General terms and conditions
Only written orders are valid. Additional or deviating agreements and/or terms and conditions of business of the supplier shall only be valid if they have been accepted by us in writing; such clauses in the supplier’s terms and conditions of business which do not conflict with the provisions of these terms and conditions of purchase shall apply to the contractual relationship in addition. Our Terms and Conditions of Purchase also apply to future orders.
§2 Order confirmation
Each order must be confirmed in writing by the supplier with a binding indication of price and delivery time. We reserve the right to cancel the order if a confirmation is not received within 8 days.
§3 Delivery item
The Seller warrants that the delivery item complies with the recognized rules of technology, the Equipment Safety Act, the trade associations and other relevant safety and accident prevention regulations.
§4 Working in the company
Insofar as an assembly of the construction work is associated with the delivery, our terms and conditions for assembly/repair or conditions for construction work shall also apply.
§5 Lead time
The delivery time must be adhered to. We shall be entitled to suspend delivery for a reasonable period of time. In this case, the delivery time will be extended by the period of interruption. As soon as the supplier recognises that the delivery cannot be carried out in full or in part on time, he shall notify the supplier immediately, stating the reasons and the probable duration of the delay. If the supplier cannot rely on an acknowledged obstacle, we shall be entitled to demand a contractual penalty of 0.5% of the total price calculated from the order for the first full week of the delay. This rate increases by 1.15 times the penalty for the previous week for each completed week of delay. Without prejudice to further claims arising from default, the contractual penalty is limited to a maximum of 5% of the agreed purchase price. Failure to comply with the agreed delivery period shall entitle us to withdraw from the contract without being in default and setting a grace period. Claims for compensation for any further damage incurred by us – in addition to the aforementioned contractual penalty – shall not be excluded if the supplier is at fault for non-compliance with the agreed delivery period.
Payment is made after receipt of the delivery and receipt of invoice within 14 days with 3% discount or after 30 days net.
The warranty period is two years after handover, if an acceptance has taken place, two years after this. For delivery items that are to be assembled in our works, it begins with the completion of the assembly which must be communicated to the supplier without delay; if a test run has been agreed, it shall commence as soon as this has been carried out and must also be communicated to the supplier. In all other cases, the warranty period shall commence upon receipt of the delivery item at our works. The warranty period shall be interrupted by written notification of defects; the interruption shall end as soon as the supplier rejects the warranty in writing. The supplier waives the right to object to delayed notification of defects, with the exception of obvious defects. In urgent cases, we shall be entitled to remedy the defects ourselves or have them remedied by third parties and to demand reimbursement of the necessary expenses. With the removal of the defect or the new delivery, the warranty period with regard to the repaired or newly delivered part of the delivery item shall commence again. The supplier shall indemnify us from claims arising from the producer’s liability insofar as he does not prove that he is not responsible for the defect triggering the liability.
The supplier must treat the order as a trade secret and must therefore treat it confidentially. Our information as well as drawings, models, templates, tools, etc., which we have provided to the supplier or which he has produced according to our specifications, may not be used for other purposes, duplicated or made available to third parties. They shall be returned to us immediately and in full upon request.
The supplier is only allowed to refer to the existing business relationship with us in advertising in any form with the written permission of the supplier.
§9 Prohibition of assignment
The supplier is not entitled to assign his claims to third parties without our express consent, with the exception of the assignment of the purchase price claim to his house bank arising from the business documents at the time of conclusion of the contract.
§10 Place of performance and place of jurisdiction
For all rights and obligations arising from the business dealings with us, Ascheberg shall be the place of performance for both parties for delivery and payment and Lüdinghausen shall be the place of jurisdiction. Lüdinghausen shall also be the place of jurisdiction for actions in the bill of exchange, cheque and deed proceedings. The district court of Lüdinghausen may be replaced by the district court of Münster
The validity of the Uniform Law on the Conclusion of International Sales Contracts for Movable Goods of 17.07.1973 (BGBII856-EKAG) is excluded. German law applies exclusively.
§12 Severability Clause
Should an agreement in this contract be or become invalid or unenforceable in whole or in part, or should it lose its legal validity or feasibility, this shall not affect the validity of its remaining agreements.
Used machines – Warranty conditions
§1 Duration of the guarantee
New equipment is covered by a 12-month warranty from the date of invoicing. In principle, all used equipment is sold under exclusion of any liability for material defects – i. e. without any warranty. If so agreed, we provide a voluntary used machine guarantee of 6 months from the time of invoicing of a used machine. The basis is the corresponding invoice date.
§2 Requirements / Warranty Claim
The device must have been purchased on the distribution channel specified by us. The warranty claim is only valid for damage to the subject matter of the contract itself. There is no warranty claim for consumables (e. g. fuses, batteries, lamps, wear parts etc.). The reimbursement of expenses for dismantling and installation, inspection of corresponding parts, as well as claims for loss of profit and damages are excluded from the guarantee. The warranty is not extended by the use of the guarantee. It is still running a new warranty period. In the event of resale or any other change of ownership, the guarantee will continue to run for the remaining period of time. The customer is obliged to report the defect in writing immediately after discovery.
For the duration of the warranty, we shall remedy all defects in the product which can be proven to be due to a material or manufacturing defect. We undertake, at our discretion, to repair the defective goods or replace a reduced value. In the case of used equipment, we are expressly entitled to replace defective parts with used spare parts. However, these used spare parts must not be older than the total equipment in itself. The warranty obligation is not triggered by slight deviations of the nominal condition, which are insignificant for the suitability of the device for value and use.
