WIRTGEN GmbH General Terms and Conditions of Sale and Supply
1. Scope of application
1.1 All offers, sales, deliveries and services of WIRTGEN GmbH (hereinafter collectively referred to as "Supplier") are solely based on these Terms and Conditions of Sale and Supply. Conflicting or deviating terms and conditions of Customers are not recognized, even if the Supplier unconditionally supplies the Customer in awareness of the Customer's conflicting or deviating terms and conditions. Deviations from these Terms and Conditions of Sale and Supply are valid only when confirmed by the Supplier in writing.
1.2 These Terms and Conditions of Sale and Supply also apply to all future transactions of the same kind with the same Customer, without specific further agreement being required.
1.3 Supplies involving installation on site are additionally subject to the Special Terms and Conditions for Supervisor Assemblies.
2. Offer and conclusion of contract
2.1 The Supplier's offers are always subject to confirmation, unless expressly otherwise stated. Cost estimates are non-binding. Unless otherwise agreed, concepts for equipment construction (also called “designed-to-order products” or “DTO Products”), first offers or cost estimates are provided free of charge. The Supplier reserves the right to charge a reasonable fee for further concepts, offers or cost estimates as well as draft works when no supply contract comes into existence.
2.2 A supply contract comes into existence only upon written confirmation of the Supplier. Any changes, amendments or side agreements also require written confirmation of the Supplier.
2.3 The documents relating to the offer, including but not limited to illustrations, drawings, details on weight and measurements, or prepared concepts are approximations only, unless being expressly marked as binding.
2.4 The Supplier reserves all ownership and copyrights to illustrations, drawings, concepts, cost estimates, calculations and other documents. These must not be made available to any third party without express prior written consent of the Supplier. They are to be returned to the Supplier without undue delay on demand
(i) if no contract comes into existence, or (ii) as soon as the order has been fully executed.
3. Purchase Price and Payment
3.1 Unless otherwise agreed, the Supplier's prices apply without packaging and unloaded "ex works". The Customer bears additional costs particularly for the assembly and start-up as well as costs for obtaining of special, regular authorizations and regular requirements.
In addition, the statutory value added tax as applicable is charged.
3.2 Unless otherwise agreed, payments are due in full, free of costs for the Supplier, and have to be effected as follows:
DTO Products: as specified in a separately agreed payment scheme. Components: Before delivery, net. Machines: Before delivery, net. Spare parts: Before delivery, net. Other items: Within 14 days of the date of invoice, net.
3.3 Bills of exchange or cheques are always accepted only on account of performance. All discount and bill charges are to be borne by the Customer.
3.4 For payments by letter of credit, the regulations issued by the ICC on "Uniform Customs and Practice for Documentary Credits" shall apply in the applicable version as amended from time to time.
3.5 The Customer is not entitled to set-off, retention or reduction, unless its counterclaims are either not disputed by the Supplier or have been established by final and non-appealable judgment. The same applies also in the case of an assertion of claims based on liability for defects.
3.6 If the Customer defaults on payment, the Supplier shall be entitled to claim default interest. The default interest rate for the year amounts to eight (8) percentage points above the base rate. The base rate changes per each 1 January and 1 July of a year by the percentage points by which the reference base has increased or been reduced since the last change of the base rate. The reference base is the interest rate for the most recent principal refinancing transaction of the European Central Bank before the first calendar day of the relevant half year. The Supplier may assert higher default damage when providing proof. However, the Customer is entitled to prove that the damage incurred as a result of the default in payment was lower.
3.7 If the Supplier becomes aware of circumstances that call the Customer's creditworthiness into question, then all deferred claims shall immediately fall due and be payable. Furthermore, the Supplier may in such case request advance payment or provision of security.
4.1 Dates (readiness for delivery, delivery, start of assembling or commissioning, or readiness for operation and others) as well as deadlines based on those are in each case separately agreed. The commencement and compliance with agreed periods requires that a Customer fulfils its cooperation obligations, in particular the timely provision of all materials, documents, permits, releases and tests to be provided by the Customer, the compliance with the agreed terms of payment, in particular payment of any payments agreed (cf. 3.2) or opening of a letter of credit by the Customer. If these requirements are not timely and properly fulfilled, the periods shall be reasonably extended, at least however by the time of the delay; this does not apply if the Supplier is solely responsible for the delay.
4.2 The compliance with any period is subject to the condition that the Supplier itself receives cor-rect and timely delivery from its own suppliers provided the order was placed by the Supplier in a timely and correct manner.
4.3 Unless otherwise agreed, each delivery is "ex works" resp. the construction of the DTO product shall be deemed as finished at time that time the notice of readiness for operation is issued. In the internal relationship to the Supplier, the Customer assumes the Supplier's obligations under the Packaging Ordinance (VerpackV), and shall insofar indemnify the Supplier.
4.4 The delivery period has been complied with when the delivery item has left the Supplier's plant upon its expiry, or if readiness for delivery has been notified. For DTO products, the notification of readiness for delivery shall be substituted by the notification of readiness for operation. As far as acceptance is required, the date of acceptance shall be authoritative - except in case of justified refusal of acceptance -, alternatively the notice of readiness for delivery resp. the notice of readiness for operation for DTO products.
4.5 The Supplier may at any time make partial deliveries or render partial performance.
4.6 Delays based on force majeure and based on events that significantly obstruct delivery for the supplier or make delivery impossible, e.g. war, terrorist attacks, extensive disease outbreaks like epidemics and pandemics (e.g. Ebola, measles, SARS, MERS, Covid 19, or similar serious viral diseases, cholera, etc.), including the possible establishment of containment areas, import and export restrictions, strikes, lockouts, or official orders, even if they concern suppliers or sub-suppliers of the supplier (hereinafter referred to as “Force majeure cases”), extend the agreed delivery periods by the duration of the delay in delivery or performance plus a reasonable start-up period. If delivery in Force Majeure Cases is nevertheless carried out and this results in additional costs, such as higher freight costs or storage costs due to special security measures, the scarcity of means of transport, or the interruption of a delivery that has already commenced, these costs shall be borne by the customer. The supplier will inform the customer, if possible, of the start, end, and estimated duration of the aforementioned circumstances.
4.7 The Supplier is not in default if the Supplier provides the Customer with a replacement, in compliance with the contractual delivery dates for the time until the delivery of the actual delivery item, provided that such replacement meets the Customer's technical and functional requirements in all material aspects, and the Supplier bears all costs incurred for providing the replacement.
4.8 In case of a default on the part of the Supplier, the Customer shall grant the Supplier a reasonable additional period for performing the contract.
4.9 If the Supplier is in default, even after an appropriate grace period, and the Customer as a consequence suffers any damage, the Customer shall be entitled to request lump sum default compensation. Such compensation shall amount to 0.5% for each full week of delay, but in total to maximum 5% (3% in case of a DTO Product) of the value of that part of the entire performance on the base of the net price ex works without any transport, assembling or other additional costs, which cannot be used in time or according to contract due to the delay. Any additional claim for damages based on default shall be excluded.
If in consideration of the statutory exceptions the Customer twice grants the defaulting Supplier a reasonable period for performance, and if the last period granted is not complied with, then the Customer shall be entitled to withdraw from the contract within the scope of the statutory regulations.
5. Passing of risk, transport, default of acceptance, Readiness for Operation
5.1 The risk passes to the Customer when the delivery item has been provided for collection or, in case of a DTO product, the Supplier notifies the Customer about the readiness for operation (cf. clause 4.3), also in case that partial deliveries are made or the Supplier has additionally agreed to other performance, e.g. payment of the shipping costs, or delivery and installation. Insofar as acceptance is required, it shall be authoritative for the passing of risk. It must be performed without undue delay on the date of acceptance, alternatively after the Supplier has notified the readiness for acceptance. The Customer is not entitled to refuse acceptance in the event of a minor defect. If the Customer does not declare acceptance even though no defect is given or an only minor defect exists, then acceptance shall be deemed declared after the expiry of a period of one month after notification of the readiness for acceptance, but at the latest six months after the consignment has left the plant (“ex works”). In case of the delivery and assembly of a DTO product the acceptance shall be substituted by the notification of operation.
