一般条款 HAMM AG

HAMM AG 交货和销售的一般条款

1. 适用范围

1.1Hamm AG(以下简称“供货方”)的所有报价、销售、交货和服务仅遵守本交货和销售条款的规定。本条款不承认订货方所有与之冲突或偏离的条款。 若供货方在知道订货方的条款冲突或偏离时向订货方无条件交货,上述规定也适用。与本销售和交货条款相偏离的规定仅经过供货方书面确认后方生效。

1.2本销售和交货条款也适用于与同一订货方将来所有类似的交易,而无需任何其他特殊协议。

1.3对于与现场装配相关的交货,适用供货方现场安装主管的另外特殊规定。

2. 报价与订立合同

2.1除非另有明确说明,供货方的报价始终无约束性。成本估算不具约束力。除非另有约定,供货方免费提供设备安装方案、首次报价或成本估算。若双方未签订交货合同,供货方保留对进一步方案、报价或成本估算以及设计工作收取适当费用的权利。

2.2交货合同仅在供货方书面确认后才成立。合同的更改、添加或附加协议也需供货方的书面确认。

2.3与报价相关的文件例如插图、图纸、重量及尺寸信息和已制定方案仅标示近似值,并不具备约束力,除非另有明确规定。

2.4供货方保留插图、图纸、方案、成本估算、核算和其他文件的全部所有权和版权。该文件未经供货方事先明确书面同意,不得提供给第三方。该文件应供货方要求必须立即向之返还,若

(i)订单未成立,或
(ii)订单一旦全面执行。

3.购买价格和付款

3.1除非另有约定,供货方的价格视为已拆包且未满载的“工厂交货价”。除非另有约定,订货方应承担额外的费用,特别是用于安装和启动以及获得特别的官方许可并满足政府要求的费用。

此外,订货方还应承担法定增值税。

3.2除非另有约定,供货方应按以下方式全额免费付款:

设备: 根据另行商定的付款计划。
设备部件:交货前,净价。
机器: 交货前,净价。
备件: 交货前,净价。
其他: 发票日期后14天内,净价。

3.3汇票或支票的接受始终仅出于履约目的。所有折扣和帐单费用均由订货方承担。

3.4对于信用证付款,适用国际商会发布的有关“跟单信用证统一惯例”当前有效的版本。

3.5订货方无权抵消、保留或减少货款,除非供货方对其反诉没有异议或其反诉已经合法确立。该规定也适用对于缺陷责任索赔的主张。

3.6如果订货方延迟付款,供货方有权要求订货方支付逾期付款利息。该年度的默认利率比基本利率高八(8)个百分点。基准利率在每年的1月1日和7月1日以基准利率自上次基准变动以来产生上升或下降的百分比变化。基准是指在相关半年度的第一个日历日之前,欧洲中央银行最近的主要再融资操作的利率。如果供货方提出延迟付款造成较大损失的证明,则适用此规定。但是,订货方有权提出延迟付款造成较小损害的证明。

3.7如果供货方了解订货方信誉度可疑的情况,订货方应立即支付所有欠款。另外,在这种情况下,供货方可以要求预付款或保证金。

4.交货

4.1分别约定(交货准备、交货、安装开始、启动和运行准备等)时间及其最后期限。供货方开始和遵守约定的期限要求订货方履行其合作义务,特别是即时提供应由订货方提供的所有材料、文件、许可证、放行单、检验单,以及遵守约定的付款条件,尤其是履行约定的付款义务(参见3.2)以及开立信用证(参见3.4)。如果未能及时满足上述条件,可适当延长交货期限,但至少应在交货延迟之前延长交货期限;如果交货延迟由供货方全权负责,则此规定不适用。

4.2交货期限的遵守要求供货方正确且及时的自我交付。

4.3除非另有约定,每次交货都视为“工厂交货”,设备的生产在准备运行时视为已完成。订货方根据与供货方的内部关系,承担《包装条例》规定的义务,并在此范围内免除供货方的义务。