Damage/defects caused by:
- improper commissioning, operation and transport
- external influences such as fire, water and force majeure
- damage caused by accident, fall and impact
- negligent or wilful destruction
- normal wear and tear, operating fluids or lack of maintenance
- repair or inspection by unqualified persons and consequential damage resulting therefrom
- removing or making unrecognizable the serial or chassis numbers
- repair, conversion and removal of used items
- any warranty claim expires if:
- maintenance, testing or service work must be carried out by personnel who are not authorized by Klaas
- the prescribed maintenance and inspection intervals have not been observed or necessary repairs have not been carried out.
- parts of foreign origin
- sealings have been loosened, setting values changed or technical changes have been made.
§ 4 Miscellaneous
Warranty services relating to the carrier vehicle must be handled by the respective manufacturer and depend on compliance with their warranty provisions. We therefore recommend that you have regular maintenance work carried out in the authorised workshops of the manufacturers and the prescribed general inspections carried out by the well-known inspection bodies. Furthermore, the company’s general terms and conditions apply.
§1 Conclusion of Contract, General Information
If there is an uncontradicted written order confirmation, it is decisive for the content of the contract and the scope of the repair/assembly. Supplementary agreements and contract amendments require the written confirmation of the contractor. If the repair/assembly item has not been delivered by the contractor, the customer/customer must point out existing industrial property rights with regard to the item; if the contractor is not at fault, the customer/customer shall indemnify the contractor from any claims of third parties arising from industrial property rights.
§ 2 Non-executable repair/installation
The services provided for the submission of a cost estimate as well as the additional expenses incurred and to be proven (defect search time equals working time) will be charged to the customer/purchaser if the repair/assembly cannot be carried out despite the order placed by the customer/purchaser for reasons for which the contractor is not responsible, in particular if the defective defect did not occur during the inspection, replacement parts are not to be procured, the customer/purchaser is to blame for the agreed date. The repair/assembly item only needs to be returned to its original condition at the express request of the customer/customer against reimbursement of costs, unless the work carried out was not necessary.
In the case of unfeasible repair/assembly, the contractor shall not be liable for damage to the repair/assembly item, the violation of contractual ancillary obligations and for damage that has not occurred to the repair/assembly item itself, irrespective of the legal grounds on which the customer/customer invokes. This exclusion of liability does not apply in the case of intent, gross negligence on the part of the owner or executive staff as well as culpable breach of essential contractual obligations.
In the event of culpable breach of essential contractual obligations, the contractor shall only be liable – except in cases of intent and gross negligence on the part of the owner or executive staff – for reasonably foreseeable damage typical of the contract.
§3 Indication of costs, cost estimate
As far as possible, the expected repair/assembly price will be indicated to the customer/purchaser upon conclusion of the contract, otherwise the customer/purchaser may set cost limits. If the repair/assembly cannot be carried out at these costs or if the contractor deems it necessary to carry out additional work during the repair/assembly, the customer/purchaser must obtain the consent of the customer/purchaser if the specified costs are exceeded by more than 15 %.
If a cost estimate with binding price estimates is requested before the repair/assembly is carried out, this must be expressly requested by the customer/purchaser. Such a cost estimate shall only be binding if it is submitted in writing and described as binding. The services rendered for the specification of the cost estimate shall not be charged to the customer/purchaser insofar as they can be utilised during repair/assembly.
§4 Price and payment
The contractor is entitled to demand an appropriate advance payment upon conclusion of the contract. For the calculation of repair/assembly, the prices for used parts, materials and special services as well as the prices for labour, travel and transport costs are to be shown separately, applying the applicable lump-sum expenses for domestic and foreign countries. If the repair/assembly is carried out on the basis of a binding cost estimate, a reference to the cost estimate is sufficient, whereby only repair/assembly conditions and deviations in the scope of services are to be specified separately. Value-added tax shall be charged in addition to the customer/purchaser at the respective statutory rate. A possible rectification of the invoice by the contractor and a complaint by the customer/purchaser must be made in writing no later than four weeks after receipt of the invoice. Payment is to be made upon acceptance and handing over or sending the invoice without discount. The withholding of payments or offsetting due to possible counterclaims of the customer is not permissible, unless these are acknowledged or have been legally established.
§ 5 Co-operation and technical assistance of the customer/customer in repair/assembly outside the contractor’s works
The customer/customer shall support the repair/assembly personnel in carrying out the repair/assembly at his own expense. The customer/customer must take the special measures necessary to protect persons and objects at the repair/assembly site. He must also inform the repair/assembly manager about existing special safety regulations, insofar as these are relevant for the repair/assembly personnel. He shall notify the Contractor of any breach of such safety regulations by the repair/assembly personnel. In the event of serious violations, he can deny the offender access to the repair/assembly site in consultation with the repair/assembly manager. The customer/customer shall be obliged to provide technical assistance at his own expense, in particular: provision of the necessary suitable auxiliaries in the number and time required for repair/assembly; the auxiliaries shall follow the instructions of the repair/assembly manager. The contractor does not assume any liability for the assistants. If a defect or damage has been caused by the auxiliary staff due to instructions from the repair/assembly manager, the provisions of Sections 10 and 11 shall apply mutatis mutandis.
b) Execution of all construction, ballast and scaffolding work including procurement of the necessary building materials.
c) provision of the necessary equipment and heavy tools and the necessary commodities and materials.
d) provision of heating, lighting, power, water, including the necessary connections.
e) Provision of necessary, dry and lockable rooms for the storage of the tools of the repair/assembly personnel.
f) Protection of the repair/assembly site and materials from harmful influences of any kind, cleaning of the repair/assembly site.
g) Provision of suitable, theft-proof lounges and workrooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for the repair/assembly personnel.
h) Provision of the materials and all other actions necessary to adjust the repair/installation item and to carry out a contractually agreed trial run.