5.2 If dispatch is delayed or omitted due to circumstances not attributable to the Supplier, the risk shall pass to the Customer as from the day of notification of readiness for delivery or acceptance resp. for operation.
5.3 Unless otherwise agreed, the delivery items are transported at the Customer's expense and risk.
5.4 At the Customer's request and expense, the Supplier will insure the consignment against risks of transport.
5.5 If the Customer is in default of acceptance or violates any other cooperation obligations, then the Supplier shall be entitled to request compensation for the damage incurred, including any additional expenses, in particular the costs incurred by the delayed acceptance of delivery resp. by the delayed start of assembling and commissioning or readiness for operation.
5.6 As far as any commercial clauses such as FOB, CFR, CIF, etc. are used, these shall be construed according to the applicable Incoterms of the ICC as amended from time to time.
6. Retention of title and other securities
6.1 The Supplier retains title to the delivery item until all of the Supplier's claims against the Customer under the business relationship, including any future claims, also from simultaneously or later concluded contracts, have been settled. This also applies if individual or all claims of the Supplier were taken into current account and the balance has been drawn up and acknowledged. In the event of any breach of contract on the part of the Customer, in particular in the event of default in payment, the Supplier shall after reminder be entitled to take back the delivery item with simultaneous declaration of withdrawal, and the Customer shall be obliged to surrender such item.
6.2 The Customer is entitled to dispose of the delivery items in the ordinary course of business if and for as long as the conditions on securing the Supplier's claims against the Customer as set forth in clauses 6.3, 6.4 and 6.5 have been fulfilled. Any breach of the obligation stipulated in the foregoing sentence entitles the Supplier to immediate termination of the entire business relationship with the Customer.
6.3 It is hereby agreed between the Supplier and the Customer that upon the conclusion of a supply contract all claims of the Customer under the future resale or letting of the delivered items to a third party or on any other legal ground (insurance, tort, etc.) shall pass to the Supplier for securing all claims of the Supplier under the business relationship with the Customer. Insofar, the Customer already here and now fully assigns to the Supplier all and any claims including ancillary rights to which the Customer is entitled under the resale or letting of the delivered items or under operation of the DTO product. The Supplier already here and now accepts such assignment. However, the Customer shall be entitled to collect the assigned claim until the Supplier requests disclosure of the assignment. The Customer is prohibited from again assigning the claims already assigned to the Supplier. The Customer is obliged to transfer title or any other right to any items, machinery parts, components and used machines of any kind accepted in lieu of payment within the scope of the resale to the Supplier at the very moment when the Customer acquires title or other rights thereto. The Customer shall without charge store, carefully treat and reasonably insure the aforementioned items on behalf of the Supplier (see 6.7).
6.4 If the securities specified in clauses 6.1, 6.2 and 6.3 are not recognized or not unrestrictedly enforceable under the laws of the country in which the delivery items are located, then the Customer already here and now undertakes to cooperate in all steps required (in particular in connection with any registration or notification obligations, etc.), especially to give the necessary declarations, to enable provision of the securities in compliance with applicable law. The Supplier is entitled to retain the delivery items or to delay assembling and commissioning until the required securities have been provided with legal effect. If in consideration of the statutory requirements the provision of the securities is not locally enforceable or cannot be realised for any other reasons, the Customer al-ready here and now undertakes to offer the Supplier equivalent securities. The Customer is obliged to inform the Supplier of any form requirements or other statutory requirements that conflict with the provision of the security according to clauses 6.1, 6.2 and 6.3, without request and without undue delay upon or after the conclusion of the contract.
6.5 The processing or alteration of retained items through the Customer shall always be carried out on behalf of the Supplier. If the retained item is processed together with other items which do not belong to the Supplier, the Supplier shall acquire co-ownership in the new item in proportion of the value of the retained item to the other processed items at the time of processing.
If goods are connected or inseparably mixed by the Customer with other movable items to one unitary item, and if the other item is to be seen as main constituent, then the Customer shall transfer to the Supplier the proportionate co-ownership to the extent that the main constituent belongs to it.
The Customer holds the ownership or co-ownership in custody for the Supplier, without charge. Besides, the item created by processing or alteration is subject to the same provisions as the retained goods.
6.6 If the value of the securities provided according to clauses 6.1 to 6.5 exceeds the Supplier's claims under the business relationship with the Customer by more than 10%, the Supplier shall upon request of the Customer release any exceeding securities, at its choice.
6.7 For the event that
due to the retention of title the delivery item has not yet fully passed into the Customer's own-ership,
due to a separate agreement diverging from clause 3.2 the delivery item, or, in case of DTO Product, after acceptance is paid in part or in full only after delivery (e.g. by payment in instalments, deferment, extended term of payment agreed in advance or subsequently, etc.),
the delivery item (e.g. delivery "for trial", "for approval" or the like) or a replacement device (e.g. "as an interim measure" and the like) was provided to the Customer against payment ("under lease" or the like) or free of charge already before the conclusion of a purchase contract or for any other reason,
the Customer undertakes to take out an insurance, ex works, at replacement value, including all ancillary costs, covering all risks including fire, damage by the elements, vandalism, theft, transport, improper handling, user errors, accident, etc., and to maintain such insurance, depending on the individual case, until full transfer of title, until full payment, until return of or final takeover of the delivery item and the replacement device to the Supplier and the Customer, respectively (machinery insurance). The Customer furthermore undertakes to insure the operational risk involved in the delivered item for the same period, at its own expense (liability insurance). The Customer undertakes to submit corresponding proof to the Supplier before the provision of the delivery item, i.e. upon delivery ex works (clause 4.3). The Supplier is entitled to refuse to deliver the goods until corresponding proof has been submitted. The Supplier is furthermore entitled to insure the delivery item itself and to charge any costs on the Customer. The Customer already here and now assigns its current and future rights and claims against its insurer under the insurance relationship to the Supplier. The Supplier hereby accepts such assignment. The rights become extinct at the point of time when the goods ultimately pass into the ownership of the Customer, and the purchase price has been fully paid.
6.8 In case of attachments, seizures or other access by third parties to items or claims to which the Supplier has security rights, the Customer shall without undue delay notify the Supplier and provide support in the assertion of the Supplier's rights. The costs of any judicial or extrajudicial interventions are to be borne by the Customer, as far as no reimbursement can be obtained from the third party.
6.9 The petition for the opening of insolvency proceedings against the Customer's assets entitles the Supplier to withdraw from the contract with immediate effect and to request immediate return of the delivery item.
6.10 Clauses 6.1 sentence 3 and 6.9 apply analogously for the items, machinery parts, components and used machines of any kind which the Customer may have accepted in lieu of payment according to clause 6.3.
7. Liability for Defects
7.1 Upon existence of a defect in quality within the limitation period, which was caused already at the time risk passed, the Supplier may at its choice either remove the defect as subsequent performance or deliver a faultless item. The defect is removed either by replacement or repair of the defective item at the Supplier, unless the Parties expressly or implicitly (e.g. by uncontradicted performance on site) agree otherwise. Replaced parts pass to the ownership of the Supplier; the provisions set forth in clause 6 apply analogously.
7.2 Any assertion of claims based on liability for defects by the Customer requires that the Customer examines the delivery items for defects without undue delay, at the latest within one week of delivery and notifies the Supplier without undue delay in writing if any defect is discovered. Defects which cannot be discovered within this period even upon careful inspection have to be notified to the Supplier without undue delay after discovery. Delivery within the meaning of sentence 1 of this provision is the point in time when the Customer gains actual control over the delivery item or could have gained such control without the Customer's fault.
7.3 Changes to the construction or design made before the delivery of an ordered item within the scope of a general change in construction or production at the Supplier are not considered as defect of the delivery item as far as they do not render the delivery item unusable for the purpose intended by the Customer.
7.4 If the removal of the defect fails, the Customer will have to grant the Supplier a reasonable additional period for further subsequent improvement or replacement. If the subsequent improvement again fails, the Customer may request reduction of the purchase price by the amount by which the value of the delivery item is reduced due to the defect, or may at its choice withdraw from the contract. If only a minor defect exists, the Customer will only be entitled to reduce the contract price.
