General terms and conditions of the DART RENTALS GmbH concerning (state: 05.11.2007) 1. Terms and conditions, offer, conclusion of contract 1.1. The rental of attachments is based exclusively on these terms and conditions. Herewith we object differing terms and conditions from other connected companies or their contract partners. 1.2. Active rental contracts are accomplished only through the written confirmation by the Kinshofer Sales & Marketing GmbH (successive DART RENTALS). Changes and amendments of the contract as well as sub-agreements are only valid in the case of written confirmation by DART RENTALS. 2. Beginning of rental term 2.1. The rental term starts by the day, when the attachments and all for the start-up required parts have either left the DART RENTALS stock to be delivered to the customer or have been provided by DART RENTALS to be picked up by the customer - depending on the agreements with the customer. 2.2. In the case of leasing of a cluster (technical entity or more attachments), number 1 of terms and conditions is valid for each single attachment of the cluster, unless there are other written agreements. 2.3. At the moment of the beginning of the rental term according to number 2.1 of terms and conditions, the risk of coincidental loss or deterioration vests in the tenant. 2.4. DART RENTALS is authorized to provide the tenant with a functionally almost equivalent attachment for rent instead of the contractually agreed attachment. 3. Transfer of attachment, notice of defect, liability 3.1. The tenant can inspect the attachment before transfer/delivery at his cost. At the time of transfer he has to check the attachments regarding serviceability and faultless state, reprehend defects instantly and notice them in written form to DART RENTALS. 3.2. Obvious defects cannot be reprehended when there has not been a written notice of defect to DART RENTALS within three calendar days after pickup or arrival of the attachments at the destination. 3.3. In case of duly and justifiable notice of defect, DART RENTALS will rectify the defects itself or will let them be rectified by the tenant at DART RENTALS cost. In each case of rectification the rental term is extended for the time from indication of the defect to its disposal. 3.4. In case of a duly noticed defect covered by DART RENTALS, the tenant is allowed to reduce the rent proportionally for the breakdown time of the attachment. All proceeding warranty claims of the tenant, especially compensations and non- contractual pretensions are excluded, unless DART RENTALS has acted wantonly negligent. 3.5. In case DART RENTALS is delayed in preparation or delivery of the attachment, the tenant can only demand a claim of delay, if DART RENTALS has leastwise acted wantonly negligent. In this case, the tenant can give DART RENTALS an adequate respite in written form with threat of decline and after effectless termination of the respite withdraw from the contract. 3.6. Unless otherwise agreed, the tenant has to pick up the rental object at DART RENTALS at his own cost. 3.7. The tenant commits to employ the rental object intended and to follow the respective rules for accident prevention and safety at work as well as the traffic rules carefully. 4. Operational hours 4.1. Normal working hours of up to eight hours a day at up to 22 work days a month form the basis of the rent’s calculation. Hours beyond these times are considered as overtime. Overtime is to be registered at DART RENTALS monthly or at shorter rental times immediately after the termination of the rent and it has to be documented on demand. Overtime is billed additionally and according to the regular rate. 4.2. In case the operation rests on site, for which the attachment had been rented due to circumstances neither the tenant nor DART RENTALS covers for (e.g. flooding, strike etc.) at at least ten successive days, the time beginning from the 11th day is considered as time of decommission. The time of the rental contract is extended for the time of decommission. For the time of decommission the tenant has to pay the regular rate reduced by 25% in case of wanting written agreements. The reduction of the rent is only considered, if the tenant informs DART RENTALS in written form and in time about the discontinuation of the operation and its resumption. The time of decommission has to be verified in written form on demand. 5. Calculation and payment of rent 5.1. The agreed rent is quoted exclusively for the rented attachment. VAT and all extras are calculated separately. Rent and extras have to paid in advance in case of wanting written agreements, the latest however after the 3rd day of operation. The same applies to possible changes concerning the time of rent. All payments have to be made in cash basically without deduction. Allocations, checks and exchanges are only accepted after a special, written agreement and under charging all costs for collection and bank discount. Incoming payments are allocated at DART RENTALS option on the receivables (costs, interests, compensation, rent). For each reminder after default the customer has to bear the costs of EURO 10,- respectively. 