General Terms and Conditions of Delivery and Sale of HAMM AG
1. Scope of application
1.1 All offers, sales, deliveries and services of Hamm AG (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 datelines 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.
Contracts between HAMM AG (Purchaser) and its suppliers shall be entered into exclusively on the basis of the following General Terms and Conditions of HAMM AG. All agreements, changes and ancillary agreements must be in writing in order to be valid. HAMM AG hereby expressly objects to any reference made by the supplier to the supplier's own General Terms and Conditions. Our Terms and Conditions of Purchase shall also apply if we accept or pay for deliveries of the supplier's products and services in full knowledge of the supplier's conflicting or differing terms and conditions. Our Terms and Conditions of Purchase shall also apply to all future deliveries and services by the supplier until our new Terms and Conditions of Purchase take effect.
1. Supply contracts (purchase orders and acceptance) and call-offs, as well as any changes and additions to them, must be in writing. Purchase orders and call-offs may also be made by data transmission.
2. If the supplier does not accept the purchase order within three weeks of receipt, the Purchaser shall be entitled to withdraw it. Call-offs shall become binding at the latest two weeks after receipt if the supplier has not objected to them by then.
3. The Purchaser may request changes to the structure and design of the goods to be delivered where reasonable for the supplier. The effects of this, particularly additional or reduced costs or effects on delivery dates, must be adequately governed by mutual agreement.
4. Cost estimates or offers of any kind shall be binding and free of charge.
1. If deliveries are accepted early, payment shall be due after the agreed delivery date.
2. If delivery is deficient, the Purchaser shall be entitled to withhold payment proportionately until delivery has been properly performed.
3. The supplier is not entitled to assign its claims against the Purchaser or have such claims collected by a third party without the prior written consent of the Purchaser, which must not be unreasonably refused. In the event of prolonged retention of ownership, this consent shall be assumed.
4. Price changes shall require the Purchaser's approval.
5. Unless otherwise agreed, the Purchaser's payments shall be made 14 days after receipt of the goods and invoice with an early-payment discount of 3% or in full 30 days net after receipt of the goods and invoice.
6. Unless specially agreed, the prices shall be assumed to be DDP (in accordance with Incoterms 2000) including packaging. VAT is not included. The supplier shall bear the risk of damage to or loss of the goods until the goods are accepted by us or our agents at the location to which the goods are to be delivered as agreed in the order.
IV. Notifications of defects
The Purchaser must notify the supplier of any defects in the delivery in writing without undue delay as soon as such defects are identified in the ordinary course of business. The supplier shall in this respect waive the right to object to delayed notification of defects.
1. All business or technical information (including features deduced from objects, documentation or software provided, and other knowledge and experience) made available by us must be kept confidential from third parties for as long as and to the extent that it is demonstrably not public knowledge and must only be made available to persons within the supplier's company who must use it for the purpose of the delivery to us and who are also committed to confidentiality; we shall remain the sole owner of such information. Such information must not be reproduced or used commercially – except for deliveries to us – without our prior written permission. All information originating from us (including any copies and recordings) and any items loaned must be returned to us or destroyed completely at our request without undue delay. We shall retain all rights to such information (including copyrights and the right to register industrial property rights such as patents, utility models, etc.). If it was made available to us by third parties, this reservation of rights shall also apply in said third parties' favour.
2. Products made on the basis of documents created by us such as drawings, models, forms, dies or the like or based on our confidential information or using our tools or reproductions thereof must not be used by the supplier itself nor offered or delivered to third parties. This shall apply, with the necessary modifications, to our print orders.
3. Subcontractors must be bound by the same obligations.
4. The contracting parties may only use their business relationship for advertising purposes with prior written consent.
VI. Delivery dates and deadlines
Agreed dates and deadlines are binding. The date of the goods' receipt, including all required documents, by the Purchaser shall be the decisive factor in determining whether the delivery date or deadline has been met. If delivery DDU/DDP is not agreed, the supplier must provide the goods on time taking into account the usual shipping time.
Where necessary the supplier shall provide evidence that delivery has been effected.
The Purchaser reserves the right to return goods delivered early. Any additional costs incurred by this shall be borne by the supplier.
VII. Delivery delay
1. The supplier shall compensate the Purchaser for damage caused by delays.
2. The amount of compensation shall be based on the extent of the delivery delay. For every week or part thereof, the compensation shall be 1% of the order value unless otherwise agreed.
3. The Purchaser reserves the right to prove the damage was greater.
4. Unconditional acceptance of delayed delivery or performance shall not constitute a waiver of our right to claim compensation due to delayed delivery or performance.