7.5 The Customer has to grant the Supplier or any third party commissioned by the Supplier the time and opportunity required for carrying out the works under its liability for defects (subsequent improvement or replacement), upon prior consultation. As far as the Supplier is obliged to remove a defect, the Customer may itself remove such defect, or have such defect removed by a third party, only if this is necessary to avert imminent dangers to operational safety or to prevent disproportion-ately high damage and if the Customer has obtained the Supplier's prior consent.
7.6 The Supplier's warranty does not extend to any consequential costs arising from the removal of the defect.
As far as a defect has been caused by a part which the Supplier purchased from a third party as sup-plier for its products, the Supplier already here and now assigns its claims under the delivery of such purchased part or under corresponding third party performance contracts to the Customer. The liability for defects is insofar limited. If the Customer does not receive any adequate compensation under the assigned right, the Supplier shall be subsidiarily liable until the expiry of the warranty period according to the regulations of these General Terms and Conditions.
7.7 Defects are not classified as defects in quality in case of
natural wear and tear;
unsuitable or improper use;
defective installation, bad civil works or start-up by the Customer or third parties;
improper, incorrect or careless treatment;
improper storage, putting up or bad building area;
ignorance of the relevant user manuals;
use of unsuitable means of operation;
use of unsuitable replacement materials and parts;
chemical, electro-chemical, electro-magnetic, electrical or comparable influences;
changes to the delivery item by the Customer (or any third party commissioned by the Customer), unless there is no causal relation between the defect in quality and the change;
installation of components and spare parts, expendable parts or other parts as well as lubricants not originating from the manufacturer (so-called OEM products) unless there is no causal relation between the defect in quality and the installed part;
lack of or improper maintenance by the Customer or third parties, as far as these are not author-ised by the manufacturer to maintain the machines or DTO Products.
7.8 As far as the scope of delivery includes software, the liability for defects does not include the removal of software errors and errors caused by improper use, user error, natural wear and tear, inadequate system environment, operational conditions other than those listed in the specifications, and insufficient maintenance.
7.9 The Customer shall without undue delay notify the Supplier of any software defects in writing and in a comprehensible and detailed form, stating all information expedient for identifying and analysing the defects. In particular, the manifestation and the consequences of the software defect need to be stated.
7.10 Claims for defects in quality and defects in title become statute-barred in 12 months. The limitation period commences upon the passing of risk according to clause 5.
7.11 The provisions contained in this clause 7 conclusively regulate the liability for defects for the items delivered by the Supplier. Any further claims of the Customer, in particular for any damage not affecting the delivery item itself, are exclusively subject to clause 8.
7.12 With regard to used machines, any liability for defects in quality is expressly excluded.
8.1 The Supplier is liable in case of wilful conduct and gross negligence, culpable injury to body, life and health, defects fraudulently undisclosed by the Supplier or defects for which the Supplier gave a quality guarantee. The Supplier has unlimited liability within the scope of product liability and based on other mandatory statutory regulations.
In the event of culpable breach of any material contractual obligations, the Supplier will also be liable in the case of simple negligence, but liability is limited to 10% of the respective order value. If this limitation is not permissible on legal grounds, liability will in the case of simple negligence be limited to damage typical for the contract and reasonably foreseeable upon conclusion of the contract. Material contractual obligations in this sense shall either mean concretely described material obligations the violation of which jeopardises the achievement of the contractual purpose, or abstractly the obligations which constitute conditions sine qua non for proper performance of the contract, and on the fulfilment of which the Customer may regularly rely.
8.2 It is pointed out to the Customer that data backup is required before the installation and continuously during the use of a software. In case of any loss of data, the Supplier will be liable only for the expense and effort required for recovery of the data when these were properly secured by the Customer.
8.3 Further liability for damages, in particular financial damage, is excluded.
Any and all liability for consequential damage, in particular lost profit, is excluded.
8.4 The foregoing limitations of liability apply in terms of cause and amount also in case of any claims for damages of the Customer against the Supplier's legal representatives, employees or vicarious agents.
8.5 The main liability limitations apply after reason and height also for the violation of contractual secondary obligations, particularly for the violation of consulting and clarification obligations before and after contract closing.
9. Rights to software / data protection
9.1 As far as the scope of delivery includes software, the Customer is granted a non-exclusive right to use the delivered software, including its documentation, for application on the relevant delivery item. Using the software in more than one system is prohibited.
9.2 The Customer must not reproduce, revise or translate the software or convert the object code into the source code, except in cases, where these measurements are exceptionally granted contractually or permitted by law. The Customer undertakes not to remove or change any manufacturer information, in particular copyright notes, without the Supplier's express prior approval.
9.3 All other rights to the software and the documentations, including copies thereof, remain with the Supplier or software provider. The granting of sub-licences or any passing on to third parties in any other form is prohibited.
9.4 The Supplier is not liable for software already installed or installed in the future (including as an upgrade or update) if the Customer uses the software improperly. Any improper handling or use is in particular given if the Customer or a third party
deletes, changes or otherwise influences any parameters of the supplied item without written consent of the Supplier, so that the functionality of the machine can be impaired;
installs a software (including as an upgrade or update) not authorised by the Supplier for the respective type of machine or DTO product acquired by the Customer; and
installs a software (including as an upgrade and update) without putting the machine completely out of operation during the entire installation, upgrade or update process, without observing the machine and continuously monitoring its behaviour, and without keeping persons at a distance. The Customer must strictly comply with these safety measures.
9.5 In addition, the limitations of liability set forth in clauses 7 and 8 apply. If a software is let only for a limited period of time, then liability shall be limited to the removal of defects according to clause 7 during the time of letting. As far as such removal fails, the Customer will in case of a fixed-time letting of a software - as far as a separate rent was charged on the software - be entitled to termination for good cause and - as far as the defect impairs the suitability of the software or the product not only insubstantially - have the right to reduce the agreed rent.
9.6 As far as the Customer has acquired a particular software within the scope of buying a machine, DTO product or components or separately (e.g. in connection with a web-based fleet management system like WITOS, etc.), the performance is subject to accessible network technologies and technical and geographical circumstances at place of operation. The Supplier does not take over any guarantee or liability for any interruptions caused by the network provider (e.g. in case of regularly required maintenance) or other limitation of telecommunication services or even shutdown of an outdated network technology (e.g. G2). In case of doubt, clauses 7.6 and 8.3 apply accordingly. In case, machine data (e.g. on ongoing operations, standby times, etc.) are stored and transmitted to the Supplier, the Supplier shall be entitled to analyse, process and without restriction use such data without charge for internal purposes, unless the Customer expressly objects. Any disclosure to third parties, e.g. for purposes of reference and comparison, shall be permissible if done in anonymous form, or if the Customer upon request expressly consents to the disclosure.
9.7 For the case that personal data are stored within the scope of installation, upgrade or update, the following shall apply:
The Supplier represents compliance with the statutory data protection regulations. In particular, as far as this is required for installing software, any provided personal data will not be disclosed to any third party; rather, such personal data will be storage, processed and used exclusively internally for performing the contract. They are deleted when no longer needed. If any statutory retention periods conflict with deletion the data shall be blocked instead of deleted in accordance with the applicable statutory regulations.
If statutory data protection regulations so require, the Customer shall prior to the conclusion of the respective contract obtain the necessary written consent of the person whose personal data are required for performing the contract.
10. Proprietary rights of third parties
10.1 The Supplier shall be liable for any infringement of third party rights by its product/service only as far as such product/service is used according to the contract. The Supplier shall be liable for infringements of third party rights only at the place of contractual use of the product/service (place of delivery). Claims for defects in title do not exist as far as only an insignificant deviation of the Supplier's product/service from the contractual quality is concerned.
10.2 If any third party asserts claims against the Customer for infringement of its rights by the Supplier's product/service, the Customer shall notify the Supplier without undue delay. The Supplier is entitled, without being obliged, to contest the asserted claims at its own expense, as far as permissible. The Customer is not entitled to acknowledge any third party claims before having given the Supplier reasonable opportunity to avert the rights of third parties otherwise.