4.4如果交付货物已离开供货方的工厂或供货方已通知准备交货,则视为交货期予以遵守。对于设备安装,交货准备通知应替换为运行准备通知。就提货而言,除非订货方有理由拒绝提货,以提货日期或者提货准备通知,对于设备安装以运行准备通知为准。

4.5供货方有权随时履行部分交货及义务。

4.6

对于不可抗力和导致供货方实在难以交付或无法交付的事件如战争、恐怖袭击、大规模疾病爆发如瘟疫、传染病和大流行性疾病(例如埃博拉、麻疹、严重急性呼吸道综合征(SARS)、中东呼吸综合征(MERS)、新型冠状病毒性疾病(Covid 19)或类似的严重病毒性疾病、霍乱等),还包括可能设立的禁区、进出口限制、罢工、停工或官方命令而造成的延误(以下统称不可抗力情况),即使它们涉及供应商或供货方的分包商,可按交货或服务延迟的时间、包括合理的起动时间,延长约定的交货期限。但是,在不可抗力情况下进行交货所产生的额外费用,如因特殊的安全措施、运输工具的短缺或已经开始的交付中断而增加的运费或仓储费,由订货方承担。供货方应尽可能将上述情况的起始、结束和预期持续时间告知订货方。

4.7如果供货方按照合同规定的交货日期、在交付实际交付物品之前,向订货方交付了替代品,而该替代品在所有实质性方面均满足订货方的技术和功能要求,而且该替换品产生的所有成本由供货方承担,供货方则没有违约。

4.8如果供货方延迟交货,订货方应给予供货方合理的合同履行宽限期。

4.9如果供货方在合理的宽限期后仍然延迟交货,并且订货方因此蒙受损失,订货方有权要求供货方对其延迟进行一次性赔偿。每延迟一整周,赔偿为0.5%。赔偿总计不超过5%。对于设备安装,以工厂交货净值为基础,不超过其总产值的3%,但不包括由于延迟而无法按时或按合同规定使用的运输、安装或其他额外费用。由于延迟造成的其他损害赔偿均不包括。

考虑到法定例外情况,如果订货方两次授予供货方合理的履约期限,供货方未遵守最后授予的交货期限,订货方有权在法定范围内撤销合同。

5.风险转移、运输、提货延迟、运行准备

5.1如果交付物品处于待领取状态,或供货方已就设备安装通知订货方运行准备(参见4.3),而且供货方履行了部分交货或者其他义务比如承担运费或者交付安装费,风险将转移给订货方。就提货而言,风险转移以提货为准。订货方必须在提货日期或者在供货方通知订货方准备提货之后,立即提货。如果货物无重大缺陷,订货方不得拒绝提货。即使货物没有缺陷或仅有极小缺陷,订货方仍未宣布提货,在提货准备通知后一个月期限届满、但又不迟于出厂后六个月,交付物品视为已被提。对于设备交付及安装,应以运行准备通知代替提货通知。

5.2如果因供货方无法控制的情况而造成交货延迟或取消,风险自交货准备通知或提货准备通知或运行准备通知之日起转移给订货方。

5.3除非另有约定,交付货物的运输费用和风险由订货方承担。

5.4应订货方要求并由其承担费用,供货方应针对运输风险购买运输保险。

5.5如果订货方提货延迟或违反其他合作义务,供货方有权要求订货方赔偿所造成的损失,包括任何额外费用,特别是由于延迟提货或延迟安装和启动以及延迟运行设备产生的费用。

5.6如果使用FOB(船上交货)、CFR(成本和运费)、CIF(成本、保险和运费)等商业术语,必须按照国际商会制定的当前有效的国际贸易术语解释。

6.保留所有权和其他证券

6.1在供货方因业务关系对订货方提出的所有索偿,包括将来产生、同时或以后订立合同引起的索偿全部结清之前,供货方保留交付物品的所有权。如果供货方已在当前发票中提出单个或全部索偿,并且已结算并确认余额,上述规定也适用。如果订货方违反合同,特别是拖欠付款时,供货方在催款后有权收回交付物品,同时宣布撤销合同,订货方有义务交还货物。