5.2. In case the tenant does not pay the rent according to the agreement or comes into default by other circumstances or there is a breach of contract, especially exposure of the property of DART RENTALS, or the tenants’ financial circumstances are worsened, dismissal of payment, protest of checks or exchange etc., DART RENTALS is entitled to take away the attachment at the tenants’ cost. Hereunto the tenant has to enable the access and transport of the attachment. The redemption of the attachment by DART RENTALS does not touch the contractual duties of the tenant. DART RENTALS reserves the right of assertion for further damages. 5.3. Compared with the pretensions of DART RENTALS, the assertion of the right of retention or charging is only possible, if the counterclaim of the tenant is undisputed or determined legally binding. 6. Assurance, authority 6.1. To assure all current and future pretensions of DART RENTALS, the tenant herewith cedes his receivables towards his client to DART RENTALS amounting to the entire agreed rent plus 25% assurance deduction. Herewith DART RENTALS accepts the cession. 6.2. DART RENTALS is authorized at all times to inspect and check the actual state of the attachment at normal working hours at the tenant or on site. 7. Extras, corporate veil 7.1. The tenant has to pay all extras, especially costs for loading and unloading, transport, fixation, operating materials, cleaning etc. along with the rent respectively plus VAT. 7.2. Due to the agreement of the corporate veil compensation, the liabilities of the tenant for damages of the attachment (machinery breakdown) caused by slightly careless personal negligence while using it following the contractual guidelines are limited to the determined amount retained constituted in the form. In case of an arrangement for corporate veil without determination of an amount retained in the rental contract, the agreement is as follows: up to a purchase price of EURO 30.000.- 10% of the initial cost of the rental object, everything above that purchase price 5% of the initial cost of the rental object, but at least EURO 500.- as amount retained. 7.3. If there is no agreement on corporate veil, the tenant is responsible for all damages on the rental object (no matter if caused by the tenant or by a third party) during the rental period. If there is no agreement on corporate veil, the tenant is obliged to insure the attachment during the rental period against damages of all sorts for the benefit of the hirer and to present the confirmation of cover of the insurance company to the hirer before the beginning of the rental time. The policy has to be presented to the hirer on his demand within 14 days. In case of damage, the tenant has to inform the hirer immediately including time and cause of the damage as well as its extent. In case the tenant insures the rental object for the benefit of himself, the tenant is already at present ceding his claims to the hirer, that the hirer himself can claim the damage directly to the insurance company. 7.4. Excluded from the agreement on corporate veil are damages caused by wantonly negligent or intended behaviour or damages caused by the use or defect of the rental object of a third party. 7.5. Likewise excluded from the agreement on corporate veil is the loss of the rental object by the tenant. 7.6. In case DART RENTALS takes out a policy as agreed, DART RENTALS has to take out an object and physical damage insurance, that also covers dangers of transport and theft and pilferage. The cost for the insurance is calculated by calendar days, whereat an inchoated calendar day counts as a whole calendar day. Costs thereby incurred will be further billed to the tenant when the contract is concluded. 8. Liabilities of DART RENTALS / tenant 8.1. DART RENTALS is only liable for those defects of the rental object that are a result of abrasion or usage while using it intended. 8.2. For breakup, loss, damage and depreciation of the rental object and its equipment, for direct and indirect damages incurred by the tenant or other persons through the use of the rental object, break or deprivation of usage as well as for further pretensions of the tenant – no matter in which legal ground - DART RENTALS is only liable: 8.3. In case DART RENTALS is liable according to no. 8.2 a) for the breach of a basic duty of the contract without gross negligence or intention having been occurred, the amount of the liability is limited to the damage, with which DART RENTALS had to count typically because of the known circumstances when concluding the contract. 8.4. The limitations of liability mentioned above are effective also for actions as for personal liability of the employee, substitute, subsidiaries and other agents of DART RENTALS. 8.5. The limitations of liability mentioned above are not effective, as far as DART RENTALS is liable according to the Product Liability Act. 8.6. The limitation period according to § 548 BGB is 12 months. This applies to the pretensions of DART RENTALS as well as for the pretensions of the tenant. 9. Duties of the tenant 9.1. The tenant is committed before starting to study the manual carefully. 