10.3 If such claims have been asserted, the Supplier may at its own expense acquire a right of use or change the software (licence programs) or exchange it for an equivalent product or - if the Supplier cannot achieve any remedy at reasonable expense and effort - take back the product/service and reimburse the purchase price or fee paid by the Customer, with deduction of a reasonable compen-sation for use. The Customer's interests shall in this respect be adequately considered.
10.4 With regard to any claims for damages and reimbursement of expenses, clause 8 shall additionally apply.
11. Export control
11.1 Any delivery under this contract is subject to the proviso that performance does not conflict with any national or international export control regulations, for example embargoes or other sanctions. The Customer undertakes to provide all information and documents required for the export or transfer.
Delays due to export examinations or permission procedures shall set aside any time limits and delivery periods. If necessary permissions are not granted, or if the delivery and service is not capable of being permitted, the contract shall be deemed as not concluded with regard to the parts of it that are concerned.
11.2 The Supplier is entitled to terminate the contract without notice if termination on the part of the Supplier is required for compliance with national or international legal regulations.
11.3 In the event of a termination according to clause 11.2, the assertion of any claim for damages or the assertion of other rights by the Customer based on the termination shall be excluded.
11.4 The Customer must upon passing on any goods delivered by the Supplier to third parties at home and abroad comply with the relevant applicable regulations of national and international export control law.
12. Applicable law, place of jurisdiction, severability clause
12.1 The contractual relationship between the Supplier and the Customer is exclusively subject to the laws of the country in which the Supplier has its registered office. The provisions of the UN Convention on the International Sale of Goods (CISG) shall not apply.
12.2 Exclusive place of jurisdiction for all disputes arising from the contractual relationship between the Supplier and the Customer, including claims arising from bills of exchange and cheques, shall be the court competent for the Supplier's principal place of business. However, the Supplier shall at its choice also be entitled to bring legal action against the Customer at the latter's general place of jurisdiction.
12.3 Solely the German text of these Terms and Conditions of Sale and Supply shall be legally binding.
12.4 If one or several provisions or parts of any provision of these Terms and Conditions of Sale and Supply are or become invalid for any reason whatsoever, this shall not affect the validity of the remaining provisions. The Customer and the Supplier undertake to replace the invalid provisions or partial provisions by such regulations which are legally permissible and which in economic terms correspond most closely to the original regulation. This analogously applies in the event of any unintended gap.
WIRTGEN GmbH General Terms and Conditions of Purchase
I. Overriding General Terms and Conditions
All contracts between WIRTGEN GmbH (Buyer) and our Suppliers shall be exclusively subject to the following General Terms and Conditions of WIRTGEN GmbH. Any agreements between said parties, modifications and collateral agreements thereto shall only be valid if made in writing. Any reference by the Supplier to its own General Terms and Conditions shall herewith be expressly disregarded. Our terms of purchase shall apply even if we are aware of any conditions of the Supplier’s that conflict with our terms of purchase and we accept delivery of products or services by the Supplier or pay for the same. Our terms of purchase shall also apply to all future deliveries and services by the Supplier until such time as our new terms of purchase should take effect.
1. Supply contracts (orders and acceptance) and call orders as well as additions and modifications thereto must be made in writing. Orders and call orders may be effected by telecommunication.
2. If the Supplier does not accept an order within three weeks of receipt, the Buyer shall be entitled to cancel the order. Call-off orders shall become binding, at the latest, if they are not refused by the Supplier within two weeks of receipt.
3. The Buyer may demand such modifications to the construction and design of the goods as may be reasonably expected of the Supplier, in which case an appropriate mutual arrangement shall be made to allow for the consequences thereof, particularly in respect of the increased or reduced costs involved and the time allowed for delivery.
4. Cost estimates and offers of any kind shall be binding and free of charge.
1. In case of acceptance of early deliveries, the due date for payment shall be based on the originally agreed delivery date.
2. In case of defective delivery the Buyer shall be entitled to withhold payment in proportion to the value of the defective delivery until the order has been properly fulfilled.
3. Without the Buyer’s prior written consent, which may not be unfairly refused, the Supplier shall not be entitled to assign its accounts receivable from the Buyer or have third parties collect them. In case of extended reservation of title, said consent shall be deemed given.
4. Prices may not be changed without the Buyer’s consent.
5. Unless otherwise provided, payments shall be effected by the Buyer at a 3% cash discount within 14 days of receipt of the goods or net within 30 days.
6. Unless otherwise provided, all prices shall apply DDP as per Incoterms 2010 and shall include packaging. The prices shall not include VAT. The Supplier shall bear the material risk until acceptance of the goods by us or our authorized recipient at the stipulated place of delivery.
IV. Notice of defects
The Buyer must notify the Supplier of any defects immediately and in writing as soon as they are detected under the prevailing conditions in the ordinary course of business. To this extent the Supplier waives any defence based on late notification of defects.
1. Unless and until such time as it may demonstrably become public knowledge, all business or technical information to which we provide access (including features that may be gleaned from objects, documentation or software provided, and any other know-how) shall be kept secret from third parties and may only be made available to persons at the Supplier’s own facilities who must be involved in order to use such information for the purpose of supplying us and who shall be likewise enjoined to secrecy. We shall retain exclusive ownership of said information, which may not be reproduced or commercially used without our prior written consent except for the purpose of supplying us. If we so request, all information we have provided (including any copies made or records thereof) and any objects we have lent must be returned to us, immediately and in full, or destroyed. We reserve all rights to such information (including copyrights and the right to register industrial property rights, such as patents, utility models etc.). If the information has been made accessible to us by third parties, this reservation of rights shall also apply for the benefit of those third parties.
2. Products that are manufactured according to documents designed by us, such as drawings, models, forms, dies or the like, or according to our confidential information or using our tools or reproductions thereof, may not be used by the Supplier itself or offered or supplied to third parties. The same applies mutatis mutandis to our printing orders.
3. Subcontractors shall be enjoined accordingly.
4. The contracting parties may not make use of their mutual dealings for advertising purposes without the other’s prior written consent.
VI. Delivery dates and deadlines
Stipulated dates and deadlines shall be binding. All delivery dates and deadlines refer to receipt of the goods, including all necessary documents, by the Buyer. If delivery "free works" is not stipulated, the Supplier must make the goods available in good time, taking the usual time of transportation into account.
The Supplier may be required to furnish proof of having effected delivery.
The Buyer reserves the right to send back goods that are delivered too early. Additional expenses thereby incurred shall be borne by the Supplier.
VII. Delayed delivery
1. The Supplier shall be liable to the Buyer for any losses due to late delivery.
2. The amount of damages shall depend on the extent of the delay. Unless otherwise provided, 1% of the order value shall be payable in damages for each week of delay that has commenced prior to delivery.
3. The Buyer reserves the right to claim greater proven damages.
4. If we accept late delivery or performance without reservation, that shall not be deemed a renunciation of any damages to which we are entitled for late delivery or performance.
VIII. Force majeure
In the event of force majeure, industrial disputes, civil unrest, official action or other unforeseeable, unavoidable and serious occurrences, the contracting parties shall be released from their obligations of performance for the duration of the disturbance and to the extent of its impact. This shall apply even if the party affected is already in default of performance when these events occur. As far as may be reasonably expected, the parties shall immediately furnish the necessary information and adjust their obligations to the altered circumstances in good faith.
If necessary, the Supplier must furnish proof of the impact of the force majeure on the order in question.
IX. Quality and documentation
1. In respect of its delivery, the Supplier must adhere to generally accepted engineering standards, regulations regarding safety, accident prevention and protection of employees, standards of industrial medicine, the stipulated technical specifications and consumer protection regulations. Certification of conformity to CE standards must be provided upon delivery with each part supplied if so required by current law (pro tem: EC directives). China Compulsory Certification (CCC) must be submitted once by each Supplier upon first delivery of each new article added to the product range if so required by international law (at present: China National Regulatory Commission for Certification and Accreditation – CNCA). All necessary safety regulations must be furnished in writing with each shipment. Modifications may not be made to the goods without the Buyer’s prior written consent.