6.2订货方有权在正常业务过程中处置交付物品,只要满足第6.3、6.4和6.5条规定的供货方对订货方的索偿条件即可。如果订货方违反上述条款规定的义务,供货方有权立即终止与订货方的整个业务关系。

6.3供货方与订货方特此达成协议,在签订交货合同后,订货方在将来转售或租赁交付货物给第三方或出于任何其他法律原因(保险、侵权等)的所有索偿权将转让给供货方,以保证供货方基于业务关系对订货方的所有索偿权。就此而言,订货方现已在此将其所有由转售、租赁交付货物或运行设备所获得的索偿权全额转让给供货方。供货方现已在此接受转让。但是,在供货方要求披露转让之前,订货方仍有权收取转让的付款。订货方不得再次转让已转让给供货方的索赔权。订货方有义务将其在转售时折价收购的物品、机器零件或部件以及各种类型的旧机器的所有权或其他权利,在其获得所有权或其他权利的那一刻,转让给供货方。订货方应为供货方免费存放上述物品,小心对待并妥善保管(参见6.7)。

6.4如果6.1、6.2和6.3条款中提到的担保在交货付物品所在国的法律体系中不被认可,或者这些担保不能完全强制执行,订货方现已有义务参与所有必要程序(尤其与任何注册或通知义务等相关的程序),特别应作出必要的意向声明以根据适用的法律制度提供担保。在必要的担保取得法律效力之前,供货方有权保留交付货物或中断安装和启动工作。如果担保根据当地法律要求不可执行或者出于其他原因不可实施,订货方现已有义务向供货方提供同等的担保。订货方有义务在合同订立之时或之后立即主动向供货方报告任何与6.1、6.2和6.3关于担保的规定相冲突的任何形式的要求和其他法律要求。

6.5对保留货物的加工或改造始终由订货方为供货方执行。如果保留货物与其他不属于供货方的其他物品一起被加工,供货方在加工中将按保留货物的价值与其他被加工物品的价值比获得新物品的共同所有权。

如果订货方将保留货物与其他可移动物品合并成为一个整体或者不可分割地混合在一起,而另一个物品被视为主要组成部分,订货方应在主要组成部分所属范围内按比例分配给供货方对物品的共同所有权。

订货方为供货方免费保管所有权或共同所有权。此外,通过加工或改造制成的物品应遵守与保留货物相同的规定。

6.6如果6.1至6.5条款提供的担保价值超出供货方基于与订货方业务关系的索偿要求的10%以上,供货方应按照订货方要求自己选择解除超额担保。

6.7在下列情况中,

  • 由于所有权的保留,交付货物的所有权尚未完全转交给订货方,
  • 根据与3.2条款不同的另外协议,交付货物的货款在交货后,或者设备安装在提货后,部分或全部支付(例如分期付款、延期付款、预先或后来约定的延长付款期限等),
  • 已在销售合同订立之前或出于其他原因有偿(如通过租赁或类似方式)或者免费向订货方提供的交付货物(如出于“试用”、“检查”或类似目的)或备用设备(如作为“临时措施”等) 。

订货方有义务在出厂时以重置价购买保险,包括所有附加费用,针对所有危险,包括火灾、财产损失、故意破坏、盗窃、运输、处理不当、操作错误、事故等。在所有权完全转移给订货方、货款全部支付、交付货物或备用设备退还给供货方或最终由订货方接收之前,订货方视具体情况,一直持有保险(机械保险)。订货方还有义务在同一时期内自费为交付货物的操作风险购买保险(责任保险)。订货方有义务在货物交付之前,即在工厂交货(参见4.3)时,向供货方提交相应证明。如果订货方没有提供相应证明,供货方有权拒绝交货。供货方还有权自行为货物购买保险,并向订货方收取费用。订货方现已将其现在和将来的权利以及基于保险关系对保险商的索赔权转让给供货方。供货方在此接受该转让。一旦货物最终成为订货方的财产并且货款已全额支付,供货方的权利即终止。

