Terms & Conditions

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

1. The Terms & Conditions of Business apply exclusively for relationships with counterparties who are entrepreneurs unless explicitly agreed otherwise in writing.

2. These Terms & Conditions of Business apply exclusively, even if the counterparty refers to divergent or supplementary terms and conditions in a confirmation. Provisions which amend or annul these Conditions only apply after written confirmation by LIGANOVA Netherlands B.V. Conflicting confirmations of order by the counterparty referring to the counterparty’s General Terms and Conditions of Business are hereby contradicted; this also applies to references to the counterparty’s own General Terms and Conditions of Business in printed forms.

3. LIGANOVA Netherlands B.V. reserves the right to amend these Conditions in a reasonable manner. The General Terms and Conditions of Business currently applicable may be seen at any time on the website of LIGANOVA Netherlands B.V.. The inclusion and interpretation of these Terms & Conditions of Business and the conclusion and execution of the transactions with the counterparty are governed exclusively by the law of the Netherlands.

4. These Terms & Conditions of Business supersede all prior Terms & Conditions of Business.

1. A contract is only concluded through a written confirmation of order from the counterparty unless the order from LIGANOVA is issued by reason of an offer from the Counterparty. In the event that the order confirmation diverges from the order, LIGANOVA reserves the right to withdraw the order in its entirety within three working days in so far as no agreement can be found on the divergent points within this time. The day on which the order confirmation, the content of which diverges from the order, is received by LIGANOVA does not count as one of the three working days.

2. In cases of doubt, the counterparty must prove the existence of an order and an order confirmation.

3. All collateral agreements and amendments to an order require the written confirmation of LIGANOVA to be valid. Communication by fax and/or email is also deemed to be written form.

1. It is the sole responsibility of the counterparty to instruct, direct and supervise staff acting for him and to issue appropriate instructions on a case by case basis.

2. In so far as is necessary by reason of the nature and extent of the work to be performed, the counterparty is solely responsible for arranging for the accommodation of his staff and the transportation of the materials required.

1. The counterparty undertakes to inform LIGANOVA immediately and continuously about all material matters relating to the order. This particularly includes, in so far as available, the forwarding of daily or weekly plans relating to the execution of the order. The counterparty must inform LIGANOVA promptly in writing about circumstances which impede or bring into question the timely execution of the order. Notwithstanding the foregoing, LIGANOVA reserves the right to monitor the work with respect to its execution in accordance with the contract.

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

3. Amendments to the budget and cost increases which were not brought to LIGANOVA’s attention or were not approved by LIGANOVA are for the counterparty’s account. In this respect the counterparty has no entitlement to an increase in remuneration.

If the counterparty withdraws without justification from an order that has been placed or cancels an order, LIGANOVA may demand payment of a lump sum of 10% of the order value for the costs arising from the processing of the cancellation and the delay associated with the search for another counterparty; such a demand is without prejudice to the possibility of asserting a claim for loss or damage which actually exceeds this lump sum figure. The counterparty is entitled to prove a lesser loss or damage.

Unless agreed otherwise between the parties, the following terms and conditions of payment apply:

1. The remuneration is not due for payment until LIGANOVA has formally approved the work and services. After conclusion of the work or services, the counterparty will issue a corresponding final invoice in which any progress payments already made are indicated.

2. Invoices will be paid by LIGANOVA within sixty days of receipt of invoice. Other terms of payment may be defined as part of a prompt payment discount agreement.

3. If there is disagreement about the freedom of the work or services from defects or whether the work and services were performed in accordance with the contract, LIGANOVA is entitled to the right to withhold payments against the final invoice amount until the contractual parties have reached an agreement. The amount retained will be at least three times the costs necessary for the rectification of the defect or the completion of the order in accordance with the contract.

4. Travelling and ancillary costs will only be reimbursed in so far as these formed part of the quotation.

1. The counterparty is obliged to comply with the contractually agreed time limits and deadlines. If the agreed time limits and deadlines are exceeded, LIGANOVA is entitled to withdraw from the contract and to assert a claim against the counterparty for the loss or damages incurred. Unless otherwise agreed, a failure to observe a deadline giving rise to the right of withdrawal from the contract is assumed if the agreed deadline has been exceeded by three calendar days.