2. In the absence of any firm agreement between the Supplier and Buyer regarding the nature, means, methods and extent of testing, the Buyer is prepared, at the Supplier’s request, to discuss the testing with the latter, to the extent of its know-how and capabilities, in order to determine the level of testing technology that needs to be applied to the goods in question.
3. With regard to the technical documentation, moreover, the Supplier must keep separate records as to when, in what manner and by whom the goods have been tested for the features requiring documentation and as to the results of the required quality tests. The test records must be kept for 10 years and submitted to the Buyer if required. The Supplier must make the same requirements of its own suppliers to the extent provided by law.
4. If the authorities should order an inspection of the Buyer’s production sequences and its test records to check for conformity to certain requirements, the Supplier agrees, if so requested by the Buyer, to accord the authorities the same rights in its facilities and to provide all reasonable assistance.
5. The Supplier takes all necessary measures to ensure safety within the supply chain during the production, warehousing, loading and transport. This includes especially, but not limited to, safeguarding of the business promises, protection of the goods against unauthorized access and employment of trusty personnel.
1. Acceptance of delivery shall be subject to reservation as to the results of an inspection to ensure that the shipment is free from defects and, in particular, accurate, complete and serviceable.
2. Unless otherwise provided hereinafter, the provisions of law regarding material defects and defects of title shall apply.
3. As a rule, in case of defective delivery the Buyer shall be entitled to demand subsequent performance in the form of its choice. The Supplier shall be entitled to reject our choice of subsequent performance in cases meeting the requirements of German Civil Code (BGB) Section 439(3).
4. If the Supplier does not begin remedying the defects immediately upon receipt of our request to do so, we shall be entitled in cases of urgency, particularly to avert imminent dangers or greater losses or damage, to remedy the defects ourselves or through third parties at the Supplier’s expense. Claims for material defects shall become statute-barred 24 months after commissioning of the goods or installation of the spare parts in question or, at the latest, 30 months after delivery to the Buyer unless the goods have been utilized for a construction in accordance with their customary use and have caused the defectiveness thereof.
5. In case of defects of title, moreover, the Supplier shall indemnify us against any existing third-party claims. Claims for defects of title shall become statute-barred after 10 years.
6. For parts of the goods supplied that are repaired during the period of limitation for our claims for defects, the period of limitation shall begin to run anew from the point at which the Supplier has satisfied in full our claims for subsequent performance.
7. The Supplier shall bear any expenses we incur due to defective delivery of the contractual goods, particularly costs of shipping and transport, labour, materials or a more extensive than usual inspection of the incoming goods.
8. If, due to defects in the contractual goods supplied by the Supplier, we recall products we have manufactured and/or sold or if the purchase price we obtain is reduced or any other claims are asserted against us due to said defects, we reserve the right of recourse against the Supplier, in which case we need not allow the Supplier the period of time otherwise required to remedy the defects.
9. We shall be entitled to demand of the Supplier reimbursement of any expenses we have had to bear in our dealings with the customer in question because the latter has asserted a claim against us for reimbursement of expenses necessary for subsequent performance, particularly costs of shipping and transport, labour, materials and import/ export duties.
10. Notwithstanding clause X(4), our claims in cases as per clauses X(8) and X(9) shall become statute-barred not less than two months after we have satisfied the claims asserted against us by our customer, though not more than five years after delivery by the Supplier.
11. If a material defect appears within six months of the transfer of risk, it shall be presumed that the defect already existed at the time of the transfer of risk, unless this presumption is incompatible with the nature of the goods or defect in question.
12. If a sample is sent by the Supplier, the properties of the sample shall be deemed warranted. The goods delivered must be in conformity with the sample. If the goods are custom-made, e.g. based on drawings, the latter shall take precedence over the sample.
13. The Supplier shall maintain a quality assurance system, the nature and scope of which must be suitable and up to state-of-the-art standards, and shall furnish proof thereof upon request. The Supplier undertakes to satisfy in full the quality requirements specified in the supply contract in respect of the goods supplied, production methods and documentation.
14. If any claims under strict liability are raised against the Buyer under foreign law that is not subject to disposition in respect of third parties, the Supplier shall assume liability vis-à-vis the Buyer to such an extent as it would were it directly liable.
XI. Product liability and recall
1. The Supplier promises to take out public and product liability insurance with an adequate sum insured: the policy must also cover measures to remedy defects in parts, accessories or fixtures in motor or rail vehicles or watercraft if these products, when delivered by the Supplier or third parties acting on its orders, were manifestly intended for use or installation in motor or rail vehicles or watercraft. Any further claims for damages to which the Buyer is entitled shall not be thereby affected.
2. If any claims are asserted against us for infringement of official safety regulations or under German or foreign product liability rules or laws, the Supplier shall be required to indemnify us against such claims if and to the extent that the loss or damage was caused by a defect in the goods delivered by the Supplier. In cases of liability based on fault, however, this shall apply only if the Supplier is at fault. To the extent that the Supplier is responsible for the loss or damage it shall bear the burden of proof. In the foregoing cases the Supplier shall bear all costs and expenses, including the costs of any legal or recall action that the Buyer may take upon due and proper consideration of the matter. This shall also apply if public authorities oblige the Buyer to undertake a such recall action or if such a recall action is undertaken by a third party on behalf of the Buyer. Except as otherwise provided in the foregoing, the pertinent provisions of law shall apply.
XII. Execution of work
Any persons who carry out work on the company premises in performance of the contract must observe the applicable company regulations. We accept no responsibility for any accidents that occur to these persons on said premises unless they are caused by intentional or grossly negligent dereliction of duty on the part of our statutory representatives or vicarious agents.
XIII. Provision of materials
Any materials, parts, containers or special packing we provide shall remain our property and may only be used for the purposes intended. The processing of materials and assembly of parts shall be carried out for us. It is agreed that, in the ratio of the value of the materials provided to the aggregate value of the product, we shall be co-owners of the products that are manufactured using our materials and parts, which products the Supplier shall hold in safekeeping for us.
XIV. Proprietary rights
1. Provided that the goods are used in accordance with the terms of the contract, the Supplier shall be liable for any claims for infringement of proprietary rights or of applications for the same (hereinafter subsumed under the term “proprietary rights”).
2. The Supplier shall indemnify the Buyer and its customers against any and all claims resulting from the use of such proprietary rights.
3. The contracting parties undertake to notify each other immediately of any risks of infringement that should come to their knowledge and coordinate efforts to oppose any alleged claims for infringement.
4. Upon inquiry by the Buyer, the Supplier shall report the use of published and unpublished proprietary rights – of its own or licensed – in the goods and of applications for the same.
5. We shall be entitled to use any software appertaining to the products to be supplied, including the documentation for the same, to the extent permitted by law (German Copyright Act (UrhG) Sections 69a ff.) as well as to use it with the stipulated performance features and to the extent necessary for contractual use of the product. Copies may also be made for this purpose. We shall be allowed to make a backup copy even without any express agreement to that effect.
XV. Use of production materials and Buyer’s confidential information
Models, matrices, stencils, patterns, tools and other production materials as well as confidential information that are provided to the Supplier by the Buyer or paid for in full by the latter may not be used to supply third parties without the Buyer’s prior written consent.
XVI. General Non-discrimination Act (AGG)
The Supplier declares that all its employees who actually or possibly come into contact with Buyer’s employees in the course of discharging present or future contractual obligations to Buyer have been obliged to comply with the provisions of the German General Non-discrimination Act (AGG). In particular, the Supplier’s employees are aware that it is prohibited to disadvantage, generally or sexually harass the Buyer’s employees on account of their race or ethnic origin, sex, religion or ideology, age, disability or sexual identity. Should any of the Supplier’s employees violate any of the provisions of the AGG in relations with the Buyer’s employees should these employees or third parties consequently assert claims for material or non-material damage against the Buyer, the Supplier shall herewith be obliged to hold the Buyer harmless, in their internal relations, from all claims for damages including the costs of legal action.
XVII. General provisions
1. If either contracting party should stop payments or file for bankruptcy or judicial court-supervised or out-of-court composition proceedings, the other party shall be entitled to rescind the as yet unimplemented part of the contract.
