Our T&Cs can of course also be downloaded (PDF)"
General terms and conditions (hereinafter referred to as "T&Cs")
I. General rules and regulations
§ 1 General - Scope of validity
1. Our T&Cs apply exclusively; we do not recognise conflicting or deviating terms and conditions on the part of our customer unless we have explicitly agreed to their validity in writing. Our T&Cs shall also apply exclusively if we carry out deliveries or render services to the customer in the knowledge that the customer's T&Cs conflict with or deviate from our T&Cs.
2. Our T&Cs only apply to entrepreneurs within the meaning of § 310 para. 1 BGB (German Civil Code).
3. Our offers, cost estimates, technical drawings and technical descriptions are subject to change and are not binding. The recipient is not entitled to reproduce our documents and/or make them accessible to third parties without our written consent.
§ 2 Rights of offsetting and retention upon the part of the customer
The customer can only offset against our claims arising from the underlying contractual relationship with counterclaims from the same contractual relationship or only with undisputed or legally established counterclaims. The customer shall only be permitted to exercise a right of retention or a right to refuse performance insofar as their counterclaim is based on the same contractual relationship.
II. Conditions for rental (§§ 3 – 15)
§ 3 General obligations of the renter
1. The renter is obliged to use the rented object only as intended, to carefully comply with the relevant accident prevention and occupational health and safety regulations as well as road traffic regulations, to pay the rent as agreed, to handle the rented object properly and to return it in a clean condition at the end of the rental period.
2. The renter shall undertake to notify the lessor of the respective location or place of use of the rental object.
§ 4 General obligations of the lessor, delay of the lessor
1. The lessor shall relinquish the rental object to the renter for the agreed rental period and hand it over to the renter or to a person authorised by the renter to receive the rental object in a perfect, operable condition with the necessary documents.
2. The renter may demand compensation from the lessor if the lessor defaults on handing over the rental object at the beginning of the rental period. Where the lessor has acted with slight negligence, the renter's compensation shall be limited for each working day to a maximum of the (net) amount of the daily rental price of the rented object.
3. The renter is entitled to withdraw from the rental agreement if they have unsuccessfully set an appropriate deadline for handing over the rental object to the lessor after the agreed commencement of the rental period.
§ 5 Existing defects at the time of handover of the rented object
1. The renter is entitled to inspect the rental object in good time prior to commencement of the rental period and to give notice of any defects. The renter alone shall bear the costs of any inspection.
2. The renter shall notify the lessor in writing without undue delay after acceptance of the rental object of all defects of the rental object which are recognisable at the time of handover and which reduce its suitability for the contractually intended use to an extent which is not merely insignificant. If the renter fails to make this notification, the rental object shall be deemed to have been approved taking these defects into account. The same shall apply if the renter does not notify the lessor in writing of existing but not recognisable defects within the meaning of clause 1 immediately after their discovery when the rental object is handed over.
3. The lessor may, at their discretion, either rectify a defect notified to them in good time in accordance with § 5, Para. 2 or provide the renter with a rental object of equivalent functional value. The renter is exempt from paying the rent during the repair of the rental object by the lessor.
4. The renter may withdraw from the rental agreement if the lessor negligently allows a reasonable period set by the renter for the lessor to rectify the defect (in accordance with § 5 Para. 3) to elapse without success or if the rectification of the defect fails.
§ 6 Working hours, rental price, incidental costs, payment and right to collect in the event of delayed payment
1. The rent is calculated assuming normal use of the rented object of up to 8 hours per day on the basis of a 5-day week (Monday to Friday) and up to 22 working days per month.
2. A longer period of use, weekend deployments or more difficult deployments going beyond § 6, Para. 1 shall be charged additionally and shall be notified by the renter to the lessor without delay. If the renter uses the rental object for longer than 8 hours per day, they must pay 1/8th of the daily rental price for each additional hour of operation commenced on top of the rent calculated in accordance with § 6, Para. 1. If the rental object is used more than 5 days a week, the renter must pay an additional fee equal to the daily rental price for each additional day of use.