VIII. Force majeure
Force majeure, labour disputes, unrest, official measures and other unforeseeable, unavoidable, serious events shall free the contracting parties from their performance obligations for the duration of the incident and in accordance with the impact thereof. This shall also apply if these incidents occur at a time when the party concerned is in default. The contracting parties shall provide all necessary information without undue delay where feasible and shall adapt their obligations to the altered conditions in good faith.
The supplier must provide evidence of the impact of the force majeure on the order if required.
IX. Quality and documentation
1. With regard to its delivery, the supplier must comply with the accepted rules of engineering, safety regulations, accident prevention and occupational safety regulations, occupational healthcare rules and the agreed technical data and consumer protection regulations. A CE Declaration of Conformity must be appended to every part in the delivery where required under applicable law (currently EU directives). The China Compulsory Certification (CCC) must be provided once with the first delivery by every supplier for every new item incorporated into the product range, if required by international law (currently the China National Regulatory Commission for Certification and Accreditation – CNCA). All required protection provisions must be supplied. Changes to the goods to be delivered shall require the Purchaser's prior written consent.
2. If the type and scope of tests and the means and methods of testing have not been agreed specifically by the supplier and Purchaser, the Purchaser shall be prepared to discuss the tests with the supplier, on the supplier's request, within the scope of its knowledge, experience and opportunities to ascertain the required level of test technology.
3. Regarding the technical documents, the supplier must also keep special records of how, when and by whom the goods were tested in terms of the characteristics requiring mandatory documentation, as well as what results the required quality tests produced. The test documents must be stored for ten years and copies given to the Purchaser on request. The supplier must impose identical obligations on any sub-suppliers to the extent permitted by statutory provisions.
4. If authorities wish to view the production processes and the Purchaser's test documents in order to inspect specific requirements, the supplier shall be prepared to grant them the same rights and all reasonable assistance on its premises at the Purchaser's request.
5. The supplier must take all measures to guarantee supply chain security in production, storage, loading and transportation. This includes in particular securing business premises, protecting goods against unauthorised access and using secure staff.
1. Acceptance shall be conditional upon inspections to ensure the goods are free from defects and, in particular, correct, complete and proper.
2. The statutory provisions on material defects and defects of title shall apply unless stated otherwise below.
3. The Purchaser shall have the right to choose the type of remedy as a rule. The supplier shall have the right to refuse the type of remedy we choose under the requirements of Section 439(3) of the German Civil Code (BGB).
4. If the supplier does not start to eliminate the defect without undue delay following our request for defect elimination, we shall have the right in urgent cases, in particular to avert acute risk or avoid major damage, to eliminate the defect ourselves or have this done by a third party at the supplier's cost. The limitation period for claims for material defects shall be 24 months after commissioning or installation of spare parts, and no longer than 30 months after delivery to the Purchaser unless the goods have been used for a building site as per their intended purpose and caused a defect in said building site.
5. In the event of defects of title, the Supplier shall also indemnify us from any third-party claims. The limitation period for defects of title shall be ten years.
6. The limitation period for parts repaired during the limitation period for our claims for defects shall start afresh on the date on which the supplier fully meets our claims for remedy.
7. If we incur costs due to defective delivery of the contractual goods, in particular transportation, travel, labour and material costs or intake control costs exceeding the customary amount, the supplier shall bear these costs.
8. If we accept the return of products we have manufactured and/or sold due to defects in contractual goods supplied by the supplier, or if the purchase price of such products is reduced or any other claims are made against us as a result of the defects, we shall retain the right of recourse against the supplier without needing to set a deadline for our rights concerning defects.
9. We are entitled to demand compensation from the supplier for expenses we incurred in our relationship with our customer because our customer claimed compensation from us for expenses incurred in remedying defects, in particular transportation, travel, labour and material costs or import and export duties.
10. Notwithstanding Item X. 4., the limitation period in the cases specified in X. 8. and X. 9. shall begin, at the earliest, two months after the date on which we met our customer's claims, but at the latest five years after delivery by the supplier.
11. If a material defect becomes apparent within six months after the transfer of risk, it shall be assumed that the defect existed when the risk was transferred unless this assumption is inconsistent with the type of goods or defect.
12. If sampling takes place, the characteristics of the sample shall be considered guaranteed. The delivered goods must comply with the sample. If the delivered goods have been specially made, e.g. using drawings, these shall take precedence over the sample.
13. The supplier shall conduct quality control tests which are appropriate in type and scope and consistent with the latest technical standards and shall provide evidence of this on request. The supplier shall fully meet any quality requirements specified in the supply contract regarding the goods to be delivered, production methods and provision of evidence.