6.8如果第三方对供货方拥有担保权的物品或索偿进行扣押、没收或采取其他措施,订货方必须立即通知供货方并协助维护其权利。 除非第三方可以补偿,否则任何司法或法外干预的费用应由订货方承担。

6.9申请针对订货方资产启动破产程序的权利使供应商有权立即撤消合同并要求立即退还交付货物。

6.106.16.3和6.9条款相应适用于订货方根据6.3条款折价收购的物品、机器零件和/或部件以及各种类型的旧机器。

7.缺陷责任

7.1如果订货方在时效期内发现货物缺陷,而该缺陷在风险转移之时已经存在,供货方可以自行决定履行追加执行义务消除缺陷或交付无缺陷的物品。除非双方另有明确或默示(例如通过现场无争议执行)约定,通过更换或维修消除货物缺陷应在供货方处进行。供货方对换下的零件具有所有权,适用第6条的相应规定。

7.2订货方对缺陷提出索赔的前提是订货方立即、最迟在交货后一周内检查货物,如果发现缺陷,订货方应立即以书面形式通知供货方。对于在此期间内经过仔细检查也未能发现的缺陷,订货方必须在发现后立即以书面形式通知供货方。本条款第1句中的交货是指订货方对交付货物享有处置权或非因订货方过错本应享有处置权之时。

7.3在供货方对构造或生产进行总体变更的范围内,供货方交付订购货物之前设计或规格的更改,不视为交付货物的缺陷,除非交付货物针对订货方的使用意图变得无法使用。

7.4如果缺陷未能排除,订货方应给予供货方适当的宽限期以进一步修理或更换货物。如果修理再次失败,订货方可以要求供货方按照交付货物因缺陷而减少的价值,将购买价格降低一定数额,或者可以选择撤销合同。如果只存在轻微缺陷,订货方仅具有降低合同价格的权利。

7.5订货方必须在协商后授予供货方或由供货方委托的第三方必要的时间和机会承担缺陷担保责任(修理或提供配件)。对于供货商有义务排除的缺陷,只有在为了保障操作安全避免紧急危险或者防止造成不成比例的严重损害时,而且在订货方事先获得供货方同意下,订货方可以自行或者由第三方消除缺陷,并且由供货方承担费用。

7.6供货方的保修范围不包括由于排除缺陷而产生的后续费用。

对于供货方从第三方(其产品的供应商)购买的零件造成的缺陷,供货方现已将其通过所购零件交付或相应的第三方服务合同获得的索偿权转让给订货方。缺陷责任在此受限。如果订货方从转让的权利中未获得适当赔偿,供货方应承担责任,直到本一般条款规定的担保期限届满。

7.7以下情况不属于货物缺陷:

  • 自然磨损
  • 不当或不按操作规程使用;
  • 订货方或第三方的不正确安装、错误施工或启动;
  • 不当、错误或过失操作;
  • 不当存储、安置或不良建筑地基;
  • 违反相关操作说明;
  • 使用不合适的操作方式;
  • 使用不合适的替换材料和零件;
  • 化学、电化学、电磁、电气或类似影响;
  • 订货方(或订货方委托的第三方)对交付货物的更改,除非货物缺陷与该更改无因果关系;
  • 安装非制造商(所谓原始设备制造商产品)提供的零件和备件、易损件或其他零件以及润滑剂,除非货物缺陷与该安装的零件无因果关系;
  • 如果制造商未授权订货方或第三方对机器或设备进行维护,造成维护缺乏或不当。