3. The agreed rental price does not include the costs for outward and return transport (including loading and unloading), packaging, necessary assembly and disassembly, provision of operating materials and/or operating personnel, machine breakage insurance, etc. These additional costs must always be paid by the renter in addition to the agreed rent.
4. If the rental object is transported by the lessor or a forwarding agent commissioned by the lessor to the renter or to another agreed location (e.g. construction site of the renter) and/or is transported from there back to the lessor by the lessor or a forwarding agent commissioned by the lessor, the renter must always pay the costs for the outward and return transport (including loading, unloading and packaging) in addition to the agreed rent.
5. The statutory value added tax is calculated by the lessor separately and shown separately in the rental invoice and must therefore always be paid additionally by the renter.
6. If the renter is more than 14 calendar days in default with the payment of an amount requested in writing by the lessor after the due date, the lessor may collect the rental object after prior notice without recourse to the court at the expense of the renter and otherwise make use of the rental object. The renter already grants the lessor access to the rental object for the purpose of collection. The contracting parties are in agreement that the lessor shall not violate the ownership or property rights of the renter by collecting the rental object. The lessor's claims to which they are entitled under the rental agreement shall remain valid even after the rental object has been collected; however, any amounts which the lessor has obtained or could have obtained within the agreed rental period, e.g. by renting the object elsewhere, will be deducted from the lessor's claims after deduction of the costs incurred as a result of the retrieval and new rental.
§ 7 Disuse clause
1. If work at the work site for which the renter has hired the rental object is suspended for at least ten consecutive days because of circumstances for which neither the renter nor their client is responsible (e.g. frost, flood, strike, civil unrest, acts of war, official orders), the time from the eleventh calendar day until the aforementioned circumstances no longer apply shall be deemed to be the period of disuse.
2. The rental term agreed for a certain period is extended by the period of disuse.
3. The renter shall pay the percentage agreed on the front of this rental agreement for the period of disuse of the rental price for normal use of the rental object (cf. § 6 Para. 1 of these rental conditions); in the absence of any agreement to the contrary by the contracting parties, the customary percentage of 75% shall apply. They shall also bear the costs and contributions to the machinery breakdown insurance incurred during the period of disuse (cf. § 15 of these rental conditions).
4. The renter must notify the lessor immediately in writing of the beginning and end of the period of disuse and provide proof of this upon request.
§ 8 Maintenance obligation of the renter
1. The renter is obliged to
a) protect the rental object against excessive strain in any way,
b) properly and professionally maintain and care for the rental object at their own expense and
c) notify the lessor in good time of any inspection and repair work which may be necessary and have it carried out by the lessor. The costs arising as a result shall be borne by the lessor if the renter and their auxiliary staff have demonstrably observed all due care.
2. The lessor is authorised to inspect the rental object at any time and, after prior consultation with the renter, to examine it personally or have it examined by a representative. The renter is required to facilitate the inspection for the lessor in every way feasible. The lessor alone shall bear the costs of any inspection.
§ 9 Termination of the rental period and return of the rental object
1. The renter is obliged to notify the lessor of the intended return of the rental object in a timely manner beforehand.
2. The rental period shall cease once the contractual rental period has expired, but not before the rental object with all parts required for commissioning has arrived back at the lessor's storage site or another agreed destination in an orderly and contractual condition; § 6, Para. 5, last half clause of these rental conditions shall apply accordingly.
3. The renter must return the rental object in an operational and cleaned condition or have it ready for collection; § 8, Para. 1 b) and c) of these rental conditions apply accordingly.
4. The return delivery must be made in good time during the lessor's normal business hours so that the lessor is able to inspect the rental object on the same day.
§ 10 Infringement of the maintenance obligation
1. If the rental object is returned in a condition indicating that the renter has not fulfilled the maintenance obligation regulated in § 8 of these rental conditions, the renter shall be obliged to pay the amount of the rental price as compensation until the end of the repair work not performed in accordance with the agreement.