14. If claims are made against the Purchaser on the basis of strict liability as a result of mandatory international law applicable to third parties, the supplier shall be liable to the Purchaser to the extent it would be if it were directly liable.
XI. Product liability and recall
1. The supplier shall take out business and product liability insurance with sufficient cover, including cover for measures to remedy defects in the parts, accessories or equipment of motor, rail or water-borne vehicles where such products were clearly intended for use or installation in motor, rail or water-borne vehicles at the time of delivery by the supplier or a third party engaged by the supplier. If the Purchaser is entitled to further compensation claims, these shall not be affected.
2. In the event that claims are made against us for breach of official safety regulations or international product liability regulations or laws, the supplier shall indemnify us from such claims provided and to the extent that the damage was caused by a fault in the contractual goods delivered by the supplier. In cases of fault-based liability, this shall only apply if the supplier is at fault, however. If the cause of the damage is attributable to the supplier, the supplier shall bear the burden of proof in this respect. In the above cases, the supplier shall bear all costs and expenses, including the costs of any legal proceedings or recall campaigns that the Purchaser may undertake after carrying out a proper inspection. This shall also apply if the Purchaser is officially obliged to carry out such a recall campaign or a third party carries out the recall campaign for the Purchaser. The statutory provisions shall apply in all other respects.
XII. Performance of work
Individuals who perform work on the plant premises to fulfil the contract must comply with the provisions of the applicable plant rules. Liability for accidents involving such persons on the plant premises shall be excluded unless said accidents were caused by a deliberate or grossly negligent breach of obligations by our legal representatives or vicarious agents.
XIII. Provision by the Purchaser
Any materials, parts, containers and special packaging provided by the Purchaser shall remain our property. Said materials etc. must only be used for their intended purpose. Material processing and parts assembly shall be undertaken for us. It is agreed that we shall be co-owners of products that are produced using our materials and parts, based on the value of our materials/parts relative to the value of the total product, which the supplier shall store on our behalf.
XIV. Industrial property rights
1. The supplier shall be liable for claims arising from breaches of industrial property rights and industrial property right applications (industrial property rights) that occur from use of the delivered goods in accordance with the contract.
2. The supplier shall indemnify the Purchaser and its customers from all claims arising from the use of such industrial property rights.
3. The contracting parties must inform each other without undue delay of any infringement risks that they become aware of and shall oppose any alleged claims by mutual agreement.
4. At the Purchaser's request, the supplier shall disclose the use of published or unpublished internal or licensed industrial property rights and industrial property right applications regarding the goods.
5. We have the right to use software included in the product delivery, and its documentation, to the legally admissible extent (Sections 69a et seq. of the German Copyright Act (UrhG)) in addition to the right to use said software with the agreed performance characteristics and to the extent required in order to use the product in accordance with the contract. Copies may also be made in this respect. We may also make a backup copy without explicit agreement.
XV. Use of the Purchaser's manufacturing equipment and confidential information
Models, dies, templates, samples, tools and other manufacturing equipment, as well as confidential information, which the Purchaser makes available to the supplier or which it pays for in full must only be used for deliveries to third parties with the Purchaser's prior written consent.
XVI. General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz)
The supplier hereby declares that all of its employees who come into contact or may come into contact with the Purchaser's employees in the course of meeting current or future contractual obligations to the Purchaser are committed to compliance with the provisions of the General Equal Treatment Act. In particular, the supplier's employees are aware that any discrimination against or general or sexual harassment of the Purchaser's employees due to their race or ethnic origin, gender, religion/world view, age, a disability or sexual identity is prohibited. Should any employee of the supplier breach provisions of the General Equal Treatment Act in respect of the Purchaser's employees, and if compensation claims for material or non-material damage are made against the Purchaser by its employees or third parties as a result, the supplier shall indemnify the Purchaser from all compensation claims including the costs of legal proceedings within their internal relationship.
XVII. General provisions
1. If a contracting party suspends payments or an application for insolvency proceedings is opened into its assets or court or out-of-court insolvency proceedings are initiated, the other party shall be entitled to withdraw from the contract for the non-performed part.
2. If a provision of these Terms and Conditions and further agreements made is or becomes invalid, this shall not affect the validity of the remaining provisions of the contract. The contracting parties undertake to replace the invalid provision with a provision that mostly closely corresponds to it with regard to ensuring commercial success.
3. The contractual relationships shall be subject exclusively to German law to the exclusion of regulations on the conflict of law and the United Nations Convention on Agreements concerning the International Sale of Goods (CISG).