The technical assistance provided by the customer/customer must ensure that the repair/assembly work can be started immediately after the arrival of the repair/assembly personnel and carried out without delay until acceptance by the customer/customer. Insofar as special plans or instructions of the contractor are required, he shall make them available to the customer/purchaser in good time. If the customer/customer does not comply with his obligations, the contractor is entitled, but not obliged, to carry out the actions incumbent on the customer/customer in his place and at his expense. In all other respects, the legal rights and claims of the contractor shall remain unaffected.
§ 6 Transport and insurance for repair/assembly at the contractor’s works
Unless otherwise agreed in writing, transport to and from the object to be repaired/assembled – including packaging and loading, if requested by the customer/purchaser – shall be carried out on his account, otherwise the object to be repaired/assembled shall be delivered by the customer/purchaser at his own expense to the contractor and shall be collected by the customer/purchaser after the repair/assembly has been carried out at the contractor’s premises.
The customer/purchaser bears the transport risk.
At the request of the customer/customer, the return transport will be insured against the insurable transport risks, e. g. theft, breakage, fire, at his expense. During the repair/assembly period at the Contractor’s works there is no insurance cover. The customer/customer must ensure that the existing insurance cover for the item to be repaired/assembled is maintained, e. g. with regard to fire, tap water, storm and machinery breakage insurance. Insurance cover for these risks can only be obtained at the express request of the customer/purchaser. If the customer/purchaser is in default of acceptance, the contractor may charge storage charges for storage in his works. The item to be repaired/assembled may also be stored elsewhere at the discretion of the contractor. Costs and risk of storage shall be borne by the customer/purchaser.
§7 Repair/assembly period
The information on the repair/assembly times is based on estimates and is therefore not binding. The customer/customer may only request the agreements of a binding repair/assembly period, which must be described in writing as binding, if the scope of the work is precisely defined. The binding repair/assembly period shall be deemed to have been complied with if the repair/assembly item is ready for acceptance by the customer/purchaser, in the event of a contractually stipulated trial run, by the end of this period. In the case of subsequent additional and extension orders or necessary additional repair/assembly work, the agreed repair/assembly period shall be extended accordingly, alternatively by a reasonable extension. If the repair/assembly is delayed due to industrial action, in particular strikes and lockouts, as well as the occurrence of circumstances for which the contractor is not responsible, the repair/assembly period shall be extended accordingly, or alternatively by a reasonable extension of the repair/assembly period, insofar as such obstacles are demonstrably of considerable influence on the completion of the repair/assembly; this shall also apply if such circumstances occur after the contractor has fallen into arrears. In the event of damage to the customer/customer as a result of the contractor’s delay, the customer/customer is entitled to claim compensation for damage caused by the delay; this shall amount to 0.5% for each full week of delay, but in total not more than 5% of the repair/assembly price for that part of the item to be repaired/assembled by the contractor that cannot be used in time as a result of the delay. If the customer/customer grants the contractor in default a reasonable period of grace – taking into account the statutory exceptions – with the express declaration that he/she will refuse to accept the repair/assembly work after expiry of this period, and if the period of grace is not observed, the customer/customer shall be entitled to withdraw from the contract within the framework of statutory provisions. Further claims do not exist – without prejudice to § 11.3.
- The customer/customer shall be obliged to accept the repair/assembly work as soon as he/she has been notified of the termination of the repair/assembly work and any contractually agreed testing of the repair/assembly item has taken place. If the repair/installation proves not to be in accordance with the contract, the contractor is obliged to remedy the defect repair/installation conditions. This does not apply if the defect is insignificant for the interests of the customer/purchaser or is based on a circumstance attributable to the customer/purchaser. If there is a minor defect, the customer/customer may not refuse acceptance if the contractor expressly acknowledges his obligation to remedy the defect.
- If acceptance is delayed through no fault of the Contractor, acceptance shall be deemed to have taken place two weeks after notification of the completion of the repair/installation.
- With acceptance, the contractor’s liability for recognizable defects shall lapse unless the customer/customer has reserved the right to assert a particular defect.
§9 Retention of title, extended lien
The contractor retains title to all accessories, spare parts and replacement units used until receipt of all payments arising from the repair/assembly contract. Additional collateral agreements can be made. Due to its claim arising from the repair/assembly contract, the contractor is entitled to a lien on the repair/assembly object of the customer/purchaser which has become his property on the basis of the contract. The right of lien may also be asserted for claims arising from work carried out earlier, spare parts deliveries and other services, insofar as they are related to the repair/installation item. The lien shall only apply to other claims arising from the business relationship if they are undisputed or legally binding.