2. If any provisions of these General Terms and Conditions or of other agreements made by and between the parties should be or become invalid, the validity of the rest of the contract shall not be thereby affected. The contracting parties shall be obliged to replace the invalid provision with an arrangement that comes as close as possible to it in terms of its economic effects.
3. The contractual relations between the parties shall be exclusively governed by German law to the exclusion of conflicting law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. The place of performance shall be the Buyer’s registered office. A different place of performance may be agreed for delivery.
5. The venue for any legal disputes arising directly or indirectly out of the contractual relations that are based on these terms of purchase shall be the court having jurisdiction over the Buyer’s registered head office. We shall be entitled, moreover, at our option to sue the Supplier at the court having jurisdiction over its registered office, its branch or over the place of performance.
1.1 All offers to hire machines shall be made exclusively on the basis of these General Terms and Conditions of Hire. Conflicting or deviating terms and conditions of a Lessee shall not be accepted. This shall apply even if the Lessor delivers the machine to the Lessee without restriction with knowledge of the Lessee’s conflicting or deviating terms and conditions. Deviations from these Terms and Conditions of Hire shall only be valid when confirmed by the Lessor in writing.
1.2 These Terms and Conditions of Hire shall also apply to all future transactions of the same kind with the same Lessee, without specific further agreement being required.
1.3 Services involving on-site installation are additionally subject to the Lessor’s Terms and Conditions of Repair and Installation.
2. Offer and conclusion of agreement
2.1 The Lessor’s offers are always subject to confirmation, unless expressly otherwise stated. Cost estimates are non-binding. Unless otherwise agreed, first offers or cost estimates shall be provided free of charge. The Lessor reserves the right to charge a reasonable fee for further offers or cost estimates as well as for draft works if no rental agreement comes into existence.
2.2 A rental agreement shall come into existence only upon written confirmation by the Lessor. Any changes, amendments or side agreements shall also require written confirmation by the Lessor.
2.3 The documents relating to the offer, including but not limited to illustrations, drawings, and details on weight and measurements, are approximations only, unless they are expressly marked as binding by the Lessor.
2.4 The Lessor reserves all ownership and copyrights to illustrations, drawings, cost estimates, calculations and other documents, which shall not be disclosed to any third party without the Lessor’s express prior written consent. They are to be returned to the Lessor without delay
(i) if no rental agreement comes into existence, or (ii) as soon as the rental agreement has been executed in full.
2.5 Where the Lessor lends the machine (e.g. for demonstration purposes or as an interim measure), the provisions of the rental agreement shall apply mutatis mutandis.
3. Rental period
3.1 Unless otherwise agreed, the rental period shall start upon delivery to the Lessee (see clause 8.1). If the parties have not agreed on an end date, the Lessee and the Lessor shall agree on a basic rental period on a daily, weekly or monthly basis starting on the delivery or on the agreed date. Unless otherwise agreed, the basic rental period shall be one month.
3.2 In the event the machine has not been returned to the Lessor after expiry of the basic rental period, the rental agreement shall be extended automatically by a period which corresponds to the basic rental period, unless such agreement is terminated in good time before expiry of the basic rental period or any subsequently extended rental period. Notice of termination shall be deemed to have been given in good time if it is received by the Lessor not later than three working days before the end of the rental period if the basic rental period has been agreed on a daily basis, not later than one week before the end of the rental period if the basic rental period has been agreed on a weekly basis, and not later than one month before the end of the rental period if the basic rental period has been agreed on a monthly basis.
3.3 Notice of termination must be given in writing without the necessity to specify reasons.
3.4 At the end of the rental relationship, the Lessee must promptly return the machine in a proper condition, e.g. in particular clean and workable. The machine is to be returned completely, e.g. including all add-ons and components, cleaned and undamaged.
3.5 Any defects in or damage to the machine which go beyond normal wear and tear, and/or have arisen through incorrect use, shall be the responsibility of the Lessee.
3.6 In the event the Lessee continues to use the machine after termination of the agreement by giving notice of termination, the rental relationship shall not be regarded as having been extended. A tacit extension of the rental relationship shall not apply. If the Lessee fails to return the machine at the end of the rental relationship, the Lessor may request the agreed rent for the duration of the failure to return as compensation or, in case no rent was agreed, at a usual market rental rate. The Lessee waives any right of retention for whatever reason.
3.7 If the Lessee defaults on payment, the Lessor shall be entitled to claim default interest. The default interest rate per annum amounts to eight percentage points above the basic rate. The basic rate changes every 1st January and 1st July of a year by the percentage by which the reference basic rate has increased or decreased since the last change in the basic rate. The reference base is the interest rate for the most recent principal financing transaction of the European Central Bank before the first calendar day of the relevant half year. The Lessor may assert higher default damage if proof is provided. However, the Lessee is entitled to prove that the damage incurred as a result of the default in payment was lower.
3.8 If the Lessor becomes aware of circumstances that call the Lessee’s creditworthiness into question, then all deferred claims shall immediately fall due for payment. Furthermore, the Lessor may in such case request advance payment or the provision of security.
4. Rent and payment of rent
4.1 The rent shall be charged according to depending on the basic rental period agreed (clause 3.1), i.e. per day, week or month. The calculation of the rent is based on the normal monthly working hours, i.e. a maximum of 8 hours of use per day. If, on this basis, the calculated period of use is expected to be exceeded or is actually exceeded by more than 5%, the Lessor may adjust the rent according to the expected or actual period of use. The Lessee shall notify the Lessor without delay of the actual or expected additional use of the machine.
4.2 The rental price does not include the statutory value added tax. The parties endeavour to avoid any unnecessary expenses or infringements of tax or customs regulations. The Lessee is therefore obliged to provide all requisite information where necessary. The parties will strive in all cases where legally permissible to ensure that the Lessor receives the full rent without any deduction whatsoever. Charges, taxes or customs duties shall be borne by the Lessee.
4.3 The rent does not cover wear and tear of wearing parts. The Lessor is entitled to charge the Lessee the costs for wear and tear in accordance with the use of the machine.
The calculation of the costs for wear and tear of wearing parts shall be based on the data on wear and tear set out in checklists or comparable records providing information on the condition of the machine. The costs shall be calculated as a percentage, depending on the current selling price of the respective wearing parts plus any work time which may be incurred. Other costs for the operation and repair of the machine during the rental period shall be borne by the Lessee.
4.4 The Lessor shall issue rent invoices. The Lessor is entitled to issue partial invoices during the basic rental period. If the basic rental period has been agreed for days or weeks, the Lessor is entitled to invoice at weekly intervals. If the basic rental period is in weeks or months, the Lessor may issue partial invoices at monthly intervals. The amount of the partial invoices shall be determined proportionately.
4.5 The Lessor is entitled to request advance payments. If the Lessor requests an advance payment before delivering the machine for duration of the basic rental period, the Lessor may refuse to surrender the machine until receipt of the advance payment has been received.
4.6 The rent shall be payable, without any deduction, not later than 8 days from the date of invoice.
4.7 The Lessee shall not be entitled to offset, withhold or reduce the rent, unless any counterclaims are either not disputed by the Lessor or have been established by final and non-appealable judgement. The same shall apply in the case of an assertion of warranty claims.
4.8 Any fees under public law, premiums and other charges levied during the agreement due to the rent, possession or use of the machine, shall be borne by the Lessee. This shall also apply to investigations ordered by authorities. If any such claims are asserted against the Lessor or if the Lessor is required to make advance payments, the Lessee is obliged to reimburse the costs to the Lessor.
4.9 Delays in the delivery of the machine due to force majeure or other events which substantially impede or prevent delivery by the Lessor, such as war, terrorist attacks, import and export restrictions, strike, lockout or orders made by the authorities, even if they relate to the suppliers or sub-suppliers of the Lessor, shall not entitle the Lessee to terminate the rental agreement unless otherwise agreed. If possible, the Lessor shall inform the Lessee about the start, end and expected duration of the aforementioned circumstances.
4.10 The Lessor is not in default if the Lessor provides the Lessee with a replacement, in compliance with the agreed delivery date, for the time until the delivery of the actual machine, provided that such replacement meets the Lessee’s technical and functional requirements in all material respects, and the Lessor bears all costs incurred for providing the replacement.