2. If the counterparty is not responsible for exceeding the deadline (e.g. force majeure), LIGANOVA may set a reasonable grace period for the counterparty before the end of seven days after the counterparty has been given written notice of default by LIGANOVA in writing. If the work or services are not performed in full prior to the expiry of the grace period, LIGANOVA immediately has the right to withdraw from the contract.

3. If the work or services or a part thereof can only be performed immediately or at the time defined in the contract (therefore no grace period is possible), if the deadline is exceeded the entitlement to remuneration for the corresponding part of the work or service lapses. In this case LIGANOVA reserves the right to assert a claim for additional loss or damage.

4. If LIGANOVA is unable to accept the counterparty’s work or service at the agreed point in time and only accept it at a later date because LIGANOVA’s counterparty has rescheduled it, LIGANOVA will not be in default of acceptance vis-à-vis the counterparty.

1. The counterparty will store the documents and data etc he has created for the period of two years after the end of the order at his own expense and risk. The time of the end of the order is deemed to be the data of the final invoice within the meaning of Clause 6.1. Documents, samples etc which are the property of LIGANOVA must be returned to LIGANOVA after the execution of the order.

2. If documents etc which are the property of LIGANOVA are not returned within the period specified in Clause 8.1, LIGANVOVA is entitled to retain up to 50% of the invoice sum claimed until the documents etc. have been received by LIGANOVA.

1. The counterparty grants LIGANOVA the exclusive right of use to all work and services, ideas, drafts, designs etc. which the counterparty has created. This grant is unrestricted in content, time and place.

2. The transfer to third parties of rights of use which have been granted does not require the counterparty’s consent. The counterparty is also not entitled to any right to information about such a transfer.

3. LIGANOVA is entitled to amend and to use without restriction in an amended form the work and services created by the counterparty as part of the order as well as to amend all other work and services performed and use them in an amended form without restriction.

4. The counterparty may not use the work and services created as part of the order from LIGANOVA for other clients either in the same or an amended form and particularly all ideas, drafts, and designs. In the event of a breach of this provision, the counterparty is obliged to pay a contractual penalty of € 50,000.00. If the loss or damage to LIGANOVA is greater than this sum, the contractual penalty increases to the amount of the loss or damage suffered.

5. The counterparty warrants that all work and services which LIGANOVA receives under this contract are free from copyright, ancillary copyrights or other third-party rights. The counterparty also warrants that LIGANOVA will also receive the same comprehensive position in law with regard to third party work and services as specified in Clause 9.1. If this should not be possible in particular cases, LIGANOVA must be informed of this without delay.

6. The contractual remuneration includes full and final settlement for the above transfer of rights and the warranties.

7. LIGANOVA acquires the right to use the work and services within the agreed framework when payment of the remuneration is made in full. If, in accordance with Clauses 6.3 and/or 8.2, LIGANOVA is entitled to a right of retention of parts of the remuneration due to the counterparty, LIGANOVA acquires the rights set out in Clauses 9.1 to 9.5 with payment of (part of) the remuneration and formal acceptance of (part of) the work and services. The same applies if the final invoice within the meaning of Clause 6.2 has not been received by LIGANOVA within three weeks of the performance of the work and services or execution of the order.

8. All designs, products, ideas and/or parts thereof supplied by LIGANOVA and their execution are the intellectual property of LIGANOVA for which LIGANOVA claims copyright. The presentation is made in strict confidence in the context of the confidential relationship created with the counterparty by the contract negotiations and/or the joint project work. Every direct and/or indirect use, exploitation and/or imitation of all specified work and services, ideas and/or parts thereof as well as their implementation or execution (even in part) are only permitted in every case after LIGANOVA has agreed in writing. The same applies to making any amendments, modifications or adaptations.

1. LIGANOVA reserves the right to impose order-specific rules in respect of the neutral presentation of the counterparty towards LIGANOVA’s clients. This relates in particular to requirements on logos and inscriptions on the counterparty’s work clothes and that of his staff and vicarious agents.

2. During any possible performance of the order in the premises of LIGANOVA’s clients, the counterparty is prohibited from communicating directly with these clients or their staff. In these cases all communication on the performance of the order will be exclusively between LIGANOVA and the counterparty and/or between LIGANOVA and the client. All professional collaboration between the client or his staff and the counterparty or his staff in respect of the work to be performed is also prohibited. This does not apply to discussions on the coordination of the work after receiving the express consent of LIGANOVA on this point.