2. The extent of the defects and damage for which the renter is responsible shall be notified to the renter and an opportunity shall be given to them to inspect the rented object themselves. The costs of the repair work necessary to rectify the defects must be quoted by the lessor to the renter in the estimated amount, if possible before the start of the repair work.
3. The lessor is deemed to have accepted the proper return delivery of the rental object if recognisable defects have not been reported immediately in the case of punctual return delivery within the meaning of § 9 Para. 4 of these rental conditions or in the case of other defects within 14 calendar days of arrival at the destination.
§ 11 Other obligations of the renter
1. The renter may neither transfer the rental object to third parties nor concede rights of any kind to the rental object to third parties. The renter is also not entitled to relinquish rights from the rental agreement.
2. The renter must inform the lessor immediately in writing if a third party asserts rights to the rental object through confiscation, seizure or the like. The renter must also immediately inform the third party in writing of the lessor's ownership of the rental object.
3. The renter must always take suitable measures to secure the rental object against theft.
4. The renter must always take suitable measures to secure the rental object against theft. The police must be summoned in the event of traffic accidents or theft.
5. The renter must compensate the lessor for all damages resulting from breaches of the conditions of § 11, Para. 1 to Para. 4 of these rental conditions.
§ 12 Limitation of liability of the lessor
If the lessor's liability is not specifically regulated in these rental conditions, the renter's claims for damages against the lessor shall be limited to
a) gross negligence on the part of the lessor,
b) culpable breach of essential contractual obligations jeopardising the fulfilment of the purpose of the agreement with regard to the typical contractual damage foreseeable at the time the agreement was concluded,
c) negligent breach of duty on the part of the lessor or intentional or grossly negligent breach of duty on the part of one of their legal representatives or vicarious agents resulting in damage to life, limb or health as well as
d) cases in which the lessor is liable under the Product Liability Act for personal injury or material damage to privately utilised objects.
Any other liability on the part of the lessor is excluded.
§ 13 Termination
a) In principle, the rental agreement concluded for a specific rental period cannot be terminated by either party.
b) This also applies to the minimum rental period within the framework of a rental agreement concluded for an indefinite period. Both contracting parties may terminate the rental agreement concluded for an indefinite period after expiry of the minimum rental period subject to compliance with the statutory period of notice (§ 580 a Sec. 3 BGB).
c) Rental agreements for an indefinite period without a minimum rental period may be terminated by either contracting party subject to the statutory period of notice (§ 580 a Sec. 3 BGB).
2. The contracting parties have the right to terminate the rental agreement without notice for good cause. The lessor in particular is entitled to terminate the rental agreement for good cause if
a) the renter is more than 14 calendar days in default with the payment of an amount requested by the lessor in writing after the due date,
b) the lessor becomes aware after conclusion of the agreement that their entitlement to payment of the rental price is at risk due to the lessee's inability to pay,
c) renter changes in protest or rental cheques not cashed,
d) the renter does not use the rental object as intended or moves it to another location without the consent of the lessor,
e) the renter violates the provisions of § 8 Para. 1 or § 11 Para. 1 - Para. 4 of these rental conditions or
f) the renter hands over the rental object to a third party.
3. If the lessor terminates the rental agreement without notice for good cause, the provisions of § 6 Para. 6 as well as §§ 9 and 10 shall apply accordingly.
§ 14 Loss of the rental object
The renter is obliged to pay compensation to the lessor should it be culpably impossible for them to fulfil their obligation to return the rental object in accordance with § 10 Para. 3 of these rental conditions.
§ 15 Machinery breakdown insurance
1. The renter must insure the rental object during the term of the rental agreement pursuant to the General Conditions for Machinery and Comprehensive Insurance of Mobile or Transportable Equipment (ABMG 92).
