by us, the permissible punching grid waste to a maximum of 1%. We charge higher reject rates at our full costs.
2. Chips and accumulated scrap shall be invoiced on an order-related basis, whereby a separation shall be made according to alloys as well as according to precious metal-bearing and bare fractions. We reserve ownership of the chips and scrap from materials provided; Section 9 also applies in this respect.
Materials provided, tools
1. Products, materials, tools or other means of production provided by us to the Supplier for the fulfilment of its contractual obligations(hereinafter referred to as: “Materials Provided”) remain our property. The Supplier may only use the Materials Provided for our orders.
2. Materials Provided are to be stored, labelled and kept separately by the Supplier free of charge. From the time the Materials Provided are handed over to the Supplier, the latter bears the risk for the Materials Provided until they are returned to us. During this period, the Supplier must provide replacements in the event of damage or loss of the Materials Provided, unless we are responsible for this. The Supplier must carry out maintenance and repair work on tools or other means of production provided at its own expense. The Supplier must notify us immediately of any incidents.
3. The Supplier is obliged to insure the Materials Provided at its own expense against theft, breakage, fire and water damage and to provide us with proof of this upon request. The Supplier hereby authorises us to assert claims from such insurances in relation to our Materials Provided against the insurer.
4. The Supplier is entitled to treat and process, combine and mix the Materials Provided in accordance with our order, otherwise only withour prior written consent.
5. Treatment or processing, connection and mixing of the Materials Provided is carried out for use by the manufacturer, without any obligation on our part. The processed goods are deemed to be Materials Provided within the meaning of Section 9.1. If the items are treated or processed, combined or mixed with items that are not our property, we shall acquire joint ownership of the new items. The extent of this co-ownership results from the ratio of the value of the Materials Provided to the value of the other items. If our ownership expires as a result of connection or mixing, the Supplier transfers to us the ownership rights to which it is entitled to the new item to the extent of the value of the Materials Provided and stores them for us free of charge. The co-ownership rights are deemed to be materials provided in accordance with Section 9.1.
6. The Supplier must inform us immediately of any seizure of the Materials Provided or other interventions by third parties.
Complaint, warranty
1. The statutory inspection and notification obligations under the PRC Civil Code apply with the proviso that we only inspect the contractual Deliveries with regard to quantity, type, externally recognisable defects (e.g. transport damage) and other obvious defects after delivery. We can give notice of obvious defects up to five (5) working days after delivery, hidden defects up to ten (10) working days after their discovery. If acceptance has been agreed, we are not obligated to examine or give notice of defects prior to acceptance.We do not have any further obligations than the above obligations to examine and give notice of defects.
2. If the delivery of the Supplier is defective, we are entitled to the statutory warranty rights without restriction. In particular, we are entitled– without prejudice to our other rights due to the defects including demanding that the defect be rectified or that a new Delivery or production be made, at our sole discretion.
3. If the Supplier does not meet its obligation to provide supplementary performance within a reasonable period of time set by us, we can remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the Supplier. If the supplementary performance by the Supplier has failed or is unreasonable for us (e.g. due to particular urgency,endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline is required. We shall immediately inform the Supplier of circumstances that justify the unreasonableness, if possible before we remedy the defect.
4. Any release of layouts, drawings, specifications or samples declared by us does not mean a waiver of warranty rights. The responsibility of the Supplier for ensuring that its Deliveries are free of defects remains unaffected by our release.
5. The statutory limitation period applies for any claim in connection with material and legal defects.
Supplier recourse
1. Our rights and remedies under the law and other provision of this contract are cumulative. In particular, we are entitled to remedies for claims for defects. In particular, we are entitled to demand exactly the type of supplementary performance (repair or replacement delivery)from the Supplier that we owe our customer in the individual case; in the case of Deliveries with digital elements or other digital content,this also applies with regard to the provision of necessary updates.
2. Our claims from Supplier recourse also apply if the defective goods have been connected to another product or processed in any other way by us, our customer or a third party, e.g. by fitting, attaching or installing.
Property rights, rights of use and exploitation
1. The Supplier warrants that its Deliveries do not infringe any rights of third parties and that third parties cannot assert any rights, in particular rights in rem and intellectual property rights including in particular, patent rights, trademark rights, utility models, design rights, as well as copyrights (hereinafter referred to as “Property Rights”) in relation to the Deliveries.
2. If a third party asserts claims against us due to the infringement of intellectual property rights in relation to a Delivery from the Supplier,the Supplier – without prejudice to our other rights – must, at its option and at its own expense, either obtain a right of use, change its Delivery in such a way that the Property Right is not infringed or exchange its Delivery for a new one.
3. Further legal rights of ours due to legal defects in the Deliveries of the Supplier remain unaffected.
4. Insofar as the Deliveries or the documents and information related to the Deliveries contain Property Rights of the Supplier or third parties, the Supplier transfers to us irrevocably, unconditionally and for an indefinite period all Property Rights of the Supplier or third party that are required for the contractually stipulated and customary use of the Deliveries in a temporally and spatially unlimited, fully or partially transferable and sub-licensable manner.