§10 Warranty, claims for defects
- After acceptance of the repair/installation, the contractor shall be liable for defects in the repair/installation, which shall also include the absence of expressly warranted characteristics occurring within six months after acceptance, to the exclusion of all other claims of the customer/purchaser, without prejudice to § 6 and § 11, in such a way that he shall remedy the defects. The customer/purchaser must notify the contractor immediately in writing of any defects found.
- The period for liability for defects shall be extended by the duration of the downtime of the repair/assembly item caused by the repair work.
- The Contractor shall not be liable if the defect is insignificant for the interests of the customer/purchaser or is based on a circumstance attributable to the customer/purchaser. This applies in particular to the parts provided by the customer/purchaser.
- In the event of any improper modifications or repair work carried out by the customer/purchaser or third parties without the contractor’s prior consent, the contractor’s liability for the consequences arising therefrom shall be waived. Only in urgent cases of endangering operational safety and to prevent disproportionately large damage, whereby the contractor must be notified immediately, or if the contractor is in default with remedying the defect, shall the customer/customer be entitled to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary costs from the contractor.
- Of the direct costs arising from the repair, the contractor shall bear – insofar as the complaint proves to be justified – the costs of the replacement part, including dispatch, as well as the reasonable costs of dismantling and reassembly, furthermore, if this can reasonably be demanded in the individual case, the costs of the possibly required provision of its fitters and assistants. Otherwise, the customer/purchaser shall bear the costs.
- If the contractor allows a reasonable period of grace granted to him for the remedy of defects to elapse without result through his fault, the customer/customer has a right to a reduction in price. The customer’ s/purchaser’s right to reduce the purchase price shall also apply in other cases of failure to remedy the defect. Only if the repair/assembly is demonstrably of no interest to the customer despite the reduction in price, the customer/ordering party can cancel the contract after notification.
§11 Other liability of the contractor, exclusion of liability
- If parts of the item to be repaired/assembled are damaged through the fault of the contractor, the contractor shall, at his discretion, either repair or re-deliver the item at his own expense. The compensation obligation is limited to the amount of the contractual repair/assembly price. Otherwise § 11.3 applies accordingly.
- If, due to the fault of the contractor, the repair/assembly item cannot be used by the customer/customer as stipulated in the contract due to omitted or faulty execution of proposals and consultations made before or after conclusion of the contract as well as other contractual ancillary obligations – in particular instructions for operation and maintenance of the repair/assembly item – in accordance with the contract, the provisions of Sections 10 and 11 shall apply to the exclusion of further claims by the customer/customer.1 and § 11.3 accordingly. The customer/ordering party may not assert any claims for compensation, in particular no claims for damages, not even from non-contractual acts, or other rights against the contractor due to any disadvantages associated with the repair/assembly, beyond those granted to him in these provisions, irrespective of the legal grounds on which he invokes himself. This exclusion of liability does not apply in the case of intent, gross negligence on the part of the owner or executive staff as well as culpable breach of essential contractual obligations.In the event of culpable breach of essential contractual obligations, the contractor shall only be liable – except in cases of intent and gross negligence on the part of the owner or executive staff – for reasonably foreseeable damage typical of the contract. Furthermore, the exclusion of liability shall not apply in cases in which liability is assumed for personal injury or material damage to privately used objects in the event of defects in repair/assembly according to the German Product Liability Act (Produkthaftungsgesetz). It shall also not apply in the absence of properties that are expressly warranted, if the warranty was specifically intended to protect the customer/customer against damage that has not occurred to the repair/assembly item itself.
§12 Limitation period
All claims of the customer/customer – for whatever legal reasons – become statute-barred after 12 months. The statutory time limits shall apply to claims for damages pursuant to Section 11. If the contractor carries out the repair/assembly work on a building and causes defects, the statutory deadlines shall also apply.
§13 Replacement performance of the customer
If, during repair/assembly work outside of the Contractor’s works, the devices or tools provided by the Contractor are damaged at the repair/assembly station without the Contractor’s fault, or if they are lost without the Contractor’s fault, the Customer/Orderer shall be obliged to compensate for such damage. Damage caused by normal wear and tear shall not be taken into account.
§14 Place of jurisdiction, applicable law
For all disputes arising from the contractual relationship, if the customer/customer is a registered merchant, a legal entity under public law or a special fund under public law, the court of the contractor’s headquarters shall have jurisdiction. The contractor may also refer the matter to the court having jurisdiction over his branch responsible for repair/assembly or to the court having jurisdiction over the customer/customer. The relevant law of the Federal Republic of Germany shall apply exclusively.
§15 Severability clause
If any provision of this Agreement is or becomes invalid or unenforceable in whole or in part, or if it loses its validity or enforceability, this shall not affect the validity of its remaining provisions.
Sales and delivery conditions
All deliveries and services are based on these terms and conditions as well as any separate contractual agreements. Deviating terms and conditions of purchase of the customer shall not become part of the contract even if the order is accepted. In the absence of any special agreement, a contract shall come into existence upon written confirmation of the Supplier’s order.
The scope of delivery shall be determined by the Supplier’s written order confirmation. In the event of an offer by the supplier with a time commitment and timely acceptance of the offer, unless a timely order confirmation is available. Supplementary agreements and changes require written confirmation by the supplier.