2. Machinery breakage insurance in accordance with § 15 Para. 1 of these rental conditions can be taken out with the lessor with a deductible rate (excess) of €1,250.00 or €2,500.00 per claim by the lessee, depending on the device concerned. Further details relating to the contents and the hazards insured by such machinery breakdown insurance can be found in a leaflet obtainable from the lessor as well as in the General Conditions for Machinery and Comprehensive Insurance of Mobile or Transportable Equipment (ABMG 92). The damages caused by theft, burglary and robbery of the rental object are not covered by the machinery breakdown insurance taken out with the lessor.
III. Conditions for purchase (§§ 16 – 21)
§ 16 Conclusion of the agreement
Our offers are non-binding, i.e. the binding conclusion of an agreement only comes into effect upon receipt of our order confirmation.
§ 17 Prices – payment conditions
1. Insofar as nothing to the contrary is stated in the order confirmation, our prices shall be quoted ex works, plus statutory value-added tax, excluding packaging; this shall be charged separately.
2. Cash discount deduction requires special written agreement.
3. The purchase price is due for payment immediately without deduction unless otherwise stated in the order confirmation.
§ 18 Delivery period
1. The commencement of the delivery period specified by us is subject to the clarification of all technical issues.
2. Compliance with our delivery obligation further assumes the timely and orderly fulfilment of the customer's obligations.
3. Should the purchaser delay acceptance or culpably violate other obligations to cooperate, we shall be authorised to demand compensation for any damage incurred by us in this respect, including any additional expenses.
4. If the prerequisites of Para. 3 are in place, the risk of accidental loss or accidental deterioration of the purchase item shall pass over to the purchaser at the point of time at which they are in default of acceptance or payment.
5. We shall assume liability in accordance with the statutory provisions provided that the underlying purchase agreement is a fixed transaction within the meaning of § 286 Sec. 2 No. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery attributable to us, the purchaser is entitled to assert that their interest in the further performance of the agreement has ceased.
6. Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is attributable to an intentional or grossly negligent breach of agreement for which we are responsible; culpability on the part of our representatives or vicarious agents shall be attributable to us. If the delay in delivery is not attributable to a breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
7. We shall also assume liability in accordance with the statutory provisions inasmuch as the delay in delivery for which we are responsible is based on the culpable breach of a fundamental contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
§ 19 Transfer of risk
Deliveries "ex works" are agreed unless otherwise stated in the order confirmation.
§ 20 Liability for defects
1. Claims for defects on the part of the customer are subject to the condition that the customer has duly complied with their obligations to inspect the goods and give notice of defects in accordance with § 377 HGB.
2. If a defect is present in the purchase item, the customer shall be entitled to supplementary performance in the form of rectification of the defect or to delivery of a new item free of defects, as they wish. In the case that the defect is rectified, we shall be obliged to bear all the costs which are required for the purpose of rectifying the defect, in particular transport costs, travelling expenses, labour and material costs, insofar as these are not increased by the fact that the purchase item was taken to a place other than the place of performance.
3. If supplementary performance fails, the customer will be entitled to demand cancellation or reduction at their discretion.
4. We shall be liable in accordance with the statutory provisions insofar as the customer makes claims for damages that are based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. Insofar as we cannot be held responsible for the intentional violation of the agreement, liability for damages shall be limited to the foreseeable, typically occurring damage.
5. We shall be liable in accordance with the statutory provisions, insofar as we culpably violate an essential contractual obligation; however, in this case the liability for damages is limited to predictable damage that might typically occur.
6. Insofar as the customer is entitled to a claim for compensation for damage in lieu of performance, our liability shall also be limited to compensation for the foreseeable loss or damage that might typically occur, within the context of Para. 4.
7. Liability for culpable injury to life, limb or health shall remain unaffected; this shall also be applicable to mandatory liability under the Product Liability Act.
8. Liability is excluded except where regulated otherwise above.
9. The limitation period for any claims arising from defects shall be 12 months, beginning with the transfer of risk. The limitation in accordance with § 438 Sec. 1 Para. 2 b BGB remains unaffected.