5. Insofar as it is not possible for the Supplier to transfer the Property Rights due to mandatory legal regulations, the Supplier grants us all relevant rights of use and exploitation, including the right to publication, distribution, reproduction and processing, to the extent specified above, so that we can use, exploit and process the Deliveries in the contractually stipulated manner and in accordance with their usual use. If the Supplier makes Deliveries exclusively for us, it grants us the relevant rights of use, exploitation and processing in an exclusive manner. The rights of use and exploitation granted relate to all known and unknown types of use and exploitation at the time of delivery and entitle us in particular to transfer the Deliveries to third parties.
6. The transfer of rights or the granting of rights is settled with the respectively agreed payment.
7. We are the sole owner of all intellectual property rights to any work results that result from the use of the Deliveries (hereinafter referred to as: “Work Results”). In this respect, the Supplier undertakes to transfer to us any intellectual property rights to Work Results to which it is entitled without separate payment immediately after becoming aware of them. If a transfer of intellectual property rights to Work Results is not possible due to mandatory statutory provisions, the Supplier undertakes to transfer to us, without separate payment,all rights of use and exploitation in this regard in exclusive, content-related, spatially and temporally unrestricted, irrevocable,unconditional, in full or partially transferable and sub-licensable way.
Spare parts, quality assurance
1. The Supplier is obliged to keep spare parts (including wear parts) for Deliveries to us, insofar as machines, systems or components are concerned, for a period of at least fifteen (15) years after delivery. If the Supplier intends to discontinue the production of spare parts for the Deliveries, it shall notify us of this immediately after its decision to discontinue.
2. The Supplier must set up and maintain a quality assurance system that corresponds to the latest standards of the relevant supplier industry.The supplier shall independently carry out the quality assurance measures including the required documentation. The Supplier shall make this documentation available to us on request. The Supplier must keep the documentation in accordance with the legal requirements, but at least for a period of thirty(30) years.
3. We are entitled to check compliance with the quality assurance measures ourselves or through independent inspectors at the works of the Supplier during normal business hours and after timely – at least ten (10) working days – prior notice. The inspection does not release the Supplier from its liability for defects. The Supplier is entitled to take appropriate measures to protect its business and trade secrets. We have a legitimate interest in examining the inspection and test reports of the Supplier relating to a delivery to us. The Supplier is obliged to permit inspection for a period of ten (10) years after delivery.
Release, product liability
1. The Supplier releases us from any third-party claims that are asserted against us by the third party due to a defective delivery or an infringement of intellectual property rights in relation to a delivery by the Supplier for which the Supplier is responsible. Further legalrights of ours remain unaffected.
2. The Supplier also releases us within the framework of product and manufacturer liability from all claims asserted due to personal injury or property damage that can be attributed to a product defect in the delivery or a violation of the product monitoring obligation of the Supplier. If we are obliged to carry out a recall campaign or other field campaign against third parties for such a reason, the Supplier shall bear all associated costs.
3. The Supplier is obligated to maintain product liability insurance with an appropriate sum insured at its own expense. The Supplier shall send us a copy of the liability policy at any time upon request.
Liability
1. The Supplier is and remains liable to us for any claim in accordance with the statutory provisions and other provisions of this contract,unless otherwise agreed.
2. We are not and will not be liable to the Supplier for any claim, regardless of the legal basis (contract, tort, violation of obligations arising from the contractual relationship, indemnification, etc.).
3. The above exclusion of liability does not apply to liability under the Product Quality Law, in the case where the products cause damages to a third party because of our fault, and the Supplier makes the compensation to such third party instead, or under the Civil Code of the PRC, in cases of intent or gross negligence, personal injury, or in the event of a breach of material contractual obligations. Material contractual obligations are those obligations the fulfilment of which is essential for the proper execution of the contract and on the observance of which the supplier regularly relies and may rely.
4. However, our liability arising from the breach of material contractual obligations shall be limited to direct loss or damages and shall exclude any indirect, consequential, special, aggravated, punitive or supplementary loss or damages, unless we are liable due to intent or gross negligence or for personal injury under the Civil Code of the PRC.
5. Insofar as our liability is excluded or limited according to the above sections, this also applies to the corresponding personal liability of our agents, representatives or employees.
Documents, confidentiality
1. We reserve all property rights and intellectual property rights such as patent, trademark, design rights as well as copyrights to illustrations, forms, templates, samples, designs and design proposals, models, profiles, drawings, standard sheets, artwork, instructions,know-how, calculations, work documents and other documentation and information (hereinafter referred to as: “Documents”) providedby us. This includes in particular information about manufacturing processes, recipes and system configurations. Documents may only be used by the Supplier without our prior written consent for the contractually intended purpose. The same applies to the items manufactured according to the Documents.
