Terms & Conditions

LIGANOVA.COM

General Terms and Conditions of Business of LIGANOVA GmbH (the Client)

Preamble

These Terms & Conditions of Business apply for all business relationships of LIGANOVA GmbH (hereinafter called “LIGANOVA”) with third parties who are acting on behalf of LIGANOVA. If a special supply contract exists between the contractual parties, the following Terms and Conditions of Business apply in a subsidiary manner.

§ 1. Scope, Applicable Law

1. These terms and conditions apply exclusively to relations with clients who are entrepreneurs in terms of § 14 BGB (German Civil Code), even if no further reference is made to them in individual transactions, contracts or purchase orders and unless otherwise expressly agreed in writing.

2. These terms and conditions shall apply to all offers, services and deliveries of LIGANOVA, even if the client refers to his own or other or supplementary terms and conditions of third parties in his order or order confirmation. Even if LIGANOVA refers to a document that contains or refers to the general terms and conditions of the client or a third party, this shall never be reckoned as an agreement to the inclusion or validity of the client´s or third party´s general terms and conditions. Inclusion and interpretation of these terms and conditions of LIGANOVA as well as conclusion and execution of legal transactions with the client shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and the rules of conflicts of law.

§ 2. Conclusion of Contracts and Orders, Description of Services

1. All offers by LIGANOVA are subject to change and non-binding, unless they are expressly marked as binding or contain a deadline for acceptance. LIGANOVA may accept orders of the client within two weeks after receipt. A contract shall only be concluded upon confirmation of the order by LIGANOVA or upon tacit execution of the order.

2. The scope of the contractually owed performance and services shall be exclusively determined by LIGANOVA’s order confirmation. All oral side agreements and amendments of the order shall require LIGANOVA’s written confirmation to become effective. The written form shall also be observed by fax and/or e-mail. In particular, agreements on deadlines and dates shall only be binding if they have been confirmed in writing.

3. Information provided by LIGANOVA for the implementation of an order (e.g. design, dimensions, weights, shape, color, technical data etc.) as well as visual representations, sketches, drafts, plans etc. of any kind shall only be approximate unless the usability of the service for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics but descriptions of LIGANOVA’s services. Deviations that are customary in the industry and trade, as well as deviations that are based on legal, technical or spatial requirements or circumstances or represent technical improvements, as well as the replacement of components by equivalent parts shall be permissible, provided they do not materially impair the usability of the performance for the contractually intended pur-pose.

4. LIGANOVA reserves title and all commercial and intellectual property rights to all parts of an offer, in particular to all drawings, designs, illustrations, calculations, models, ideas, concepts and drafts and other documents and aids made available to the client. The client is obliged not to disclose these items as such or their contents to third parties, make them known, use or reproduce them himself or through third parties without LIGANOVA’s express and prior permission. Upon LIGANOVA’s request the client shall return these items in full and destroy all copies made if negotiations do not lead to the conclusion of a contract or an order.

§ 3. Duties of the Client

1. The client shall provide LIGANOVA with all necessary data and information in a timely manner and within the agreed time limit and shall provide LIGANOVA with all data and in-formation required to perform all tasks and services to be performed by LIGANOVA. This shall apply in particular to the general briefing, the maximum budget, the timely and complete execution of correction/feedback rounds, notification of delivery times and places of delivery etc. The client assures that he is entitled to use all documents, data, designs, texts, brands etc. provided by him. The client shall be responsible for any errors in the data or information provided. If the client does not state a maximum budget, it shall compensate LIGANOVA for disadvantages caused by this.

2. The client shall indemnify LIGANOVA from all claims that third parties may assert against LIGANOVA due to conduct or actions for which the client is responsible under this contract.

3. The client is obliged to inform LIGANOVA without delay and in writing about all factors which arise during the course of a project which can lead to a change in the project budget, the calculation underlying the budget or the finance plan relating to the budget.

§ 4. Cancellation Fees

If the client cancels or terminates an order before it has been fully executed, all services rendered by LIGANOVA up to the cancellation or termination shall be paid for in full. For services not yet rendered at the time of cancellation or termination, LIGANOVA may charge a lump sum of 25% of the net offer price for the services not yet rendered, without prejudice to the possibility to claim higher actual damages. If the client proves that the actual dam-age suffered by LIGANOVA is less than the lump sum of 25%, only the actual damage shall be reimbursed.

§ 5. Prices, VAT, Subsequent Changes of Orders

1. LIGANOVA’s remuneration shall be based on the type and scope of services as described and calculated in the order confirmation. Additional and special services exceeding the agreed services shall be remunerated additionally. Travel and incidental expenses (e.g. telecommunication costs etc.) shall be invoiced separately and will be documented upon request.