7.8如果交付范围包含软件,缺陷责任不包括消除软件错误或消除由于使用不当、操作错误、自然磨损、系统环境不完备、违反规范中规定的使用条件和维护不足而引起的错误。

7.9订货方应立即以易于理解的书面方式详细报告软件缺陷,并提供对缺陷检测和分析有用的所有信息。特别应说明软件缺陷的表现形式和影响。

7.10对于质量缺陷和所有权缺陷的索赔时效为12个月。时效期限自5.1规定的风险转移开始。

7.11第7条中的规定最终规定了供货方对交付货物的缺陷责任。订货方的进一步索赔,尤其针对非交付货物本身引起的损坏索赔,仅遵守第8条规定。

7.12供货方对于旧机器不承担任何缺陷责任。

8.责任

8.1对于供货方的故意行为和重大过失、对身体、生命和健康造成的严重伤害、欺诈隐瞒或为之提供质量保证的缺陷,供货方承担责任。供应商应在产品责任范围内以及根据其他强制性法定条款承担无限责任。

如果供货方严重违反实质性合同义务,供货方也应承担简单疏忽责任,但仅限于每个订单价值的10%。如果法律规定不允许使用此限制,简单疏忽责任则限于合同中典型的、而且在合同订立时可合理预见的损害。从这个意义上讲,实质性合同义务具体而言是指该义务的违反导致合同目的不能实现,或者抽象而言是指该义务的履行才能使合同得以正确执行,并且订货方可以对该义务的遵守建立稳定的信任。

8.2订货方被指明在安装软件之前和使用软件期间应当经常进行数据备份。如有数据丢失,供货方仅在订货方对数据采取正确备份时对恢复数据所需成本承担责任。

8.3供货方不承担任何其他损害赔偿责任,尤其是经济损失。供货方不承担所有间接损失,尤其是利润损失。

8.4上述责任限制也酌情适用于订货方对供货方的法定代表及其雇员或助理以及代理人提出的任何损害赔偿要求。

8.5上述责任限制也酌情适用于对合同附随义务的违反,尤其是在订立合同之前和之后解释和咨询义务的违反。

9.软件/数据保护权

9.1若交付范围包括软件,订货方被授予非专有权利来使用被交付软件,包括用于预期交付货物的文档。禁止在多个系统上使用该软件。

9.2订货方不得复制、修改或翻译该软件,也不得将目标代码转换为源代码,除非该措施例外另有合同明确规定或法律允许。订货方有义务不删除任何制造商的信息,特别是版权声明,或未经供应商事先明确同意,对其进行修改。

9.3软件和文档及其副本的所有其他权利归供货商或软件供应商所有。不允许以任何其他形式授予分许可或转让给第三方。

9.4如果订货方使用软件不当,供货方对已安装或未来安装的软件(也作为升级或更新)概不负责。尤其当订货方或第三方有如下不当操作或使用行为:

  • 未经供货方书面同意,删除、更改或以其他方式影响交付货物参数,导致机器功能可能损坏;
  • 安装未经供货方授权用于订货方将购买或已购买的该类型机器或设备的软件(也作为升级或更新);
  • 安装软件(也作为升级或更新)以及在整个安装、升级或更新过程中没有让机器或设备完全停止运行,没有观察机器并持续监视其状态,也没有让人们与机器保持距离。订货方务必严格遵守安全措施。

9.5此外,第7条和第8条规定的责任限制也适用。对于仅为限时转让的软件,根据第7条的规定,责任仅限于在转让时间排除缺陷。若缺陷排除失败,对于限时软让的软件,订货方有权以正当理由终止,但需单独支付软件租金。若软件或产品的适用性因缺陷受到不可忽略的影响,订货方有权要求减少商定租金。

9.6如果订货方在购买机器、设备或部件的同时或另外单独(例如通过以网络为基础的车队管理系统如WITOS等)购买了特定软件,交付取决于可用的网络技术以及使用地点的技术及地理条件。对于由网络提供商造成的中断(例如网络正常运行所需的维护)、电信服务的其他限制,甚至是过时的网络技术(例如G2)的关闭,供货方均不承担任何保证或责任。如有疑问,7.6和8.3相应适用。只要订货方将机器数据或系统数据(如与正运行的操作、待机时间等相关的数据)保存并传输给供货方,供货方有权免费对该数据进行分析、处理并无限制用于内部目的,除非订货方提出明确反对。通过匿名方式或订货方应要求明确同意披露,数据允许披露给第三方,如以供参考和比较之用。