10. Insofar as liability for damages on our part is excluded or limited, this shall also apply with regard to the personal liability for damages on the part of our staff, representatives and vicarious agents.
11. We sell used machinery under exclusion of any warranty. Only those characteristics of new and used machinery which we have confirmed to the purchaser in writing as such are guaranteed.
§ 21 Retention of title
1. We shall retain title to the purchase item until receipt of all payments arising from the business relationship with the purchaser.
2. Should the customer be in breach of contract, in particular in the event of default in payment, we shall be authorised to take back the purchase item after the expiry of a reasonable deadline set for payment. The purchaser is obliged to surrender the goods. Our repossession of the purchase item shall not constitute a withdrawal from the purchase agreement unless we have explicitly stated our withdrawal in writing. Our right to withdraw from the agreement in accordance with the statutory provisions shall remain unaffected by our request for surrender. The return of the purchase item to us cannot be construed as a withdrawal from the agreement. After taking back the purchase item, we are entitled to utilise it; after deducting the appropriate utilisation costs, the proceeds shall be set off against the liabilities of the customer.
3. The customer is required to treat the purchase item with due care; they are in particular required to insure it sufficiently at replacement value against fire, water and theft at their own expense. The customer must carry out any maintenance and inspection work required in good time and at their own expense.
4. The customer must inform us immediately in writing in the event of seizure or other interventions by third parties so that we can take legal action in accordance with § 771 ZPO (Code of Civil Procedure). Provided that the third party is not in a position to compensate us for the judicial and extrajudicial costs of a litigation in accordance with § 771 ZPO, the customer shall be liable for any loss incurred by us. The customer is prohibited from pledging the goods or assigning them as security to third parties.
5. The customer has the right to sell on the purchase item within the ordinary course of business. However, they hereby assign to us as security all their future claims from the resale against their customers with all ancillary rights - including any balance claims - without the need for any further special declarations. The cession shall be made irrespective of whether the purchase item has been resold without or after processing. The cession shall apply up to the amount which corresponds to the price of the purchase item invoiced to the customer (final invoice amount including VAT). The customer shall retain the right to collect this claim even after cession. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils their payment obligations arising from the proceeds received, is not in default of payment and, in particular, application has not been made to open bankruptcy or composition or insolvency proceedings and cessation of payments has not taken effect. If this is the case, however, we are able to demand that the customer makes the assigned claim and the debtors known to us, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
6. The processing or transformation of the purchase item by the customer will always be carried out on our behalf. If the purchase item is processed with other items not belonging to us, we shall acquire the joint ownership of the new items in proportion to the value of the purchase item (final invoice amount including VAT) in relation to the value of the added items at the time of the processing. The same rules shall apply for the items created by processing as for the purchase item delivered under reservation of the right of ownership.
7. If the purchase item is inseparably mixed with other items not belonging to us, we shall acquire the joint ownership of the new items in proportion to the value of the purchase item (final invoice amount including VAT) in relation to the value of the mixed items at the time of the mixing. If such mixing has been carried out in such a way that the customer's item is to be regarded as the main item, then it is hereby agreed that the customer assigns part ownership to us in the appropriate proportion. The customer shall retain the resultant sole ownership or co-ownership in safe custody for us.
8. If the marketable value of all security rights to which we are entitled exceeds the amount of all security claims by more than 10%, we shall release a corresponding part of the security rights in the excess amount at the customer's request. It is at our discretion to choose between the various security rights for release.
IV. Provisions for assembly and repair services (§§ 22 – 27)
§ 22 General
The deployment of our personnel during the execution of assembly, repairs and inspections and similar work shall be carried out exclusively - with the exception of assembly and repair services to which we are obliged within the framework of a guarantee or liability for defects - on behalf of and at the risk and liability of the customer. We assume no liability for auxiliary staff provided by the client.