2. All prices are net prices in Euro plus VAT at the respective valid percentage. If more than four months elapse between order placement and the execution of the order and if purchase prices or LIGANOVA’s daily rates have changed during this time, the prices valid at the time of the performance of the order shall apply. The same applies regardless of a time condition if raw material prices increase by more than 1% during the execution of an order. In this case LIGANOVA may adjust its own remuneration. The client shall not be entitled to adjust the remuneration.

3. If the client causes additional costs to LIGANOVA due to subsequent changes or additions to the order (e.g. for material, design, size, quantity, production, shipping, logistics etc.), such additional costs shall be invoiced to the client as a special service in addition to the offered price.

§ 6. Terms of Payment

1. After placing an order, LIGANOVA may request an appropriate advance payment from the order total. The advance payment shall not exceed 70 %.

2. For self-contained parts of the order, LIGANOVA shall be entitled to issue interim invoices for rendered partial services.

3. Upon execution of the order, LIGANOVA shall issue a final invoice showing all goods delivered and services rendered as well as the payments already made by the client. The invoice shall be payable within 14 calendar days after receipt of the invoice by the client without deduction and without presentation of receipts and documentation, unless otherwise agreed. The date of receipt by LIGANOVA shall be decisive for the date of payment. If the client fails to pay within the 14-day payment period, the client shall be in debtor´s delay without reminder and interest shall be charged on the outstanding amount at 9 percentage points above basis interest rate from the 15th day on. LIGANOVA reserves the right to assert further damages caused by debtor´s default.

4. The client may only offset claims against LIGANOVA and assert a right of retention due to other claims if such claims or demands are undisputed, legally binding or acknowledged by LIGANOVA.

5. LIGANOVA shall be entitled to perform still outstanding services only against prepayment or provision of security if, after conclusion of the contract or placement of an order, circumstances become known which are likely to substantially reduce the credit standing of the client and as a result of which the payment of LIGANOVA’s still outstanding claims by the client under the respective contractual relationship, including claims from previous orders, is jeopardized.

§ 7. Performance Deadlines

1. Performance deadlines and dates shall only be binding if all documents, information and statements of the client, in particular corrections and release declarations, are received by LIGANOVA in due time, completely and fully legible. LIGANOVA shall not be liable for delays in performance or delivery if they are caused by late, incomplete or non-legible documents, information or statements of the client, due to subsequent change requests of the client or due to extensions of the originally agreed scope of the order.

2. If performance deadlines are exceeded although LIGANOVA is not responsible for the delay (e.g. power failures as well as all cases of force majeure) the client shall not be entitled to withdraw from the contract or to hold LIGANOVA responsible for the damage incurred.

3. If an agreed performance date is exceeded without a case of force majeure or a case of lack of fault, the client shall be entitled to set LIGANOVA a reasonable grace period. If the service is not performed by the end of this grace period, the client shall have the right to withdraw from the order. The withdrawal must be declared in writing at the latest one week after the expiration of the grace period.

4. LIGANOVA may – without prejudice to the rights due to debtor´s default of the client – demand from the client an extension of delivery and service deadlines or a postponement of delivery and service dates at least by the period of time during which the client has not met his contractual obligations towards LIGANOVA.

§ 8. Retention of Title

1. The following agreed retention of title serves as security for all existing claims of LIGANOVA against the client, both for current and future claims, arising from a respective order for delivery of goods or provision of services.

2. All goods delivered by LIGANOVA to the client shall remain the property of LIGANOVA until all secured claims have been paid in full. The goods covered by the retention of title are hereinafter referred to as “reserved goods”.

3. The client shall store the reserved goods free of charge for LIGANOVA. The client shall be entitled to use, process and sell the reserved goods in the ordinary course of business un-less LIGANOVA has withdrawn from the contract due to a client’s breach of contract. In the latter case LIGANOVA may demand the return of the reserved goods from the client. Pledging and transfer of ownership by way of security shall always be inadmissible.

4. If third parties seize the reserved goods, in particular by attachment, the client shall immediately inform the third parties of LIGANOVA’s ownership and inform LIGANOVA immediately about the enforcement measures.

5. LIGANOVA shall release the reserved goods subject if their value exceeds the amount of the secured claims by more than 50%. The choice of the items to be released shall be at the discretion of the client.

§ 9. Place of Performance, Packaging, Dispatch, Passing of the Risk, Acceptance

1. Unless otherwise specified in the individual order, place of performance for all obligations of LIGANOVA arising from an order shall be LIGANOVA’s registered office in Stuttgart, Germany. If LIGANOVA is also responsible for assembly and installation, place of performance shall be the place where assembly and installation is to take place.