4. The place of performance shall be the location of the Purchaser's registered office. This may be agreed otherwise for delivery.
5. The place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships on which these Terms and Conditions of Purchase are based shall be the competent court for the location of the Purchaser's head office. We are also entitled, at our due discretion, to take legal action against the Supplier at the competent court for the location of the Supplier's registered office or branch or the place of performance.
General Terms and Conditions of Hire of HAMM AG
1. Scope of applicability
1.1 All offers to hire goods shall be subject exclusively to these General Terms and Conditions of Hire. Any conflicting or differing terms and conditions of a lessee shall not be recognised. This shall also apply if the lessor delivers the goods to the lessee unconditionally in full knowledge of the lessee's conflicting or differing terms and conditions. Deviations from these Terms and Conditions of Hire shall only be effective if confirmed in writing by the lessor.
1.2 These Terms and Conditions of Hire shall apply to all future transactions of a similar nature with the same lessee even if not agreed again explicitly.
1.3 The lessor's Repair and Installation Terms and Conditions shall also apply to services involving on-site installation.
2. Offer and formation of a contract
2.1 All offers made by the lessor are non-binding unless explicitly stated otherwise. Cost estimates are non-binding. Initial offers or cost estimates shall be provided free of charge unless otherwise agreed. The lessor reserves the right to charge an appropriate fee for additional offers or cost estimates, as well as for design work, if a hire contract is not entered into.
2.2 A hire contract shall not enter into force until the lessor has provided written confirmation. Changes, additions or ancillary agreements also require written confirmation by the lessor.
2.3 Documents included in the offer such as images, drawings, weights and dimensions are approximate guides only unless they are expressly designated as binding.
2.4 The lessor shall retain all property rights and copyrights to images, drawings, cost estimates, calculations and other documents. They must not be made available to third parties without the lessor's prior express written consent. They must be returned to the lessor without undue delay
(i) if a hire contract is not entered into or (ii) once the hire contract has been performed in full.
2.5 If the lessor temporarily lends the goods (e.g. for demonstration or bridging purposes), the provisions of the hire contract shall apply with the necessary modifications.
3. Period of hire
3.1 Unless otherwise agreed, the period of hire shall begin when the goods are delivered to the lessee (see Item 8.1). If the contracting parties have not agreed on a specific end date, the lessee and lessor shall agree a standard hire period in days, weeks or months that begins when the goods are delivered or on the agreed date. If no agreements are made, the standard hire period shall be one month.
3.2 If the hired goods are not returned to the lessor when the standard hire period ends, the hire contract shall be extended automatically by a period corresponding to the standard hire period, unless this contract is terminated in good time before the expiry of the standard hire period or a subsequent additional hire period. Notice of termination shall be given in good time if it is received by the lessor three working days (where the standard hire period is measured in days), one week (where the standard hire period is measured in weeks) or one month (where the standard hire period is measured in months) before the end of the standard hire period.
3.3 Notice of termination must be given in writing; reasons need not be specified.
3.4 Once the hire contract ends, the lessee must return the hired goods in an orderly, i.e. clean and complete, condition without undue delay. The goods must be returned in their entirety, i.e. including all additions and equipment components, in a clean, undamaged condition.
3.5 The lessee shall bear the costs incurred from any defects and damage to the hired goods going beyond normal wear and tear and/or caused by improper use.
3.6 If the lessee continues using the hired goods after the contract has been terminated, this shall not constitute an extension of the hire contract. There shall be no tacit extension of the hire contract. If the lessee fails to return the hired goods once the hire contract ends, the lessor may demand the agreed hire charge, by way of compensation, for the period in which the hired goods are withheld, or if a hire charge was not agreed, the standard local hire charge. The lessee hereby waives any right of retention – for any reason whatsoever.
3.7 If the lessee defaults on payment, the lessor shall be entitled to charge interest on arrears. The interest rate for the year shall be eight percentage points above the base rate. The base rate changes on 1st January and 1st July each year by the percentage points by which the reference variable has increased or decreased since the last change in the base rate. The reference variable is the interest rate of the European Central Bank's latest main refinancing operation before the first calendar day of the half year in question. If the lessor proves the damage caused by default was greater, it may assert a claim for this. However, the lessee is entitled to prove the damage caused by default was less.
3.8 If the lessor becomes aware of any circumstances that impair the lessee's creditworthiness, all deferred receivables must be paid immediately. In such cases, the lessor may also insist on advance payment or the rendering of security.