The supplier reserves the right to make samples, cost estimates, drawings and the like. Information of a physical and immaterial nature – even in electronic form – is subject to proprietary rights and copyrights; it may not be made accessible to third parties. The Supplier undertakes to make information and documents designated by the Purchaser as confidential available to third parties only with the Purchaser’s consent.
§2 Price and payment
In the absence of special agreement, prices are ex works, unpacked, free loading, without transport insurance. Value-added tax is added to the prices at the respective statutory rate. In the absence of a special agreement, payment shall be made without any deduction to the Supplier’s account, i. e. 1/3 down payment after receipt of the order confirmation, 1/3 as soon as the Purchaser has been notified that the main parts are ready for dispatch, the remainder within one month after transfer of risk. The Purchaser shall only have the right to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or legally binding.
§3 Delivery time, delivery delay
The delivery time is determined by the agreements of the contracting parties. Compliance with these terms and conditions by the supplier presupposes that all commercial and technical questions between the contracting parties have been clarified and that the purchaser has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or approvals or the payment of a down payment. If this is not the case, the delivery period shall be extended accordingly, alternatively by a reasonable period of time. This shall not apply if the Supplier is responsible for the delay. Compliance with the delivery period is subject to the proviso of correct and timely delivery to us by our own suppliers. The supplier shall inform the supplier as soon as possible of any impending delays. The delivery period shall be deemed to have been met if the delivery item has left the supplier’s works or readiness for dispatch has been notified by the end of the delivery period. Insofar as an acceptance has to take place, the acceptance date – except in the case of justified refusal to accept – shall be decisive, alternatively the notification of readiness for acceptance. If dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the costs incurred as a result of the delay shall be charged to the customer, starting one month after notification of readiness for dispatch or acceptance.
If non-compliance with the delivery period is due to force majeure, industrial disputes or other events beyond the control of the supplier, the delivery period shall be extended accordingly. The Supplier shall inform the Purchaser of the beginning and end of such circumstances. The Purchaser may withdraw from the contract without setting a deadline if the Supplier is finally unable to provide the entire performance before the passing of risk. In addition, the customer may withdraw from the contract if, in the case of an order, it becomes impossible to execute part of the delivery and he has a justified interest in rejecting the partial delivery. If this is not the case, the customer must pay the contract price attributable to the partial delivery. The same shall apply in the event of the Supplier’s inability to perform. If the impossibility or inability to perform occurs during the default of acceptance or if the customer is solely or largely responsible for these circumstances, he remains obligated to counter-performance.
If the Supplier is in default and the Purchaser suffers damage as a result of this, he shall be entitled to demand a lump-sum compensation for delay. It shall amount to 0.5 % for each full week of delay, but in total not more than 5 % of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. If the Purchaser sets the Supplier a reasonable deadline for performance – taking into account the statutory exceptions – after the due date and if the deadline is not met, the Purchaser shall be entitled to withdraw from the contract within the framework of the statutory provisions. Further claims arising from delayed delivery shall be determined exclusively in accordance with Section 7.2 of these Terms and Conditions of Sale and Delivery.
§4 Transfer of Risk, Acceptance
The risk shall pass to the purchaser when the delivery item has left the factory, even if partial deliveries are made or the supplier has assumed other services, e. g. shipping costs or delivery and installation. Insofar as an acceptance has to take place, this is decisive for the passing of risk. It must be carried out immediately on the acceptance date, alternatively after the Supplier’s notification of readiness for acceptance. The customer may not refuse acceptance in the case of a minor defect. If dispatch or acceptance is delayed or omitted as a result of circumstances for which the Supplier is not responsible, the risk shall pass to the Purchaser on the day of notification of readiness for dispatch or acceptance. The Supplier undertakes to take out the insurances requested by the Purchaser at the Purchaser’s expense. Partial deliveries are permissible, as far as reasonable for the customer.
§5 Retention of title
The supplier retains title to the delivery item until all payments arising from the delivery contract have been received.
The Supplier shall be entitled to insure the delivery item against theft, breakage, fire, water and other damage at the expense of the Purchaser, unless the Purchaser has demonstrably taken out the insurance itself. The Purchaser hereby assigns his claims arising from these insurance contracts to the Supplier for the period up to the transfer of title. The Purchaser may not sell, pledge or assign the delivery item as security. In the event of seizure, confiscation or other dispositions by third parties, the supplier must be notified immediately.
In the event of breach of contract by the Purchaser, in particular in the event of default of payment, the Supplier shall be entitled to take back the delivery item after a reminder and the Purchaser shall be obliged to surrender it. On the basis of the retention of title, the supplier may only reclaim the delivery item if he has withdrawn from the contract. The application for the opening of insolvency proceedings entitles the supplier to withdraw from the contract and to demand the immediate return of the delivery item.
§6 Claims for defects
The supplier shall provide the following warranty for defects of quality and defects of title of the delivery, excluding further claims – subject to Section 7 – as follows:
All those parts shall be repaired or replaced free of charge, at the Supplier’s discretion, which are found to be defective as a result of a circumstance existing prior to the transfer of risk. The detection of such defects must be reported to the supplier immediately in writing. Replaced parts shall become the property of the supplier. The Purchaser shall grant the Supplier the necessary time and opportunity to carry out all rectifications and replacement deliveries deemed necessary by the Supplier after consultation with the Supplier; otherwise the Supplier shall be exempted from liability for the resulting consequences. The Purchaser shall only have the right to remedy defects himself or have them remedied by third parties and to demand reimbursement of the necessary expenses from the Supplier only in urgent cases of endangering operational safety or to prevent disproportionately large damage, whereby the Supplier shall be notified immediately.