2. The Supplier is obliged to keep all documents and information, in particular know-how and trade secrets, that it obtains from us(hereinafter referred to as “Confidential Information”) confidentially with regard to third parties. In particular, the Supplier is not authorised to disclose or make accessible the Confidential Information to third parties without our prior consent. The Confidential Information is only to be used for the purposes of the contract. The Supplier shall ensure its employees and other persons who are granted access to the Confidential Information in connection with the execution of the contract to maintain secrecy accordingly.
3. From the obligation in Section 16.2 information is excluded if it (a) was demonstrably already known to the Supplier at the time the contract was concluded or became known afterwards from a third party without infringing any confidentiality agreement, law or regulation (b) was already generally known at the time of the conclusion of the contract or became generally known later, insofar as this is not due to a breach of this contract, (c) was independently developed by the Supplier without access to our Confidential Information, or(d) had to be disclosed due to legal obligations or by order of a court or authority.
4. The obligations of this Section 16 remain in existence even after the end of the contract and the business relationship, regardless of how the contract or the business relationship is terminated.
Export control
1. We are entitled to refuse to fulfil our contractual obligations if and to the extent that applicable national or international foreign trade law –in particular export control law or customs law regulations, embargo regulations and sanctions lists including but not limited to Export Control Law of the PRC, Customs Law of the PRC (hereinafter referred to as: “Applicable Foreign Trade Law”) conflict with this.
2. The Supplier must comply with all requirements of the Applicable Foreign Trade Law for the provision of services. The Supplier is obliged, without being asked to do so, to provide us with all information and data in writing immediately after the order has been placed and in the event of changes, which we need to comply with Applicable Foreign Trade Law for export, import and re-export.
3. The Supplier is obliged to inform us immediately in writing of all circumstances that become known to it after the conclusion of the contract and which justify the assumption of a possible or actual violation by it of the Applicable Foreign Trade Law. In each case in which circumstances become known which justify the assumption of a possible or actual violation of Applicable Foreign Trade Law, a delay of acceptance by us is excluded for a reasonable period of time in order to give us the opportunity to check.
4. If actual violations of Applicable Foreign Trade Law are determined or cannot be ruled out, we can, at our discretion, withdraw from the contract as a whole or for those partial Deliveries that justify the assumption of a violation.
5. If the fulfilment of our contractual obligations is delayed due to the Applicable Foreign Trade Law, the performance time shall be extended accordingly. If the fulfilment of our contractual obligations or the contractual obligations of the Supplier is prohibited or impeded due to the Applicable Foreign Trade Law for a period of at least twelve (12) months after the order, we are entitled to withdraw from the contract. If only partial Deliveries are affected, we are entitled, at our discretion, to withdraw from the contract as a whole or for those partial Deliveries that are prohibited or impeded. Such a right does not exist if we are solely or primarily responsible for the circumstances that lead to the prohibition or hindrance.
6. The Supplier shall fully indemnify us and keep us harmless from any liability arising from the violation of the obligations according to this Section 17, for which the Supplier is responsible for. The indemnity shall include but is not limited to any costs and expenses, legal fees that we incur or have incurred and any official fines and penalties.
Compliance
1. The Supplier is obliged to act in accordance with the legal provisions applicable to it, in particular, but are not limited to laws and regulations on data protection, competition, anti-corruption and anti-money laundering.
2. The Supplier must comply with the requirements of the Prym Code of Conduct for Suppliers at all times. The Code is available at:
  https://link.prym.com/codeofconduct-en
Subcontractor, assignment prohibition
1. The Supplier is not entitled to have the Deliveries carried out by subcontractors without our prior written consent. External transport persons are not considered subcontractors.
2. The Supplier is not entitled to assign claims from the contract with us to third parties without our prior written consent.
Applicable law, place of jurisdiction
1. These Conditions and the contractual relationship between us and the Supplier are subject to the law of the People’s Republic of China (the “PRC”, for the sole purpose of these Conditions, excluding Hong Kong, Macau and Taiwai) to the exclusion of the United Nations Convention on the International Sale of Goods (UN Sales Convention/CISG).
2. Any dispute, controversy, difference or claim arising out of or relating to these Conditions, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to China International Economic and Trade Arbitration Commission (“CIETAC”) South Sub-Commission in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The language of arbitration shall be English. The arbitral award shall be final and binding upon the Parties. The seat of arbitration shall be Shenzhen. The law of this arbitration clause shall be PRC law.
Miscellaneous
1. The place of performance for all Deliveries is the place of delivery specified in the order. If no place of delivery is specified, the place of performance is our place of business. The place of performance for subsequent performance is the location of the respective Deliveries.
2. In writing or “written” means hand-written, type-written, printed or electronically made, and resulting in a permanent record.
3. In the event of the invalidity or unenforceability of individual provisions of the contract, the remaining provisions remain valid and enforceable.