4. Hire charge and payment of the hire charge
4.1 The hire charge shall be calculated by days, weeks or months according to the agreed standard hire period (Item 3.1). The hire charge shall be based on the normal working hours for a month, i.e. a maximum of eight hours of use per day. If the usage time calculated on this basis is, or is likely to be, exceeded by more than 5%, the lessor may amend the hire charge in accordance with the expected or actual usage time. The lessee must notify the lessor without undue delay of any expected or actual additional use of the hired goods.
4.2 The hire charge does not include VAT. The contracting parties shall endeavour to avoid unnecessary expenses and breaches of fiscal and customs provisions. The lessee must, therefore, provide all necessary information where required. It must be ensured in any case that the lessor receives the full hire charge without deductions. Charges, taxes or customs duties shall be borne by the lessee.
4.3 The hire charge does not include the wear of wear parts. The lessor is entitled to charge the lessee for wear costs according to the use of wear parts.
The costs of wear to wear parts shall be charged based on information about wear recorded in inspection checklists or comparable records. The costs shall be calculated as a percentage based on the current selling price of the wear parts in question plus any work time incurred. Other costs for operating and repairing the hired goods during the hire period shall be borne by the lessee.
4.4 The lessor shall issue invoices for the hire charge. The lessor is entitled to issue partial invoices during the standard hire period. If the standard hire period is measured in days or weeks, the lessor is entitled to issue invoices at weekly intervals. If the standard hire period is measured in weeks or months, the lessor may issue partial invoices at monthly intervals. The amount of the partial invoices shall be calculated pro rata.
4.5 The lessor is entitled to demand advance payments. If the lessor demands an advance payment for the standard hire period before the goods are delivered, it may refuse to surrender the goods until it has received the advance payment.
4.6 The hire charge shall be payable in full no later than eight days after the invoice date.
4.7 The lessee shall not be entitled to offset, retain or reduce the hire charge unless the lessee's counterclaims are undisputed by the lessor or have been established as legally binding. This shall apply, with the necessary modifications, to the assertion of warranty claims.
4.8 Any fees, contributions or other charges payable under public law that are levied during the contract due to the hire, possession or use shall be borne by the lessee. This shall also apply to any inspections ordered by the authorities. Should claims be made against the lessor or should the lessor be required to make advance payments in such cases, the lessee must reimburse the lessor for the costs.
4.9 Delays to the delivery of the hired goods due to force majeure and events that make delivery difficult or impossible for the lessor, such as war, terrorist attacks, import and export restrictions, strikes, lockouts or official orders, including those that affect the lessor's own suppliers or subcontractors, shall not give the lessee the right to terminate the hire contract unless otherwise agreed. The lessor shall notify the lessee of the start, end and expected duration of the aforementioned circumstances where possible.
4.10 The lessor shall not be considered in default if the lessor provides the lessee with a replacement by the contractually agreed delivery date until the actual goods are delivered, provided the replacement meets the lessee's technical and functional requirements in all material respects and the lessor bears all costs for providing the replacement goods.
4.11 If the lessor is in default and this causes damage for the lessee, the lessee shall be entitled to demand lump-sum compensation. This compensation shall amount to 0.5% for each full week of the delay, but in total no more than 5% of the value for that part of the performance which cannot be used on time or in accordance with the contract as a result of the delay. No further claims for compensation due to default are permitted.
5. Obligations of the lessee
5.1 The lessee shall
not overload the hired goods in any way and ensure they are used properly, in particular by trained specialist staff;
have the hired goods serviced and maintained at regular intervals at its own cost by the lessor or a third party engaged by the lessor;
follow the maintenance, care and usage instructions of the lessor and/or manufacturer of the hired goods;
arrange for the lessor or a third party engaged by the lessor to undertake inspections at regular intervals in accordance with standard specifications (e.g. using a service record) at the lessee's cost;
arrange for the lessor or a third party engaged by the lessor to properly and professionally undertake the required repair work to maintain the hired goods, using original spare parts, throughout the hire period at the lessee's cost – this provision shall apply, with the necessary modifications, for wear parts – and
comply with and fulfil all legal and administrative provisions concerning the possession, use or maintenance of the hired goods.
The lessee shall indemnify the lessor from third-party claims arising from culpable failure to observe these obligations.
5.2 On request, the lessee shall grant the lessor or its agents access to the hired goods at any time during standard business hours by arrangement in order to inspect the use and operational readiness of the hired goods. Each party shall bear any direct or indirect costs it incurs from this.
6.1 The lessee may only sublet the hired goods to a third party, assign rights from this contract or grant rights of any kind whatsoever to the hired goods with the lessor's prior written consent.
6.2 The lessee shall be responsible for any fault of a third party it has permitted to use the hired goods to the same extent as for its own faults and shall treat said fault as its own.