4.11 If the Lessor is in default and the Lessee suffers any damage as a consequence, the Lessee shall be entitled to request lump sum default compensation. Such compensation shall amount to 0.5 % of the value of that part of the entire delivery which cannot be used in time or according to the agreement due to the delay for each full week of delay, up to a maximum of 5 % of such value in total. Any additional claim for damages based on default shall be excluded.
5. Duties of the Lessee
5.1 The Lessee is obliged:
to protect the machine from overuse of any kind and to ensure its correct use, particularly by trained personnel;
to have the machine serviced and maintained at the Lessee’s expense and at regular intervals either by the Lessor or by a third party commissioned by the Lessor;
to follow the service, maintenance, and operating instructions of the Lessor and/or of the manufacturer of the machine;
to ensure that inspections are carried out by the Lessor or by a third party commissioned by the Lessor at regular intervals as specified by the manufacturer (for example in a machine service record) at the Lessee’s expense;
to ensure the machine's operability for the duration of the rental period by having the necessary repair work done by the Lessor or a third party commissioned by the Lessor in a due and proper manner using original spare parts at the Lessee’s expense – this provision applies to wearing parts accordingly - and
to observe and comply with all laws and regulations in connection with the possession, use or maintenance of the machine.
The Lessee shall indemnify the Lessor against any third party claims that may arise from culpable non-compliance with these duties.
5.2 Upon request, the Lessee shall grant the Lessor or the Lessor’s agents access to the machine at any time during normal working hours and upon prior agreement in order to check the use and operability of the machine. Any costs that are directly or indirectly incurred by either party in this connection shall be borne by such party itself.
6.1 The Lessee may only sub-let the machine to a third party, assign rights under this Agreement or grant rights to the machine of any kind with the Lessor’s prior written consent.
6.2 The Lessee shall be responsible for any fault of a third party which it authorised to use the machine to the same extent as for its own faults and shall accept such fault.
6.3 The Sub-lessee shall be advised that it may acquire the machine only with the consent of the owner (Lessor). On signing the sublease agreement, the Sub-lessee shall confirm in writing knowledge of the ownership relationships and requirements of consent by the Lessor for any intended acquisition of the machine. The Lessee shall immediately notify the Lessor in case of the termination of the sublease.
7. Pledging of the machine or similar
7.1 In the event of acts of authorities, confiscations, pledges or similar, irrespective of whether they are initiated at the instigation of an authority or of a private person, the Lessee shall immediately inform the authority or other party about the ownership relationships verbally and in writing and also notify the Lessor without delay, providing all necessary documents.
7.2 The Lessee shall immediately notify the Lessor if a compulsory sale or compulsory administration is filed with respect to the property on which the machine is located.
7.3 The Lessee shall bear the costs for any measures to rectify any such interventions.
8. Transfer of risk
8.1 The delivery shall be made on the date of the contractually agreed delivery or on the date of the actual delivery, whichever comes first. When the machine is delivered, a checklist or a handover document shall be prepared in order to determine the condition of the machine. The Lessee undertakes to cooperate in preparing and completing the documents on delivery. For this purpose, the Lessee or an authorized employee or a third party shall be present when deliveries are made. If this is not the case, the machine shall be deemed to have been handed over as recorded by the Lessor.
8.2 Upon delivery, the risk of loss or damage to the machine shall pass to the Lessee. Delivery shall be deemed to have been made even if the Lessee is in default of acceptance according to §293 BGB (German Civil Code).
The place of delivery (place of performance) is always the premises of the Lessor, irrespective of whether the machine is shipped by the Lessor, brought to the Lessee’s premises or its place of use by the Lessor or a third party commissioned by the Lessor or is collected by the Lessee itself or by a third party commissioned by it.
If the machine is located at a different place before the start of the rental period or transfer (for example at the premises or place of use of a previous lessee or at the manufacturer) and if it is shipped or transported from there by the Lessor or an affiliated company or by a third party commissioned by them to the Lessee for use or if the Lessee or a third party commissioned by it collects the machine at such place, this place shall be equivalent to the Lessor's premises.
8.3 The Lessee shall bear the costs of commissioning and maintenance work arising from any damage that occurs after the risk has been transferred to the Lessee. This shall also apply in the event of theft or other loss as well as destruction or significant deterioration which makes repair uneconomical. In this case, the Lessee shall reimburse the Lessor the fair value of the lost machine.
8.4 The Lessee shall cease to bear the risk as soon as the machine has been returned to the Lessor's premises due to or following the end of this Agreement (date of the actual return).
For the return of the machine, the place of delivery shall also be the Lessor’s premises, irrespective of whether the machine is shipped by the Lessee, brought to the Lessor’s premises by the Lessee or a third party commissioned by the Lessee or collected by the Lessor itself or by a third party commissioned by the Lessor.
If the Lessee ships or transfers the machine to a different place (for example to the place of use of a subsequent Lessee or to a purchaser) on prior instruction of the Lessor or if the machine is collected by the Lessor or a third party commissioned by the Lessor from the Lessee and brought to a place other than the Lessor's premises, this place shall be equivalent to the Lessor's premises.
8.5 If shipping is delayed or omitted due to circumstances not attributable to the Lessor, the risk shall pass to the Lessee as from the date of notification of readiness for shipping or acceptance.
8.6 If the Lessee is in default of delivery or infringes any other obligations to cooperate, the Lessor shall be entitled to request compensation for the damage incurred, including any additional expenses, in particular the costs incurred by the delayed acceptance of delivery.
9. Liability of the Lessee
9.1 The Lessee shall be liable for the operational risk associated with the machine.
9.2 If third parties claim damages from the Lessor or from a company affiliated with the Lessor due to personal injury or damage to property – irrespective of the legal reason – based on the operational risk associated with the rented machine the Lessee shall indemnify the Lessor within their internal relationship against all such claims and costs.
9.3 In the event of a claim of any kind whatsoever the Lessee shall be obliged to immediately notify the Lessor about the circumstances, extent and parties involved and to provide the Lessor with all requisite information.
10. Liability for defects and compensation of damages by the Lessor
For all claims for damages asserted by the Lessee which are not governed by this Agreement – irrespective of the underlying legal foundation – and in particular claims for compensation which do not relate to the machine itself, the Lessor shall be liable only:
in the case of wilful intent;
in the case of gross negligence by the Lessor's corporate organs or executive employees;
in the case of culpable injury to life, body or health;
in the case of defects which the Lessor has fraudulently concealed or the absence of which the Lessor has warranted as part of a separate guarantee; or
in the case of defects to the rented machine to the extent that the Lessor is liable under the Product Liability Act for personal injury and damage to property which is used privately.
In the case of culpable infringement of material contractual obligations, the Lessor shall also be liable for gross negligence of non-executive employees and for slight negligence, though in the latter case liability shall be limited to typical and reasonably foreseeable damage.
All further claims, in particular liability for consequential damage, shall be excluded.
11 Machine and business liability insurance
11.1 The machine and its operation must be covered by insurance.
11.2 The machine insurance may be taken out by the Lessee or by the Lessor after agreement.
In the event that the parties agree that the Lessee should insure the machine, or if the parties have not made any agreement, the Lessee shall be obliged to take out a machine insurance (including the risk of transportation) at the replacement value, including all ancillary costs, in favour of the Lessor for the duration of the rental period or for the duration of use covering all risks including fire, natural hazards, vandalism, theft, transportation etc.
The Lessee assigns its current and future rights and claims against its machine insurer arising out of the insurance policies for which it has assumed the burden of insurance here and now to the Lessor. The Lessor hereby accepts the assignment.
The insurance of the Lessor must contain the following provisions which the insurer must confirm:
The policyholder/Lessee is not authorised to dispose of the rights to which the Lessor is entitled under the insurance policy in its own name. The Lessor is solely entitled to dispose of these rights, in particular to accept compensation, even if it is not in possession of the insurance policy.
The policyholder may not cancel the insurance, may not reduce the amount of the premium and must continue it in an unaltered form unless the Lessor has agreed to a different procedure in writing and the policyholder has submitted this declaration of consent to the insurance company, which must have been effected at least one month before expiry to be valid. The Lessor is entitled but not obliged to pay the due insurance premium.
