General Terms and Conditions
of Ligneus GmbH

§ 1
Scope

These terms and conditions apply exclusively to all present and future business relations with the Customer. Divergent General Terms and Conditions of the Customer will only become an integral part of the contract, even with its knowledge, when they have been explicitly agreed to in writing by Ligneus GmbH (contractor) and only then and in this respect.
The regulations of the VOB/B (standard building contract terms) are valid supplementary to the general terms and conditions in the version valid at the time of the conclusion of the contract. In the event of the commissioning of services which are not firmly and permanently connected with the main services, the regulations of the VOL/B (standard service contract terms) are valid in the version valid at the time of the conclusion of the contract.

 

§ 2
Conclusion of contract

All contracts are to be in writing. The contractor's offers are always made subject to alteration and only become binding through the written confirmation of an order by the contractor.
A contract is regarded as having been completed when an order by the customer has been submitted which has been confirmed in writing by the contractor.
Additional amendment requests by the customer will only become an integral part of the contract when the amendments have been confirmed in writing by the contractor. They authorise the contractor to adjust the contractual conditions in accordance with the amendments.
The contractor can demand security for the services to be performed by it in advance in accordance with § 648 of the German Civil Code.

 

§ 3
Prices and adjustment of prices

All prices are Euro net prices exclusive packaging and are considered to be ex works if delivery has not been agreed upon.
Should an adjustment of substantial price factors occur after completion of the contract, especially for materials, wages and additional costs, energy expenditures and taxes, the contractor is authorized to increase the contractually agreed prices accordingly for deliveries and services which should be performed later than six weeks after completion of the contract. If the price increase amounts to more than 5% of the value of the contract, the Customer is authorized to withdraw from the contract within a period of 14 days after written notification of the price increase has been received.

 

§ 4
Performance

The customer is under an obligation to provide the contractor with all necessary technical documents for the building project which are relevant for the services agreed upon in the contract. Mistakes in these documents are chargeable to the customer. Differences in measurements resulting therefrom are not the contractor's responsibility. Should improvements or substitute deliveries become necessary as a result, these are to be paid for by the customer. The contractor is not under an obligation to check whether technical documents given to it are correct or not.
If the customer receives performance documentation from the contractor, these are to be checked by the Contractor immediately, also with regard to all major and requested features. The customer has to sign and return these documents to the contractor to indicate its consent. Possible mistakes are to be made clear and corrections carried out clearly.
It is the customer's responsibility to inform the contractor about possible amendments to the planned project immediately inasmuch as these affect the production of the services or goods agreed upon in the contract. The customer can be charged for additional expenses arising from this.

 

§ 5
Delivery time & assembly dates

Compliance with the agreed time of delivery and assembly date assumes that the customer has fulfilled its obligations on schedule. If amendments to the service documents of the contractual products or to the carrying out of the assembly become necessary, the delivery time or the assembly date will be changed accordingly.
A delay in delivery and performance by the contractor is only constituted by planning mistakes, defects in the contract goods or erection problems develop which fall within the contractor's responsibility.
If the contractor falls into delay, compensation can only be demanded from it if an adequate extension of the original term according to § 323, paragraph 1, BGB (German Civil Code) had been previously set.
The contractor is only liable for a performance delay in the maximum amount of 5% of the respective order value. After the extension has expired, the Contractor is liable for 0.5% of the order sum per working day of the delayed performance up to a maximum value of 5% of the delayed performance.
The restitution of consequential damage, for example, due to missed profits or the procurement of a replacement, is excluded. The contractor is allowed to prove that the customer has suffered less damage.
Stoppages by the contractor as well as suppliers or forwarding agents upon which the manufacture of the contractual products and their transport are dependent release the contractor, upon immediate communication of this fact to the customer, from compliance with the agreed upon delivery time or assembly date. Stoppages in this sense mean, apart from all other hindrances the contractor has not caused culpably, in particular general raw material and energy shortages, traffic bottlenecks, official intervention, industrial action, war and riots, terrorist attacks and all fire, water and mechanical damage.

 

§ 6
Place of delivery and passing of risk

a) during transportation of the contractual products, the risk passes on to the customer as soon as it has been submitted to the forwarding agent or when the contractual products have been passed on for dispatch as agreed;

b) on delivery with assembly the risk passes to the customer on the day of delivery, for partial assembly upon completion of the independent partial assembly.
If nothing else has been agreed upon, the dispatch will be carried out at the risk and cost of the customer. The packaging will be determined according to the order. Pallets, weather boards as crates and other borrowed packaging material remain the property of the contractor. The return of the same is to be carried out within a reasonable period of time, in perfect condition and with free delivery.
If the customer does not take delivery of the contractual products after being advised about their completion within a period of one week after the announcement, the risk is valid as of their supply and passes to the customer; the contractor is only liable for intent and gross negligence.