Of the direct costs incurred as a result of rectification of defects or replacement delivery, the Supplier shall bear the costs of the replacement part, including shipping, insofar as the complaint proves to be justified. It shall also bear the costs of dismantling and installation as well as the costs of any necessary provision of the necessary fitters and assistants including travel expenses, insofar as this does not result in a disproportionate burden on the supplier. The Purchaser shall have the right to withdraw from the contract within the framework of statutory provisions if the Supplier – taking into account the statutory exceptions – allows a reasonable period of grace set for the repair or replacement delivery due to a material defect to elapse fruitlessly. If there is only an insignificant defect, the Purchaser shall only be entitled to a reduction of the contract price. The right to a reduction of the contract price shall otherwise be excluded. Further claims shall be determined in accordance with Section 7.2 of these terms and conditions. No warranty is assumed in particular in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable subsoil, chemical, electrochemical or electrical influences – insofar as they are not the responsibility of the Supplier.
If the Purchaser or a third party makes improper repairs, the Supplier shall not be liable for the resulting consequences. The same shall apply to changes made to the delivery item without the supplier’s prior consent.
Defects of title:
If the use of the delivery item leads to an infringement of industrial property rights or copyrights, the Supplier shall, at its own expense, procure the right to further use for the Purchaser or modify the delivery item in a manner acceptable to the Purchaser in such a way that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer is entitled to withdraw from the contract. Under the aforementioned conditions, the supplier shall also be entitled to withdraw from the contract. In addition, the Supplier shall indemnify the Purchaser against undisputed or legally enforceable claims of the respective proprietary right holders. Subject to Section 7.2, the Supplier’s obligations under Section 6.7 shall be conclusive in the event of protection or copyright infringement. They shall only exist if the Purchaser immediately notifies the Supplier of any infringement of industrial property rights or copyrights asserted, the Purchaser supports the Supplier to an appropriate extent in defending the asserted claims or supports the Supplier in implementing the modification measures in accordance with Section 6.7, the Supplier reserves the right to take all defensive measures including out-of-court settlements, the defect of title is not based on instructions from the Purchaser and the infringement of rights was not caused by the Purchaser’s unauthorised modification of the delivery item or use of it in a manner not in accordance with the contract.
If the delivery item cannot be used by the Purchaser in accordance with the contract due to the fault of the Supplier as a result of omitted or faulty execution of proposals and advice made before or after conclusion of the contract or due to the breach of other contractual ancillary obligations – in particular instructions for operation and maintenance of the delivery item – the provisions of Sections 6 and 7.2 shall apply accordingly to the exclusion of further claims by the Purchaser. The supplier shall only be liable for damages which have not occurred on the delivery item itself – for whatever legal reasons – in the event of intent, gross negligence on the part of the owner / organs or executive staff, culpable injury to life, limb and health, defects which he has maliciously concealed or the absence of which he has guaranteed, defects in the delivery item, insofar as according to the Product Liability Act for personal injury or damage to property.
In the event of culpable breach of essential contractual obligations, the Supplier 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. Further claims are excluded.
§8 Limitation period
All claims of the customer – for whatever legal reasons – shall become statute-barred after 12 months. The statutory time limits shall apply to claims for damages pursuant to Section 7.2 a-e. They shall also apply to defects in a building or to delivery items that have been used in accordance with their normal use for a building and have caused its defectiveness.
§9 Software usage
Insofar as software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The Purchaser may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§§ 69 a ff. of the German Copyright Act (UrhG)). The Purchaser undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without the Supplier’s prior express consent.
§10 Applicable law, place of jurisdiction
All legal + contractual relations between the supplier and the customer shall be governed exclusively by the relevant laws of the Federal Republic of Germany. The place of jurisdiction shall be the competent court for the supplier’s registered office. However, the Supplier shall be entitled to bring legal action at the Purchaser’s headquarters.
The validity of the Uniform Law on the Conclusion of International Sales Contracts for Movable Goods of 17.07.1973 (BGBII856-EKAG) is excluded. It is the foreign buyer’s duty of care that the delivery items are delivered in accordance with the national safety regulations. The contractual relationships shall be governed exclusively by German law (§ 10).
§12 Severability Clause
Should any agreement in this contract be or become invalid or unenforceable in whole or in part, or should it lose its legal validity or enforceability, this shall not affect the validity of its remaining agreements.
- The following conditions apply to the rental of construction machinery and equipment. The terms and conditions are not only part of an agreement with the lessee, they are also valid for all subsequent agreements with the lessee, without the need for an additional declaration.
- The renter shall be responsible for the consequences of any discrepancies arising from orders placed verbally or by telephone.
- Should individual provisions of these terms and conditions be ineffective, the remaining provisions shall remain unaffected. The legal validity of the agreement shall also remain unaffected.
- The offers of the lessor are subject to change without notice, unless expressly stated otherwise by the lessor.
- Claims for damages arising from culpability in the contract negotiations, from positive breach of a claim or from consulting contracts concluded in connection with the contract as well as from any obligation to inform about the condition, possible uses and maintenance requirements of the rented object are excluded, unless they are based on gross negligence or intent on the part of the landlord. The same applies to all possible claims against the landlord’s employees.