9.7对于在安装、升级或更新时个人数据的保存,适用以下规定:

供货方确保遵守数据保护法规。特别是就软件安装而言,共享的个人信息不会传递给任何第三方,而仅为履行合同目的在内部保存、处理和使用。若不再需要,该信息将被删除。如果删除信息与法定保留期限相冲突,应根据相关法律规定对数据进行封锁而非删除。

若数据保护法要求,在签订相应合同之前,订货方需要获得相关人员的必要书面同意,该人员的个人数据对于合同的履行具有必要性。

10.第三方专利权

10.1供货方仅对根据合同使用的行为承担任何因其行为侵犯第三方权利的责任。供货方仅在合同约定使用的地点(交付地点)对第三方权利的侵犯承担责任。如果供货方的服务与合同性质的只存在微小偏差,不构成由于所有权缺陷引起的索赔。

10.2如果第三方向订货方宣称供货方的表现侵犯其权利,订货方应立即通知供货方。供货方有权(但没有义务)在允许的范围内自付费用为所主张的索赔辩护。订货方在给予供货方适当机会以其他方式防止第三方权利之前,无权承认第三方的主张。

10.3如果此类索赔已提出,供货方可以自费获得使用权或更改软件(许可程序)或将其换成同等产品,或者当供货方无法以其他合理的方式对此进行补救时,供货方可撤回服务,扣除合理的使用补偿并偿还订货方支付的购买费用。以此订货方的利益予以充分考虑。

10.4对于损害赔偿和费用偿还的索赔,还适用第8条。

11.出口管制

11.1本合同项下的交付不得与任何国家或国际出口管制规定(例如禁运或其他制裁)相冲突。订货方有义务提供出口或装运所需的所有信息和文件。因出口检查或批准程序造成的延迟使交货期限和交货时间无效。如果未获得所需的批准,或者如果交付和服务不获批准,合同及其相关部分视为尚未签订。

11.2如果供货方根据国家或国际法律规定必须终止合同,供货方有权终止合同,恕不另行通知。

11.3如果根据第11.2条终止合同,不包括因合同终止而引起的损害赔偿要求或其他权利主张。

11.4如果订货方将供货方交付的货物在境内外转移给第三方,订货方应遵守国家和国际出口管制法的相应适用规定。

12.适用法律、管辖权、可分割性条款

12.1供货方与订货方之间的合同关系仅受供货方所在国法律的管辖。不包括统一的联合国国际货物销售合同公约的条款。

12.2由供货方与订货方之间的合同关系引起的所有争议(包括汇票或支票的索赔)的专属管辖权应为供货方主要营业地的法院。但是,供货方也有权选择在订货方的一般司法管辖区起诉订货方 。

12.3对于合同关系,仅德语文本的销售和交付条款具有法律约束力。

12.4如果本销售和交货条件中的一个或多个条款或条款的一部分无效或由于任何原因失效,其余条款的有效性不受影响。订货方和供货方有义务用法律上允许的、且经济上与原始规定最相符的法规代替无效的规定或部分规定。同样也适用于任何意料之外的情况。

2020年7月

下载

交货和销售的一般条款

PDF (497 KB)
General Terms and Conditions of Purchase

I. Applicable General Terms and Conditions

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.

II. Ordering

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.

III. Payment

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.

V. Confidentiality

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' favor.

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, labor 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 unauthorized access and using secure staff.

X. Warranty

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, labor 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, labor 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 obligated 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 fulfill 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 most 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.

July 2020

HAMM AG General Terms and Conditions of Hire

1. Scope

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. Subletting

6.1 The Lessee may only sublet 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 Sublessee shall be advised that it may acquire the machine only with the consent of the owner (Lessor). On signing the sublease agreement, the Sublessee 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 sublets 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 sublet 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.