3. Prior to the conclusion of the contract, the contractor must inform LIGANOVA about all work that will be transferred in whole or in part to another undertaking. The same applies to outsourcing activities by the contractor which are tantamount to sub-contracting and which affect the order.

4. The counterparty is also forbidden to undertake promotion aimed at third parties from which it could be directly apparent or logically implied that the counterparty received the order for the work to be performed without the direct involvement of LIGANOVA. All references used by the counterparty must indicate that the project is being/was undertaken on behalf of LIGANOVA. The precise wording of the reference must be agreed with LIGANOVA. Permissible wordings are, for example, wordings along the lines of “… on behalf of LIGANOVA Netherlands B.V., the creative agency of XYZ for the project …”

5. The contractual partner also undertakes to obtain approval in advance and in writing from LIGANOVA for the creation of image and film documentation of events or projects which are the subject of this agreement. As a matter of principle, the making of image and film documentation of events or projects within the meaning of the foregoing sentence is only permitted for the company’s own archive. The publication of the image, film and plan documentation created for this purpose is prohibited as a matter of principle. Exceptions to this provision require the written approval of LIGANOVA prior to publication.

6. Departures from the provisions of Clauses 10.2 to 10.4 require the express consent of LIGANOVA.

7. In the event of an infringement of the obligations set out in Clauses 10.1 to 10.5, the counterparty is obliged to pay a contractual penalty of € 25,000.00. If the loss or damage incurred by LIGANOVA is greater than this amount, the contractual penalty is increased to the amount of the loss or damage incurred.

Transportation is at the counterparty’s risk.

Title passes directly to LIGANOVA on the hand-over of the goods or work and services. Hand-over occurs irrespective of whether goods or work and services undertaken on behalf of LIGANOVA remain in the counterparty’s premises after completion.

1. If the work and services should prove to be defective, a free replacement, rectification, rescission or a price reduction may be demanded at LIGANOVA’s option. The right to assert a claim for compensation remains unaffected. If rectification should fail, LIGANOVA may require a direct replacement, rescission or a reduction in price. In urgent cases LIGANOVA is entitled to arrange for the defects to be rectified at the counterparty’s expense and without previously notifying the counterparty. The warranty obligation ends 2 years after receipt of the goods and / or the work and services.

2. If goods or parts thereof are re-delivered as part of the rectification of defects, the warranty for these commences afresh. The prescriptive period is delayed by the notification of complaints up to the point in time when the counterparty finally refuses written claims by LIGANOVA.

3. LIGANOVA has at least one week from delivery to investigate the goods and/or work and services for defects and to notify a complaint for obvious defects.

1. The total liability of LIGANOVA on the grounds of an attributable breach in the performance of the agreement is limited to compensation for direct damages, up to the maximum amount stipulated in the Agreement (excluding VAT). If the agreement is essentially a continuing perfor mance contract with a term exceeding one year, the price stipulated for the agreement shall be the total of the compensation (excluding VAT) stipulated for one year. However, in no case shall the total compensation for direct damage exceed the amount that LIGANOVA receives from its insurance company, with a maximum amount of € 5.000.000 (five million Euros). Direct damage shall only include:

a) reasonable costs incurred by the counterparty in order for the performance of LIGANOVA to conform to the agreement; however, this alternative damage shall not be compensated if the Agreement is terminated by or at the request of the counterparty;

b) reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these General Terms and Conditions;

c) reasonable costs incurred to prevent or limit damage, insofar as the counterparty demonstrates that these costs resulted in the mitigation of direct damage within the meaning of these General Terms and Conditions.

1. The counterparty is obliged to maintain confidentiality vis-à-vis third parties on all details, for example of the organisation, production or sales of LIGANOVA and companies affiliated with LIGANOVA or in a business relationship with LIGANOVA.
This obligation of confidentiality extends beyond the end of an order.

2. The counterparty warrants that a corresponding obligation of confidentiality will be concluded with his staff and other vicarious agents as well as with the third party and external companies acting on his behalf.

1. Amendments of or additions to these General Terms and Conditions of Business are only valid if they are agreed in writing.

2. Jurisdiction lies with the court which has local and material jurisdiction at the location of the registered office of LIGANOVA Netherlands B.V.

If individual provisions of these General Terms & Conditions are or become invalid this does not affect the validity of the remaining provisions. The invalid provision is to be replaced by a valid provision which comes closest to the economic meaning and intent of the invalid clause.