6.3 The sub-lessee must be informed that it can only acquire the hired goods with the owner's (lessor's) consent. Upon signing the sublease contract, the sub-lessee shall confirm in writing that it is aware of the ownership relationships and the requirement to obtain the lessor's consent in the event of any planned acquisition of the hired goods. The lessee must notify the lessor without undue delay of the sublease contract's termination.
7. Seizure of the hired goods etc.
7.1 In the event of orders from higher authorities, confiscations, seizures or the like, regardless of whether these are instigated by an authority or a private party, the lessee shall disclose the ownership relationships verbally and in writing without undue delay and shall notify the lessor thereof without undue delay, providing all necessary documents.
7.2 The lessee must notify the lessor without undue delay if a compulsory sale or sequestration is applied for concerning the property on which the hired goods are located.
7.3 The lessee shall bear the costs for all measures to remedy such intervention.
8. Transfer of risk
8.1 The risk shall be transferred on the contractually agreed delivery date or actual delivery date, whichever occurs first. When the machine is delivered, a checklist or delivery record shall be drawn up to establish the condition of the machine. The lessee shall cooperate in the preparation of such documents when the machine is delivered. To this end, the lessee or an authorised employee or third party shall be present at the delivery. If they are not present, the delivery of the machine shall be as recorded by the lessor.
8.2 The risk of damage to and deterioration of the hired goods shall transfer to the lessee upon delivery of the hired goods. If the lessee defaults on acceptance as per Item 293 of the German Civil Code, delivery shall still be deemed to have taken place.
The delivery location (place of performance) shall always be the lessor's business premises, regardless of whether the hired goods are shipped by the lessor, delivered to the lessee's business premises or place of use by the lessor or a third party engaged by the lessor, or collected by the lessee itself or a third party engaged by the lessee.
If the hired goods are at a different location before the hire period begins or before delivery takes place (e.g. the premises or place of use of a previous lessee or the manufacturer) and are shipped or transported to the lessee from there by the lessor or an affiliated company or authorised third party, or the lessee or a third party engaged by the lessee collects the hired goods from another location, that location shall be equivalent to the lessor's business premises.
8.3 The lessee shall bear the costs of any startup and maintenance work required due to damage that occurs after the transfer of risk. This shall also apply in the event of theft or other loss or damage/substantial deterioration that makes repairs not financially viable. In such cases, the lessee must pay the lessor compensation for the fair value of the lost goods.
8.4 The lessee shall cease to bear the risk once the hired goods are returned to the lessor's business premises when or after this contract ends (actual return date).
The return location shall always be the lessor's business premises, regardless of whether the hired goods are shipped by the lessee, delivered to the lessor's business premises by the lessee or a third party engaged by the lessee or collected by the lessor itself or a third party engaged by the lessor.
If the lessee ships or transports the goods to another location (for example, the place of use of a subsequent lessee or buyer) on the lessor's instructions, or the lessor or an authorised third party collects the goods from the lessee and transports them to a location other than the lessor's business premises, this shall be equivalent to the lessor's business premises.
8.5 If shipping is delayed or does not take place due to circumstances not attributable to the lessor, the risk shall be transferred to the lessee from the date on which notice is given of readiness for shipping or acceptance.
8.6 If the lessee defaults on delivery or breaches other obligations to cooperate, the lessor shall be entitled to demand compensation for the damage it incurs including any additional expenses, in particular costs incurred due to the delivery delay.
9. Liability of the lessee
9.1 The lessee shall be liable for the operational risk associated with the hired goods.
9.2 If third parties assert compensation claims against the lessor or an affiliated company of the lessor based on personal injury or damage to property – on any legal grounds whatsoever – due to the operational risk associated with the hired goods, the lessee shall indemnify the lessor from all claims and costs within their internal relationship.
9.3 In the event of damage of any kind whatsoever, the lessee shall notify the lessor without undue delay of the course of events, extent of the damage and parties involved and provide all required information.
10. Lessor's liability for defects and compensation
The lessor shall only be liable for all compensation claims of the lessee that are not governed in this contract – irrespective of the legal grounds on which they are based –, in particular compensation for damage not relating to the hired goods themselves
in the event of malicious intent,
in the event of gross negligence by the lessor's managing board or executives,
in the event of culpable loss of life, personal injury or damage to health,
in the event of defects which the lessor maliciously conceals or which the lessor has guaranteed the absence of,
in the event of defects in the hired goods in cases where liability exists under the Product Liability Act (Produkthaftungsgesetz) for bodily injury and property damage to items used in a private context.