2. Unless otherwise agreed, LIGANOVA alone shall decide on packaging and shipping. If special requests of the client for packaging and shipping cause additional expenses for LIGANOVA, such additional expenses may additionally be charged to the client.

3. The risk of accidental loss or accidental destruction is passed on to the client at the latest when the goods to be delivered are handed over to the forwarding agent, the carrier or other third parties designated to carry out the shipment. This shall also apply if partial de-liveries are made or if LIGANOVA has to provide additional services (e.g. installation).

4. If storage costs are incurred after the transfer of risk in accordance with clause 3 of this provision, they shall be borne by the client. Should LIGANOVA provide storage, storage costs shall be charged at 2% of the invoice amount of the stored goods per completed week of storage. LIGANOVA reserves the right to claim further storage costs above this lump sum.

5. To the extent that acceptance of the goods delivered or services rendered by LIGANOVA is required despite § 650 BGB (German Civil Code), delivered goods and services rendered shall be deemed accepted at the latest when the client uses the goods and/or services without expressly, in writing and specifically notifying LIGANOVA of any defects. If the client merely reserves the right to inspect the goods and services for defects, this reservation shall not prevent acceptance of the goods and services according to sentence 1. The client and LIGANOVA agree that for all goods delivered and/or services rendered the client shall be deemed to be requested to declare acceptance within three calendar days in accordance with § 640 subs. 2 BGB (German Civil Code).

§ 10. No Obligation to Store

Upon completion of the order LIGANOVA shall be free to store or destroy at its discretion all ideas, templates, drafts, working materials, goods, products, installations, software and all and any other documents created by LIGANOVA or provided by the client. LIGANOVA shall have no obligation towards the client to archive, store or reposit the aforementioned ideas, items, documents or information.

§ 11. Intellectual Property Rights

1. All services provided by LIGANOVA are protected as personal intellectual creations by the German Copyright and Related Rights Act (Urheberrechtsgesetz – UrhG). The provisions of the German Copyright and Related Rights Act shall be deemed agreed even if the level of originality required by § 2 UrhG may not be achieved in particular cases.

2. Except for the right of reproduction, all known types of use listed in § 15 UrhG for the services provided by LIGANOVA shall be transferred to the client as a simple right of use, unless otherwise agreed. The purpose of an order shall only be the purpose specified when placing the order at the time LIGANOVA is commissioned. Always excluded from this transfer obligation are LIGANOVA’s rights to its own planning procedures, software, media purchasing methods, methods of information procurement and/or distribution and similar which represent LIGANOVA’s company-specific know-how.

3. The client may only use LIGANOVA’s (creative) services for those purposes for which the services were specifically ordered. The transfer of granted rights of use to third parties re-quires the prior written consent of LIGANOVA. LIGANOVA shall be entitled to information about the scope of use by the client.

4. Without LIGANOVA’s consent, the drafts, ideas, designs, installations, software as well as other creative services and works etc., including the designation of LIGANOVA as the originator and copyright holder, may not be changed. Any imitation – even of parts of the work and workpieces – is prohibited.

5. The above-mentioned transfer of rights shall be settled with the other payments to LIGANOVA according to § 6 of these terms and conditions. However, the client shall not ac-quire the right to use the services within the agreed scope until full payment of the remuneration pursuant to § 6 of these terms and conditions.

6. LIGANOVA shall be entitled to use the drafts, ideas, designs, installations, software and other creative services and works etc. created by LIGANOVA for its own advertising purposes. Likewise, LIGANOVA shall be entitled to produce at its own expense any number of copies of communication media, designs, etc. created for the client and to use them for its own advertising purposes. Finally, LIGANOVA shall be entitled to mention the activity for a client within the scope of its own advertising measures or campaigns and to publish it in the press, social-media and online.

§ 12. Warranty

1. The warranty period shall be one year from delivery or acceptance of the goods and/or services of LIGANVOA. If the contractually agreed period of use by the client or the advertising campaign is shorter than one year, the warranty period for defects of the goods and/or services shall end on the day on which their intended use ends or the advertising campaign has expired. These periods shall not apply to claims for damages by the client resulting from injury to life, body or health or from intentional or grossly negligent breach of duty by LIGANOVA or its vicarious agents, which shall be time-barred in accordance with the statutory provisions.

2. The client must carefully examine all deliveries and services immediately after delivery. With regard to recognizable defects or other defects that would have been detected in an immediate, careful inspection, they shall be deemed approved by the client if the client does not notify LIGANOVA of the defects in writing within seven calendar days after delivery. If goods or services of LIGANOVA are delivered or performed directly to POS, event locations or other places specified by the client, the client’s employees on site shall be obliged to inspect the goods or services for defects. With regard to other defects, the goods and services provided by LIGANOVA shall be deemed approved if LIGANOVA does not receive the written notice of defects within seven calendar days after the date on which the defect be-comes apparent; if the defect was already apparent at an earlier date during normal use, this earlier date shall be decisive for the beginning of the seven day period.