 

§ 7
Notification of defects and taking delivery

If the order is confined to the delivery of the contractual products, the customer has to check the products immediately upon their arrival at the place of destination in order to be able to inform immediately in writing about possible defects, an incomplete delivery or about a deviation from the agreed quality. An enforcement of the warranty claim is otherwise excluded.
The customer carries the burden of proof for all conditions of entitlement, particularly for the defects themselves, for the time of their determination and for a timely notification of defects.
The notification of defects must indicate the delivery note number and exactly describe the elements being objected to. An opportunity for investigation/ improvement at the place of destination is to be given to the contractor upon request.
If defects in the contractual products are first determined at the time of assembly, the burden of proof lies with the customer that the defects arose within the contractor's sphere of responsibility. This does not apply when the assembly is carried out by the contractor.
Defects in part of the delivery cannot lead to an objection to the whole delivery provided that an isolation of the parts which are free of defects from the parts which have defects is possible and acceptable.
Inasmuch as the customer pre-determined the use of certain materials and the determined defects are based on the use of such materials, no obligation under a warranty exists for the contractor.
If the contract for work and services also covers the assembly of the contractual products at the place of destination, a formal acceptance inspection according to the regulations of the VOB/B (standard building contract terms) is to be carried out. If the customer avoids a formal acceptance inspection, the regulations of the VOB/B are then valid with regard to the fictitious acceptance inspection. Defects determined during the acceptance inspection are to be recorded in the acceptance certificate and a time period to eliminate the defects agreed upon.

 

§ 8
Guarantee and liability

The contractor is only liable for intent and gross negligence with regard to a violation of secondary obligations. This does not apply to an imputable injury to the life, body and health of the customer and its employees.
The contractor guarantees a subsequent improvement or a substitute delivery for the defects according to its choice. If the improvement fails, the customer can demand a reduction of remuneration (diminution of the price) or cancellation of the contract (withdrawal) according to its choice.
Performance of the order is to be carried out according to general technological developments within the bounds of the technically necessary process-related permissible variations in standard quality provided that individual performance norms have not been agreed upon with the customer. The customer is not entitled to a right of withdrawal in these cases.
If the customer gives notice of repudiation of the contract due to legal or material defects after a failed implementation, it is only then entitled to a claim for compensation regarding the defects inasmuch as the contractor can be accused of intent or negligence.
Guarantee and compensation claims by the customer due to defects fall under the statute of limitations within a year after delivery of the products or after acceptance of the work after assembly.

 

§ 9
Remuneration

The Contractor's invoices are to be paid without deductions within two weeks of the date of invoice. The Contractor is authorized to pay interest in the amount of 8 percentage points above the respectively valid base interest rate of the European Central Bank in there is a default in payment. The Contractor reserves the right to prove higher damage due to delay and to assert this.
The customer can only discharge these by way of counterclaims which are acknowledged by the contractor or which have been established legally. The contractor can only exercise a right of retention when the counterclaim is based on the same contractual relationship.

 

§ 10
Reservation of title

The delivered contractual products remain the property of the contractor until complete payment of all claims from the contract of manufacture have been rendered. The pledging or transfer of ownership by way of security of the contractual products which are under reservation of title is inadmissible. In the event of a levy of execution, the customer has to indicate the reservation of title and to inform the contractor immediately.
In so far as the property passes by act of law to the builder due to the installation or assembly of the delivered goods, the customer already now transfers its claim to works compensation vis-à-vis the builder to the contractor in the amount of the invoice value as security. The contractor accepts this assignment.
The customer is authorized to retract the transferred claim. If there is a stoppage of payments or cheque or bill of exchange proceedings against the customer, the direct debit authorisation expires. The contractor is authorized to report the assignment to the builder if the customer falls behind with a payment.
The customer has to inform the contractor immediately about third parties having access to the contractual products or the transferred claim.
The customer bears all costs which must be expended to repeal the claims of third parties to the contractual products or to the transferred claim in as far as they cannot be collected from third parties.

 

§ 11
Copyright

Examining the right of reproduction and copyright of all outlines and samples is the responsibility of the customer. The copyright and the right of reproduction of its own outlines, drafts, originals, films and similar things in any proceedings and for any purpose remains the contractor's, subject to other explicit regulations, even if the order is not placed. In these cases, an obligation to hand them over, even copies, does not exist. The contractor is only obliged to preserve someone else's objects which have been put at its disposal for six months after delivery of the last contract product which was manufactured using such objects.
The contractor is authorized to attach its company name, logo and business identification number on deliveries of every kind in the scope of attaching appropriate practices and regulations.

 

§ 12
Miscellaneous

Amendments to the contract as well as its termination must be in writing in order to be effective.
The place of jurisdiction for all claims is Düsseldorf, also the customer's seat according to the contractor's choice. The contractual relationship is subject to German law excluding UN Purchase Law.
Should a provision of these General Terms and Conditions or the supplementary contract be or become invalid, the validity of the rest of the General Terms and conditions and the contract shall not be affected thereby. The parties are obliged to replace invalid provisions with a valid one which comes as close to the actual meaning of the origin clause as possible.

Stand: 01.11.2007