- Insofar as invoicing for separate work or due to special periods of use by the lessor has been agreed, the prices of the respectively valid price list shall apply.
- The basis for the calculation of rents and ancillary costs is the information in the price list, which is valid at the time of conclusion of the rental agreement and known to the tenant.
B. Delivery of the device, notification of defects and liability
- The lessor shall keep the rented object in working order ready for collection or bring it to dispatch. With the pick-up/shipment, the risk of transportation is transferred to the lessee.
- The lessee is free to inspect the equipment in good time before dispatch/pickup.
- The lessee confirms in the handover protocol the faultless condition of the rented object taken over and the extent of the accessories. Hidden defects must be reported to the lessor immediately after the rental object has been put into operation.
- The costs for remedying defects for which the lessor is responsible or which are acknowledged by him shall be borne by the lessor. The lessee shall immediately give the lessor the opportunity to remedy these defects. Upon agreement, the lessee is entitled to rectify defects himself or to have them rectified. The landlord will then only bear the costs that would have been incurred by him.
- Further claims against the lessor are excluded.
- The lessee is liable for damages which occur during the use of the rented object with him or with third parties. The landlord does not accept any liability for damages caused by the fault of the personnel, which is provided by the landlord at the request of the tenant, as far as they are not based on gross negligence or intent. These personnel are regarded as vicarious agents or vicarious agents of the lessee.
C. Calculation and payment of rent
- The rent calculation is based on a daily shift of up to eight hours from Monday to Friday. Shorter rental periods cannot be agreed upon. Longer daily use and use on Saturdays or Sundays/public holidays requires the written consent of the landlord.
- The rent is calculated by days, weeks or months. The rental price list valid at the time of conclusion of the contract shall apply, unless otherwise agreed in the contract. For longer periods of use, the tenant may ask for a lower rental price.
- All prices are to be paid plus the statutory value added tax.
- If the hirer uses the hired object for more than eight hours per day, a multi-shift surcharge of 50% on the daily rent is agreed upon. A daily rent is charged for use during the shift time on Saturday. If the object is only rented over the weekend (Saturday to Sunday), a surcharge of 50% on the daily rent is agreed upon.
- All waiting, loading and unloading times as well as any necessary times for instruction of the equipment shall be borne by the lessee. Construction and dismantling times as well as transport costs of the rented object are also to be borne by the lessee. They are not included in the rental price. The calculation of transport costs is based on the provisions of the rental price list valid at the time of conclusion of the contract. The costs for the other times spent will be settled on the basis of information on time sheets, which will be confirmed by the lessee, otherwise they will be recorded by the lessor’s representative.
- The costs for materials used (fixing material, operating materials, wear parts and spare parts etc.) will be charged separately and are to be borne by the tenant.
- If the rental prices are changed during the term of the contract, it is agreed that the landlord may demand the rental price after expiry of one month after the change on the basis of the then valid rental price list. Both contracting parties are entitled to terminate the contract until the end of this month.
- If the landlord’s invoice specifies a period determined according to the calendar, the tenant shall be in default after expiry of this period. This applies irrespective of the fact that later payment requests may follow. From the beginning of the delay, the lessee shall pay the usual bank interest on proof.
- The special agreements on the rent which deviate from the valid rental price list in favour of the tenant are designated as such and are only valid if the following conditions are met: The lessee must pay the current invoice/interim invoices within the respective statutory period and may not exceed the agreed rental period. If none of the conditions or only one condition is fulfilled, the rental prices of the rental price list valid at the time of conclusion of the contract shall be deemed to have been agreed upon from the beginning.
- The lessee assigns to the lessor in the amount of the agreed and respectively due rent the claims to which he is entitled against third parties for whom he uses the rented object. The assignment shall only be made on account of performance.
- Any offsetting against the lessor’s claim shall only be permissible if the lessee is entitled to a legally established claim against the lessor or if a claim is acknowledged by the lessor.
- In case of failure of the rented object, the lessee is entitled to a corresponding rent reduction, provided that he immediately notifies the landlord of the stoppage of use and the reasons for the failure are not the responsibility of the lessee. The lessor is entitled to repair the damage or provide a replacement device. The lessee must prove that he is not responsible for the damage that led to the failure.
- If the lessee does not pay the agreed rent, the lessor is entitled to terminate the rental agreement and demand the return of the leased object. The landlord may also terminate the contract and demand the surrender of the property if there are reasons for the lessee’s payment difficulties. In such cases, the lessee agrees to return the rented object to the lessor. The lessee has no right of retention.
- Payments made by the lessee shall first be credited against costs incurred, then against interest and then against the principal claim.
D. Start and end of the rental period and return of the device
- The rental period begins on the agreed date. The device will be issued Monday to Friday from 7.00 to 16.15 hours. The day of pick-up/shipment is deemed to be the rental day. Deviating regulations must be agreed in writing.
- The rental period can be extended. This requires written notification to the landlord and his written confirmation. The extension of the rental period can be made dependent on a payment of the rent for the previous rental period.
- The lessee is obliged to notify the lessor in good time of the intended return delivery of the leased object in advance.
- Irrespective of the rental period specified in the contract, the lessee is obliged to notify the lessor in writing of the vacancy of the rental object. The rental period ends only with the return of the rented object to the landlord or by written declaration of absence to the landlord.
