1.1 All contracts as well as all deliveries and services of Neenah Gessner GmbH ("Neenah Gessner", "we", "us" or "our") shall be based exclusively on these Terms and Conditions of Delivery and Payment. We hereby object to deviating terms and conditions; they shall not apply even if we have not objected to them in individual cases.
1.2 These Terms and Conditions of Delivery and Payment shall only apply to companies, legal entities under public law and special funds under public law.
2. Offers, conclusion of contract
2.1 Our offers are subject to change without notice, samples are non-binding. Our offers are to be understood from the place designated by us where the goods are made available.
2.2 Our written order confirmation is decisive for the scope and price of our deliveries and services.
2.3 Agreements, regardless of whether they concern main main performance, ancillary services or general / framework conditions, shall only be binding on us after our written confirmation. This also applies to assurances, guarantees, assumption of procurement risks or other ancillary agreements. We must expressly designate guarantees and assurances of properties as such.
3. Prices, Price changes
3.1 Customer payments shall be made in EURO. If we accept payment in a different currency, the exchange rate applicable at the time of preparation of the offer shall apply.
3.2 Unless otherwise agreed in writing, our prices are exclusive of packaging and transport. Value added tax shall be added at the respective statutory rate; it shall only be included in prices if shown separately.
3.3 Our payment claims are due within 30 days net of the invoice date. We only accept discount deductions if agreed in writing.
3.4 We may unilaterally increase prices appropriately (§ 315 BGB) in the event of an increase in material procurement or production costs, taxes, wage and ancillary wage costs as well as energy costs and costs due to environmental regulations, if there are more than two months between the conclusion of the contract and the delivery.
3.5 If we accept payments by bill of exchange or cheque in writing, acceptance is made and credited only on account of performance. Costs for bills of exchange and cheques, including protest costs, shall be borne by the customer.
3.6 In the event that subsequent determinations cast doubt on the creditworthiness of the customer, for which the confidential information of a German bank or credit agency is sufficient, we shall be entitled to demand advance payment or to demand the provision of security, with the discontinuation of the payment term, as well as to withdraw from the contract after setting a reasonable deadline or to demand damages for non-performance, without prejudice to the right to repossess the delivery items delivered under retention of title at the expense of the customer.
4. Delivery, Transfer of Risk
4.1 Unless otherwise expressly agreed in writing, dates announced by us for the provision of the goods or delivery periods shall merely indicate the expected delivery date. Binding provision and delivery periods begin at the earliest with the receipt of our order confirmation by the customer, but not before all details of the execution of the order have been clarified and all other conditions to be fulfilled by the customer for the execution of the contract or the delivery have been fulfilled as well as all necessary information has been obtained.
4.2 Goods shall be made available at the place of delivery. Unless otherwise agreed, the place of delivery shall be "ex works Neenah Gessner". With provision and notification of readiness for collection, the risk of accidental loss and deterioration of the goods as well as the transport risk shall pass to the customer. If the goods are not collected on time after they have been made available, we shall be entitled to store them (also at third parties) at the customer's expense.
4.3 If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the resulting damage, including any additional expenses.
Delay in Delivery, Force Majeure, Reservation of Self-supply
5.1 The customer may only withdraw from the contract in the case of bindingly fixed delivery/performance periods if the delivery and performance periods have been exceeded and we have not provided/delivered the goods despite setting of a reasonable grace period. To the exclusion of any further claims, the customer shall only be entitled to assert a verifiable direct damage caused by delay and only if we are liable for the delay due to gross negligence or intent.
5.2 Delivery periods shall be reasonably extended in the event of industrial disputes, in particular strikes and lock-outs, as well as in the event of force majeure or unforeseen hindrances beyond our control, insofar as such hindrances have a considerable influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur with subcontractors. We shall not be liable for these circumstances even if they arise during an existing delay. We shall notify the beginning and end of the hindrances within a reasonable period of time. Termination, cancellation or withdrawal rights of the customer due to disruption of the business basis or impossibility of performance for which we are not responsible shall remain unaffected.