In the event of a culpable breach of essential contractual obligations, the lessor shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, but in the latter case limited to damage which is reasonably foreseeable and typical for this kind of contract.
Any and all further claims, in particular liability for consequential damage, shall be excluded.
11 Machine and public liability insurance
11.1 The hired goods and their operation must be insured.
11.2 Machine insurance may be taken out by the lessee or lessor by agreement.
If the contracting parties agree that the lessee is to take out the machine insurance or if the contracting parties have not reached an agreement, the lessee shall take out machine insurance (which must also cover the transportation risk) at replacement value, including all ancillary costs, against all risks including fire, natural hazards, vandalism, theft, transportation, etc. to the lessor's advantage for the duration of the hire period or provision period.
The lessee hereby assigns to the lessor its current and future rights and claims against its machine insurer under the insurance for which it has accepted the burden of insurance. The lessor hereby accepts such assignment.
The lessor's insurance must include the following provisions, which the insurer must confirm:
The policyholder/lessee shall not hold rights in its own name that are granted to the lessor under the insurance contract. The lessor alone shall be entitled to hold such rights, in particular the right to accept compensation,even if the lessor is not in possession of the insurance certificate.
The policyholder must not cancel the insurance or reduce the amount insured and must continue the insurance unchanged unless the lessor gives its written consent to a different procedure and the policyholder has submitted this declaration of consent to the insurer, which must take place at least one month before expiry in order to be valid. The lessor is entitled, but not obliged, to pay the insurance premium due.
11.3 The following shall apply to public liability insurance:
In any case, the lessee shall insure the operational risk associated with the hired goods (liability insurance) at its own cost.
11.4 Before the hired goods are delivered, the lessee shall present a suitable insurance certificate or certificates to prove that the hired goods are covered by business liability insurance and, where the lessee has undertaken to take out machine insurance, machine insurance for the term of the contract. The required insurance certificate(s) must contain all necessary information on the type, extent and duration of the insurance in question.
Any failure to provide insurance certificates in whole or part upon delivery of the hired goods shall entitle the lessor to withhold the hired goods until the outstanding insurance certificates are provided. If the lessor does not exercise its retention right, the lessee shall provide the lessor with the required insurance certificate(s) without undue delay, and at the latest within ten working days after delivery of the hired goods. If the insurance certificate(s) is/are not provided, the lessor shall be entitled to take out the required insurance at the lessee's cost. Until the insurance certificate is provided or the required insurance is taken out by the lessor at the lessee's cost, the lessee shall be liable – subject to Item 10 of these Terms and Conditions of Hire – for all damage, including consequential damage, arising for any reason whatsoever associated with the lack of agreed insurance.
In the event of retention, the lessor shall be entitled to demand payment of the agreed hire charge from the start of the hire period.
11.5 The lessee must bear any deductibles due under the insurance policies in the event of a claim, regardless of whether the insurance was taken out by the lessee or lessor.
11.6 In the event of a criminal offence relating to the hired goods (theft, including theft of individual parts, embezzlement, damage to property, etc.), the lessee must report said offence to the authority responsible (public prosecutor, police) without undue delay and notify the lessor of this without undue delay. If the hired goods cannot be recovered due to the criminal offence (in particular theft or embezzlement) and there is no insurance cover in whole or part – for any reason whatsoever –, the lessee shall be liable irrespective of which party is at fault and must pay the lessor the fair value of the hired goods at the time of the theft or embezzlement. The fair value shall be equal to the amount payable by the lessor in order to purchase equivalent goods.
12. Termination without notice
The lessor is entitled to terminate the hire contract without notice if
the lessee falls into arrears in whole or part on a lease payment or another specially agreed payment for more than five banking days,
the lessee does not meet the obligations in Item 5,
the lessee sublets the hired goods to a third party without prior written permission (Item 6),
the lessee assigns rights from this contract to a third party without permission or grants rights to the hired goods to third parties without the lessor's permission,
the lessee makes changes to the hired goods within the meaning of Item 13 without the lessor's consent,
significant circumstances become known that call into question the lessee's performance of this contract, such as suspensions of payments, protests of a bill, enforcement measures or insolvency.
13. Changes to the hired goods
Changes to the equipment, particularly attachments, installations and removals, must not be made without the lessor's consent. If changes are made with consent, the lessee must restore the goods to their original condition at its own cost when the hire contract ends.
14. Limitation period
The limitation period for all claims by the lessee – for any reason whatsoever – shall be 12 months. The statutory periods shall apply to any compensation claims in accordance with Item 10.