11.3 The following applies to business liability insurance:
The Lessee undertakes to insure the operating risk associated with the machine in all events at its own cost (liability insurance).
11.4 Before the machine is handed over, the Lessee shall prove - by presentation of a suitable insurance certificate or certificates - that the rented machine is covered by business liability insurance for the duration of the rental agreement and, where the Lessee has committed to taking out machine insurance, is covered by machine insurance. The requisite insurance certificate or certificates must contain all necessary details on the type, scope and duration of the respective insurance.
Failure to submit insurance certificates or the submission of incomplete insurance certificates upon the handover of the machine shall entitle the Lessor to retain the machine until such time as the requisite insurance certificates have been provided. If the Lessor does not exercise its right of retention, the Lessee shall submit to the Lessor the requisite insurance certificate(s) without delay and not later than 10 working days after handover of the rented machine. If the insurance certificate(s) are not submitted, the Lessor is entitled to take out the requisite insurance at the Lessee's expense. In the intervening time until insurance certificate(s) have been submitted or the requisite insurance policies have been taken out by the Lessor, the Lessee shall be liable – subject to clause 10 of these Terms and Conditions of Hire – for all damages, including without limitation consequential damages, arising for any reason whatsoever associated with the lack of insurance cover although such cover has been agreed.
In the event of retention, the Lessor is entitled to request the agreed rent at the beginning of the rental period.
11.5 Any deductibles due under the respective insurance policies shall be borne by the Lessee in the case of a claim, irrespective of whether the insurance was taken out by the Lessee or the Lessor.
11.6 If the rented machine has been subjected to a criminal act (theft, possibly also of spare parts, embezzlement, criminal damage to property or similar), the Lessee shall promptly file a complaint with the competent authority (public prosecutor office, police) and notify the Lessor immediately. If the return of the machine is impossible due to the criminal act (particularly in the case of theft or embezzlement), and if no insurance cover exists in whole or in part - for whatever reason -, the Lessee shall also be liable if it is without fault and shall reimburse the Lessor with the fair value of the machine at the time of theft or embezzlement. The fair value shall be equal to the amount which the Lessor must pay to purchase an equivalent machine.
12. Termination without notice
The Lessor shall be entitled to terminate the Agreement without notice if:
the Lessee defaults on a rental payment or any other specially agreed payment in whole or in part for longer than five banking days;
the Lessee fails to satisfy the obligations set out in clause 5;
the Lessee sub-lets the machine to a third party without the Lessor's prior written consent (clause 6);
the Lessee assigns rights from this Agreement to a third party or grants third parties rights to the machine, in either case without the permission of the Lessor;
the Lessee modifies the machine within the meaning of clause 13 without the consent of the Lessor; or
material circumstances become known which fundamentally call into question the Lessee's ability to fulfil the rental agreement, such as discontinuation of payments, bill protests, enforcement measures or insolvency.
13. Modifications to the machine
Modifications to the machine, in particular attaching, installing and removing parts, must not be made without the consent of the Lessor. If changes have been made with the Lessor's consent, the Lessee shall at its own expense restore the machine to its original condition at the end of the rental agreement.
14. Statute of limitations
All claims which the Lessee may have for whatever reason shall fall under the statute of limitations within twelve months. The statutory period shall apply to claims for damages set out in clause 10.
15. Rights to software / data protection
15.1 If the machine contains software, the Lessee is granted a non-exclusive right to use the delivered software, including its documentation, for application on the machine intended for this purpose. Using the software in more than one system is prohibited.
15.2 The Lessee may reproduce, revise or translate the software or convert the object code into the source code only to the extent permitted by law. The Lessee undertakes not to remove or change any manufacturer information, in particular copyright notes, without the Lessor’s express prior approval.
15.3 All other rights to the software and any related documentation, including copies thereof, shall remain with the Lessor or software provider. The granting of sub-licences or any passing-on to third parties in any other form is prohibited.
15.4 The Lessor shall not be liable for software which is already installed or will be installed in the future (including any software upgrades or updates) if the Lessee uses the software improperly. In particular, an improper handling or use is deemed to have occurred if the Lessee or a third party:
deletes, changes or otherwise influences any machine parameters of the rented machine without written consent of the Lessor, so that the functionality of the machine can be impaired;
installs software (including a software upgrade or update) not authorised by the Lessor for the respective type of machine acquired by the Lessee; or
installs software (including a software upgrade and update) authorised by the Lessor for the respective type of machine sold while the engine is running and does not observe the machine during the entire installation, upgrade or update process and fails to continuously monitor its behaviour and keep persons at a distance.
15.5 The Lessor is entitled to equip the machine with Fleet View and similar systems (e.g. WITOS or similar), which store machine data (e.g. on ongoing operations, standby times, etc.) and transmit them to the Lessor. The Lessor is entitled to analyse and process such data and use them without restrictions and without charge for internal purposes, unless the Lessee expressly objects. The data may be disclosed to third parties, e.g. for purposes of reference and comparison, if the data is anonymised or if the Lessee, upon request, expressly consents to the disclosure.
15.6 For the event that personnel data are stored within the scope of installation, upgrade or update, the following shall apply:
The Lessor ensures compliance with the statutory data protection regulations. In particular, as far as this is required for installing software, any provided personal data shall not be disclosed to any third party; rather, any such personal data shall be processed and used exclusively internally for performing the rental agreement. The data shall be deleted when no longer necessary. Should such deletion not be possible due to statutory retention periods, such data shall be blocked instead of deleted, in accordance with the applicable statutory regulations.
Where required by the statutory data protection regulations, the Lessee shall, prior to the conclusion of the respective agreement, obtain the necessary written consent of the person whose personal data are required for satisfying the Agreement.
16. Proprietary rights of third parties
16.1 The Lessor shall only be liable for infringement of third party rights resulting from the use of the machine by the Lessee in accordance with the rental agreement for the intended purpose.
16.2 If any third party asserts claims against the Lessee for infringements of its rights by the Lessee, the Lessee shall notify the Lessor without delay. The Lessor shall be entitled, without being obliged, to defend against the asserted claims at its own expense to the extent permitted by law. The Lessee is not entitled to acknowledge any third party claims before having given the Lessor reasonable opportunity to defend against third party rights by other means.
16.3 Clause 10 shall additionally apply with regard to any claims for damages and reimbursement of expenses.
17. Export control
17.1 Any delivery of the machine outside of the country in which the Lessor is domiciled shall be subject to the proviso that performance does not conflict with any national or international export control regulations, for example embargoes or other sanctions. The Lessee undertakes to provide all information and documents required for the export or transfer. Delays resulting from export controls or permission procedures shall set aside any delivery periods agreed. If necessary permissions are not granted, or if the usage cannot be approved, the rental agreement shall be deemed as not concluded with regard to the subject matter concerned.
17.2 The Lessor is entitled to terminate the rental agreement without notice if termination on the part of the Lessor is required for compliance with national or international legal regulations.
17.3 In the event of a termination under clause 17.2, the assertion of any claim for damages or the assertion of other rights by the Lessee based on the termination shall be excluded.
17.4 The Lessee is not entitled to use or sub-let the machine abroad if this is contrary to national and international export control law.
18. Applicable law, place of jurisdiction, severability clause
18.1 The contractual relationship between the Lessor and the Lessee shall be exclusively subject to the laws of the country in which the Lessor has its registered office.
18.2 Exclusive place of jurisdiction for all disputes arising from the contractual relationship between the Lessor and the Lessee, including claims arising from bills of exchange and cheques, shall be the court competent for the Lessor’s principal place of business. However, the Lessor may, at its discretion, also bring action against the Lessee at the latter’s general place of jurisdiction.
18.3 If one or several provisions or parts of any provision of these Terms and Conditions of Hire are or become invalid for any reason whatsoever, this shall not affect the validity of the remaining provisions. The Lessee and the Lessor undertake to replace the invalid provisions or partial provisions by such legally valid provisions which most closely approximate the economic intent of the invalid provisions. The same shall apply for any unintentional gaps.