5.3 If, for reasons for which we are not liable, we do not receive, do not receive correctly or do not timely receive for the performance of our contractual delivery, deliveries or services owed by our suppliers despite proper and sufficient coverage, or if events occur in accordance with the above Section 5.2, we shall inform the customer in good time. In this case we shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled, provided that we have fulfilled our above obligation to provide information and have not assumed the procurement risk.
6. Condition of the Goods, Weight Deviations
6.1 Decisive for the requirements of the goods are only explicitly agreed specifications of the goods.
6.2 Weight tolerances of up to 15% (up and down) due to production conditions shall be deemed agreed. Such deviations do not constitute a quality defect.
7 Warranty, Liability for Defects, Obligations to Inspect and Give Notice of Defects
7.1 The statutory inspection and complaint obligations shall apply. Complaints must be made in writing.
7.2 We provide a warranty for defects in the goods in such a way that we carry out subsequent performance. Subsequent performance shall, at our discretion, be effected by elimination of the defect or by delivery of a defect-free item.
7.3 We shall bear the expenses necessary for the purpose of subsequent performance, unless they are disproportionate. Disproportionality exists in particular if
(i) there is no reasonable relationship between the expenses and the delivery price of the defective item or
(ii) the expenses are increased by the fact that the object of sale has been taken to a place other than the place of performance.
7.4 The customer shall give us reasonable time and opportunity to carry out such subsequent performance as we deem necessary at our reasonable discretion.
7.5 If the supplementary performance fails, the customer shall be entitled to withdraw from the contract or reduce the purchase price. Otherwise, our liability, in particular any liability for damages - irrespective of the legal basis - is excluded, unless the damage is based on our intent or gross negligence or that of our executive employees; in the latter case, the claim for damages shall be limited to the damage reasonably foreseeable and typical for the contract at the time of conclusion of the contract.
7.6 Under no circumstances shall we be liable, nor shall we provide any warranty, for damage resulting from natural wear and tear, negligent or faulty operation or excessive strain due to chemical, mechanical or electrical influences or other harmful conditions not previously notified to us in writing. Our liability and warranty shall also expire as soon as the customer carries out repairs, work or modifications of any kind on goods himself or has them carried out without our written consent, the proper further processing shall remain unaffected by this. Our liability and warranty shall also be excluded if the operating conditions under which the goods are used or further processed have not been accurately described to us in writing.
7.7 The use of the delivery items is in the sole responsibility of the customer, who must check the suitability of the goods for use before any intended intended use. We do not assume any warranty, liability or responsibility for unspecified applications or for the suitability, function or processability of the goods for use other than in accordance with the acknowledged rules of technology.
7.8 The customer's claims for subsequent performance as well as any claims for damages or reimbursement of expenses due to defects which the customer may have shall become statute-barred one year after delivery of the goods. If the acceptance of the delivery item or the acceptance of the delivery and services is delayed through no fault of the supplier, the liability and warranty (including the obligation to subsequent performance) shall expire one year after the making available of the goods.
8. Exclusion and Limitation of Liability
8.1 Otherwise, we shall only be liable to the customer - irrespective of the legal basis - in the event of wilful breach of duty, grossly negligent breach of duty on the part of our executive bodies and executive employees, culpable injury to life, limb and health, fraudulent concealment of defects or the absence of which we have guaranteed. In the event of culpable breach of essential contractual obligations, we shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, in the latter case limited to reasonably foreseeable damage typical of the contract. An essential contractual obligation exists if the breach of duty relates to an obligation on the fulfilment of which the customer has relied and may have relied on.
8.2 The above exclusions of liability do not apply to claims of the customer arising from product liability or other liability provisions which cannot be waived under individual contracts.
8.3 Unless otherwise provided for in Section 7.8, claims of the customer shall become statute-barred after one year; the statutory provisions shall apply for the commencement and maximum period of limitation.
9. Set-off and Retention
The customer shall only have the right to offset counterclaims if they are undisputed, have been acknowledged by us or have become final and absolute. The same applies to the assertion of rights of retention.