15. Rights to software/data protection
15.1 If the hired goods include software, the lessee shall be granted a non-exclusive right to use the software supplied including its documentation on the hired goods for which the software is intended. It is not permitted to use the software on more than one system.
15.2 The lessee may only reproduce, rework or translate the software, or convert the object code into the source code, to the extent permitted by law. The lessee shall not remove the manufacturer's information, particularly copyright notices, nor change it without the lessor's express prior consent.
15.3 All other rights to the software and documentation, including copies, shall be retained by the lessor or software vendor. The software shall not be sub-licensed nor passed on to third parties in any other form.
15.4 The lessor shall not be liable for integrated software, or software to be installed in future (including in the form of upgrades or updates) if the lessee does not use the software properly. Cases of improper use shall be, in particular, those in which the lessee or a third party
erases, changes or otherwise influences the machine parameters of the hired goods without the lessor's written consent, thereby potentially impairing the functionality of the hired goods;
installs software (including in the form of an upgrade or update) that the lessor has not authorised for the applicable machine type that the lessee has in its possession;
installs software (including in the form of an upgrade or update) that the lessor has authorised for the applicable machine type while the engine is running, or without monitoring the hired goods throughout the installation, upgrade or update process, continuously checking the goods' behaviour and keeping personnel at a safe distance.
15.5 The lessor shall be entitled to equip the hired goods with Fleet View and similar systems (e.g. WITOS). Such systems shall store machine data (e.g. on ongoing operations or standby times) and transmit it to the lessor. The lessor is entitled to analyse and process the data free of charge and to use it without limitation for internal purposes unless the lessee expressly objects to this. Data may be passed on to third parties, for example for reference and comparison purposes, provided it is in anonymised form or the lessee gives its express consent to this when requested.
15.6 If personal data is stored during an installation, upgrade or update, the following shall apply:
The lessor warrants it shall comply with data protection regulations. In particular, where personal data is disclosed for software installation purposes, it shall not be passed on to third parties and shall be processed and used internally only in order to fulfil the contract. Such data shall be erased as soon as it is no longer required. Should erasure be contrary to statutory retention periods, the data shall be blocked rather than erased in accordance with applicable statutory provisions.
Where necessary under data protection provisions, the lessee shall obtain the required written declarations of consent of the individuals whose personal data is required in order to fulfil the contract before the contract in question is concluded.
16. Third-party property rights
16.1 The lessor shall only be liable for breaches of third-party rights due to the lessee's use of the hired goods if such use was in accordance with the contract and for the intended purpose.
16.2 If a third party asserts claims against the lessee because use of the hired goods infringes the third party's rights, the lessee must notify the lessor without undue delay. The lessor shall be entitled, but not obliged, to avert the asserted claims at its own cost where admissible. The lessee shall not be entitled to recognise the third-party claims before it has given the lessor reasonable opportunity to avert the third-party rights by other means.
16.3 Item 10 shall apply additionally for compensation claims and claims for reimbursement of expenses.
17. Export control
17.1 Any provision of the hired goods outside the country in which the lessor has its registered office shall be conditional upon there being no national or international export control provisions, such as embargos or other sanctions, that conflict with the provision. The lessee undertakes to produce all information and documentation that is required for the export or shipment. Delays due to export inspections or clearance proceedings shall invalidate agreed handover dates. If required approvals are not granted or if the provision is unsuitable for approval, the contract shall be deemed not to be concluded with respect to the items concerned.
17.2 The lessor is entitled to terminate the contract without notice if necessary in order to comply with national or international statutory provisions.
17.3 In the event of termination pursuant to Item 17.2, the lessee shall not be permitted to assert compensation claims or other rights on grounds of the termination.
17.4 The lessee shall not be authorised to use or sublet the hired goods abroad if such use or sub-letting conflicts with national and international export control law.
18.1 The contractual relationship between the lessor and lessee shall be subject exclusively to the law of the country in which the lessor is domiciled.
18.2 The sole place of jurisdiction for any and all disputes arising from the contractual relationship between the lessor and lessee, including for claims from bills of exchange or cheques, shall be the court with jurisdiction in the place of the lessor's registered office. However, the lessor, at its due discretion, is entitled to take action against the lessee at the latter's general place of jurisdiction.
18.3 Should one or more provisions or part of a provision of these Terms and Conditions of Hire be or become invalid for any reason whatsoever, this shall not affect the validity of the remaining provisions. The lessee and lessor shall replace the invalid provisions or partial provisions with provisions that are legally admissible and mostly closely correspond to the economic intention of the original provision. This shall apply, with the necessary modifications, to any unintended loopholes.