- The return delivery has to be made at the times of day stated under D, section 1. It shall be deemed to have taken place when the equipment is handed over to the lessor with all parts and accessories required for commissioning or when it arrives at another – agreed place of delivery. In case of an agreed delivery to a new tenant, the rental period ends with collection or dispatch to the new tenant. However, the rental period shall be extended – also taking into account the letter D, No. 4 – if the lessee has not complied with his obligation to pay maintenance in accordance with E. No. 1 and the omitted work is made up for.
- If collection by the Lessor is agreed upon, the Lessee shall agree on the exact delivery time with the Lessor by 15.00 hrs on the day preceding the collection. In the case of long-term rental contracts – at least one month – the declaration of absence must be made at least one week before collection. If the collection cannot be carried out due to circumstances for which the lessee is responsible (e. g. no access; missing keys; no person available for handover), the rental period will be extended accordingly and the lessee shall bear the costs of a new journey.
- If the hired equipment is not picked up by the Rental Firm on the agreed date or at the agreed time, the Hirer must request collection by telephone and/or in writing without delay. The rental period lasts for this period. The duty of care until collection remains in force.
- In the event of collection by the Lessor, the rented object must be provided in a transportable condition; otherwise, the required construction site times will be charged separately. The current price list is valid for these times
E. Obligation of the tenant to pay maintenance
- The tenant is obliged,
a) to protect the rented equipment against overloading in any way.
b) to ensure that the equipment is properly and professionally maintained and to keep it in working order during the rental period. The lessee shall commission the lessor to carry out the necessary periodic inspections; the costs shall be borne by the lessee.
c) to have the necessary repair work carried out immediately and professionally using original or equivalent spare parts at his own expense, unless the lessee and his assistants have demonstrably taken all due care.
d) to return the device in proper, cleaned, operational and complete condition. The goods will be taken back subject to a complete inspection of the proper condition, unless this is confirmed at the time of handover.
- If the rented object is not returned in the condition described under E., section 1. d., the lessor is entitled to repair the damage. He shall inform the lessee at the same time and give him the opportunity to carry out a check without delay. If the lessee waives an inspection, the lessor is entitled to repair the damage and to charge the lessee the corresponding costs. The lessee must prove that he is not responsible for the damage caused.
- If the landlord incurs further demonstrable damage, the lessee shall also compensate the landlord. If repair of the rented object is not possible, the lessee is obliged to pay the new purchase price.
- The necessary spare parts are to be obtained from the lessor. If the Rental Firm does not immediately declare that it can procure the required spare parts within the same period and at the same cost as the Hirer, the Hirer shall be entitled to procure the spare parts himself.
- The landlord is entitled to demand at any time information about the location and the type of use of the rented object from the tenant. He may have the rented property inspected at any time. The lessee is obliged to permit the investigation and to allow access to the place of use or to provide a necessary permission from third parties.
- The hirer is obliged to take precautions and protective measures to ensure that the hired equipment is not exposed to the access of unauthorized third parties.
- The hirer is obliged to take precautions and protective measures to ensure that the hired equipment is not exposed to the access of unauthorized third parties
F. Obligations of the lessee in special cases
- The use of the rented object outside of Germany is only allowed after written permission of the lessor.
- The lessee may not sublet the rented object or pass it on to third parties without the permission of the landlord. The assignment of the rights arising from the contract shall require the Lessor’s consent as well as the granting of rights of any kind to the leased object.
- In the event that third parties assert rights in the form of seizures or other rights to the rented object, the lessee is obliged to inform the lessor immediately and to inform the third party of the existing rental agreement.
- In case of breach of the aforementioned obligations, the lessee shall be liable to pay compensation for any damages incurred by the lessor.
G. Loss of the rental object
- Loss or damage of rented objects must be reported immediately by the lessee to the lessor. In case of major damage or theft, a report must be made to the police.
- In the event of loss of the rented object, the lessee shall pay equivalent compensation. This also applies if the loss is caused by force majeure. The landlord can demand compensation in cash, whereby the amount of the compensation is calculated according to the procurement costs for an equivalent object.
- 75% of the agreed rent has to be paid until receipt of the full value replacement service.
H. Other provisions
- The lessor does not insure the rented object. If the lessee wishes to take out an insurance policy, this must be agreed in writing and insurance premiums are to be borne by the lessee.
- The lessor can demand that the hirer insures the hired object against damages of any kind.
- The supplementary terms and conditions apply to the rental of large equipment, work platforms, WC cabins, construction site security equipment and mobile buildings/containers.
- Upon conclusion of an insurance contract, the lessee assigns his rights against the insurer to the lessor as security for his claim and notifies the insurer of the assignment. The landlord accepts the assignment and declares that he will only assert claims in the amount of his claim against the tenant.
- Winter regulations must be agreed separately before the beginning of the rental period. If the unit is also used for work that can be carried out during frost, there is no winter control.
- The place of performance and jurisdiction for all disputes arising from the contract between the parties to the contract, insofar as the lessee is a registered trader, a legal entity under public law or a special fund under public law, is the registered office of the lessor.
I. Rental with drivers
- The provision of operating personnel and drivers shall not relieve the Hirer of his obligations under letter E.
- If the driver is absent, absent or ill, the renter is entitled to a corresponding reduction in rental costs. Further claims are excluded unless they are based on gross negligence or intent.