10. Retention of Title
10.1 We reserve title to the goods until complete receipt of all payments arising from all claims of the business relationship, including ancillary claims, claims for damages and payment of cheques and bills of exchange.
10.2 We are entitled to insure goods at the customer's expense against theft, breakage, fire, water and other damage, unless the customer has demonstrably taken out the insurance himself.
10.3 If goods become part of a new item which belongs to the customer as a result of combination, the customer transfers co-ownership of the new item to us and keeps it in safe custody for us free of charge. Our share of ownership is determined by the ratio of the value of the reserved goods to the value of the item.
10.4 The customer hereby assigns to us all claims against buyers arising from the resale of the reserved goods. If goods are resold together with other goods not belonging to us, the customer assigns to us that part of the claim arising from the resale which corresponds to the invoice amount of the goods.
10.5 The customer remains revocably authorised to collect claims from the resale. At our request, he shall notify customers of the assignment and provide us with information and documents which we require to assert our rights.
10.6 If goods are seized or if our rights are otherwise impaired by third parties, the customer must notify us immediately. The customer may neither pledge goods nor assign them by way of security. In the event of seizure, confiscation or other dispositions by third parties, the customer must notify us immediately.
10.7 We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured by more than 10%.
10.8 In the event of breach of contract by the customer, in particular default in payment, we shall be entitled to take back the goods after issuing a reminder and the customer shall be obliged to surrender the goods. The assertion of the retention of title as well as the attachment of the delivery item by us shall not be deemed a withdrawal from the contract.
10.9 Insofar as retention of title does not remain effective for our deliveries abroad, but other security rights exist which are economically comparable to the retention of title agreed in this Section 10, we shall be entitled to such other security rights. The customer shall make the necessary declarations to this effect at our request.
11. Confidentiality, Intellectual Property Rights
11.1 The customer shall keep confidential all confidential information received from us, in particular drawings, data, performance data. This shall also apply after termination of a contract. This obligation shall not apply to information which the customer was already entitled to know at the time of receipt without any obligation to maintain secrecy or which subsequently becomes entitled to know without any obligation to maintain secrecy or which - without any breach of contract by the customer - is or becomes generally known.
11.2 We retain all ownership and property rights as well as copyrights and any other intellectual property rights to all samples, cost estimates, drawings and similar information of a tangible and intangible nature in whatever form and to documents and means of production produced or procured by us, in particular tools and software documentation.
11.3 If we are required to manufacture or use parts provided by the customer according to drawings, models, samples or other specifications of the customer, the customer shall be responsible for ensuring that we do not infringe any industrial property rights of third parties. To this extent, the customer shall indemnify us against any claims by third parties and shall reimburse us for any resulting damage.
12. Choice of Law / Place of Performance / Place of Venue / Ancillary Provisions
12.1 The law of the Federal Republic of Germany shall apply to the exclusion of conflict of laws provisions. The uniform UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
12.2 The exclusive place of jurisdiction for all disputes shall be our place of business. Notwithstanding the foregoing, we may also institute legal proceedings against the customer at his general place of jurisdiction.
12.3 Place of performance for all our deliveries and services and for the customer's payment and information obligations shall be our place of business.
12.4 Should one or more provisions of these Terms and Conditions of Delivery and Payment be or become void or ineffective, this shall not affect the effectiveness of the remaining provisions. Void, invalid or ineffective provisions shall be supplemented or replaced by provisions which come as close as possible to the economic intention in a legally effective manner. The same applies to the filling of contractual gaps.
12.5 Amendments and supplements to these Terms and Conditions of Delivery and Payment and to the contracts subject to these Terms and Conditions of Delivery and Payment must be made in writing. This shall also apply to amendments to this written form clause.
12.6 We point out that we store and process personal data in connection with business transactions in compliance with the statutory provisions. See www.neenah-gessner.de/de/datenschutzerklaerung.html
In case of discrepencies between the German and English version of our Terms and Conditions of Delivery and Payment, the German version shall be decisive and shall prevail.