3. In the event of material defects of the goods and services, LIGANOVA shall be obligated to repair or replace the goods or services at its own choice within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of rectification or replacement delivery, the client may withdraw from the order or reasonably reduce LIGANOVA’s remuneration.

4. If a defect is due to the fault of LIGANOVA, the client may claim damages in accordance with the provisions of § 13 of these terms and conditions.

§ 13. Compensation for Damages

1. LIGANOVA’s obligation to pay damages, regardless of the legal basis, in particular impossibility, delay, warranty, breach of contract, breach of duties during contract negotiations and tort, to the extent that fault is decisive in each case, shall be determined by the following provisions.

2. LIGANOVA shall submit the drafts, print templates, production templates, designs, etc. it has created to the client so that the client can verify the material information contained therein. If the client releases the templates, he shall assume sole liability for the correct-ness of the material information. Any changes or additions made by telephone shall require written confirmation by LIGANOVA.

3. LIGANOVA shall only be liable to the client for damages for whatever legal reason in case of intent or gross negligence. This exclusion of liability for simple negligence shall not apply to the violation of essential contractual obligations, unless liability for insignificant mate-rial defects is involved. In case of breach of material contractual obligations, liability shall be limited to typical and for LIGANOVA foreseeable damages. Sentence 1 shall not apply to liability for damages resulting from injury to life, body or health caused by an intentional or negligent breach of duty by LIGANOVA or an intentional or negligent breach of duty by a legal representative or vicarious agent of LIGANOVA.

4. LIGANOVA shall not be liable for the patent, design, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts, drafts, brands etc. supplied.

5. The client bears the risk of the legal admissibility of an advertising measure. This applies in particular in the event that measures violate provisions of competition law, copyright law, special advertising laws, the general personal rights of third parties, data protection rules or regulatory rules.

6. These limitations and exclusions of liability shall apply to the same extent for the benefit of the organs, legal representatives, employees and other vicarious agents of LIGANOVA.

7. Claims for damages arising from contractual liability shall become time-barred one year after performance of the service, except in cases of intent. This also applies to congruent, competing claims from non-contractual liability. Any liability for damages due to an explicit guarantee assumed by LIGANOVA shall remain unaffected by the above provisions.

§ 14. Confidentiality

1. The client shall be obligated to maintain secrecy towards third parties with regard to all details of which he becomes aware, e.g. the organization, production or distribution of LIGANOVA as well as the companies, suppliers, designers and artists associated or related to it. This obligation of secrecy shall apply beyond the duration of the business cooperation of the parties.

2. The client is responsible for ensuring that a corresponding confidentiality obligation is agreed with his employees and vicarious agents.

3. If the client or one of the persons mentioned in clause 2 violates the obligation of secrecy, he owes LIGANOVA a contractual penalty amounting to 50% of the net order volume, but at least € 25,000. The contractual penalty does not apply if he is not responsible for the violation of the obligation of secrecy.

§ 15. Data Protection

1. The client agrees that his personal data (e.g. name/company, profession, date of birth, occupation, address and contact data like telephone, fax, email, commercial register entry, bank account details, credit cards, legal and voluntary representatives, contact persons with contact data, social media accounts with access data and website with access data) are collected, stored and processed by LIGANOVA for the purpose of contract implementation as well as for its own business and advertising purposes. LIGANOVA undertakes to protect all data from access by unauthorized third parties and to pass on data to third parties only and only to the extent necessary for the execution of the contract. The Client may revoke this consent at any time in writing.

2. The client assures that all data collected, stored, processed and/or transmitted by him or on his behalf by third parties has been treated in accordance with the provisions of the statutory data protection regulations, that all necessary consents of the parties concerned have been obtained and that the use of this data by LIGANOVA from pitch to full implementation of an order does not violate any data protection regulations.

§ 16. Final Provisions

1. Subsidiary agreements, reservations, modifications or amendments within the scope of an order shall only be effective if confirmed in writing by LIGANOVA.

2. For disputes arising from contracts with clients, the courts at the domicile of LIGANOVA GmbH shall have sole international and local jurisdiction.

§ 17. Severability Clause

Should individual provisions of these general terms and conditions be or become invalid, this shall not affect the validity of the remaining clauses. The ineffective clause is to be re-placed by an effective clause which comes closest to the economic meaning of the ineffective clause.