9.2. The tenant is committed to handle the attachment properly and according to the contract, especially to protect it from overstraining in every respect, to take care for proper and professional maintenance and support of the attachment as well as to carry out necessary repairs properly and professionally using original spare parts at his own cost. DART RENTALS is to be informed immediately by the tenant, as soon as there is need of repair, no matter what. The tenant is not authorized to assign outside companies on the account of DART RENTALS to repair the attachment without previous written acceptance of DART RENTALS, as well as make changes on the rental object, especially fittings, rebuilding and fixtures or to remove labels. The tenant is not authorized to sublease the rented object or to leave it with a third party in any other way without previous written acceptance of DART RENTALS. The tenant is also not authorized to bring the rented attachment to another site than the one determined in the contract without previous written acceptance of DART RENTALS. 9.3. The tenant is committed to take care that the handling of the rented attachment is only proceeded by proper experienced specialists. Operating materials, detergents, etc. have to be in accordance with the instructions of DART RENTALS and always be in faultless condition. The tenant has to protect the attachment off-service from weather and to take care for adequate surveillance. From the manufactory ordered inspections of tools and machines have to be reported to DART RENTALS by the tenant in time and the access to the tool has to be granted during regular working hours, without charging the downtime. 9.4. In case of access of a third party to the rental object (confiscation, distraint, etc.) the tenant is obliged to inform DART RENTALS immediately and also inform the third party about the property of DART RENTALS. The intervention costs have to be paid by the tenant. In case of breach of the duty to inform and indicate the tenant has to replace the herein resulting damage. 10. End of rental period 10.1. The rental time ends with the day the attachment has arrived at DART RENTALS or another determined location with all for the starting necessary parts in a faultless condition as stated in the contract by DART RENTALS, but in no case before the termination of the agreed rental time. In case there is no agreed rental period the tenant has to announce the return of the rental object three working days in advance. 10.2. In case the redelivery is made directly to a new tenant, the rental period ends with the day of dispatch of the attachment by the tenant in a faultless condition as stated in the contract. 10.3. The tenant has to be informed about the extent of the damages he has to cover for and he has to get the opportunity for instant re-examination. The costs for the necessary repairs of the damages are to be announced to the tenant to an estimated amount before starting the renewal. 10.4. The rental period is extended at any rate to that time needed to repair the attachment at DART RENTALS or at the customer, as well as for safe-guarding and close-down. 10.5. The orderly return of the rental object is accepted by DART RENTALS, if noticeable damages are not announced immediately, the latest one week after return being complained in a written form. 11. Breach of maintenance obligation 12. Notice of cancellation 12.1. In case of a definite agreed rental time the orderly notice of cancellation of the contract is not possible. The same applies to the agreed minimum rental time of a contract concluded sine die. After the termination of the minimum rental time the tenant can cancel a contract concluded sine die within a period of 12.2. In case of delay of payment or decline of assets of the tenant or after conclusion of the contract facts emerge, that decrease the creditworthiness of the tenant, DART RENTALS is authorized to cancel the rental contract without keeping the term and to take the rented attachment offhand at the tenant’s cost. This is also true, if the tenant breaches his contractual duties after warning or if he brings the attachment to another place than the contractual agreed on without prior written notice to DART RENTALS or if he does not use it properly. 13. Loss of the rental object 14. General 14.1. All legal transactions executed between the two parties apply only and exclusively to German legislation, yet to the exclusion of the UN sales law (CISG). 14.2. Place of fulfilment for both parties and all mutual business relations is Munich. 14.3. Jurisdiction for merchants, legal persons and special assets governed by public law for any claims of exchange or checks as well as all indirect or direct disputes resulting from the privity of contract is Munich. DART RENTALS is yet authorized to sue at the customer’s location. 14.4. In case parts of these regulations are or become invalid, the validity of the remaining regulations is not effected. As far as there is a valid, adequate part included in the invalid regulations, it should be maintained. The parties commit to arrange a replacement regulation that comes the closest to the commercial result of the dropped condition. |
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