§ 23 Pricing
Payment is based on the cost of materials and the time spent. The hourly rates valid on the day of execution shall be authoritative; travel and waiting times shall be regarded as working hours and shall be charged at the hourly rates valid in this respect. The surcharges applicable to us will be charged for overtime, night, Sunday and public holiday work. Travel expenses (vehicle, train, flight), as well as accommodation and daily living expenses of the assembly personnel shall be charged separately.
§ 24 Cooperation of the client
The client is obliged to support our people in the performance of work at their own expense. The client must in particular provide the necessary lifting hoists, equipment, assistants, material, electrical energy, etc. in good time and free of charge prior to the arrival of the assembly personnel, even if the assembly is included in the price of the individual deliveries and services or if a lump-sum price agreement has been agreed for the assembly. The client must take the necessary safety measures to ensure the protection of persons and property at the workplace.
§ 25 Assembly period
All information regarding dates and assembly deadlines are subject to change and are non-binding.
§ 26 Acceptance
Acceptance of the assembly is obligatory on the part of the client as soon as they have been notified of its completion and a trial run has taken place by the contractor.
§ 27 Liability for defects
The contractor shall be liable for defects following completion of the assembly if they occur within 30 days after completion. Appearances of defects must be reported immediately, otherwise no liability can be assumed by the contractor. The liability is limited to the rectification of the defects under exclusion of all further claims of the customer.
V. MTS Pilot (§§ 28 - 32)
If a rental or purchase agreement relates to a product from the "MTS-Pilot" range, the following special provisions shall apply in addition to the above conditions for rental (II. §§ 3 - 15) or purchase (III. §§ 16 - 21), whereby these take precedence in case of doubt.
§ 28 "MTS-Pilot" - application requirements
1. The customer is provided with the software required for the specific application of the product. Additional deliveries and services are made depending on the product in question.
2. Where the software is used by the customer on their own hardware with our consent, the customer shall independently check compliance with the system requirements required for the use of the software. The customer will be informed about the necessary system requirements by our support department on request.
§ 29 Support
Our support department is available to answer any questions you may have about "MTS-Pilot" through the telephone number indicated on the device during normal business hours.
§ 30 Hardware and software
1. A Windows operating system from the Microsoft Corporation, Redmond, United States is required to run the "MTS-Pilot" products.
2. If a tablet PC is delivered to the customer in the course of implementing the rental or purchase agreement, the operating system and the agreed software shall already be pre-installed on it.
This installation assumes that the General Terms and Conditions of the Microsoft Corporation for the Windows operating system are acknowledged and accepted. These can be obtained from us on request. The customer accepts the validity of these General Terms and Conditions and shall release MTS AG irrevocably and unconditionally from claims by the Microsoft Corporation or third parties in respect of violations and infringements culpably committed by them.
In all other respects, the installation shall be carried out by us exclusively in the name of, on the authority of and on behalf of the customer. The customer is therefore also in agreement that we alone consent to the validity of the General Terms and Conditions of the Microsoft Corporation in their favour and against them.
3. Where a tablet PC is delivered to the customer in the course of implementing the rental or purchase agreement, the installation and/or use of any other software by the customer as "MTS Pilot" shall be prohibited.
4. If a tablet PC is delivered to the customer in the course of implementing the rental or purchase agreement, its use on the Internet shall be prohibited.
5. Updates to the application software and the operating system are carried out free of charge by the support department. The customer shall be informed of updates to be carried out in good time.
The automatic update function of the operating system is intentionally deactivated. If the customer activates this function themselves, damage, faults, loss of data and malfunctions may occur, which is why the use of this automatic update function by the customer is at the customer's own risk.
§ 31 Data protection
1. A data exchange with the Microsoft Corporation is carried out during the installation of the operating system, provided this does not conflict with the error-free use of the "MTS-Pilot" software.
2. There is no data exchange resulting from the installation and use of the "MTS-Pilot" software.
§ 32 Liability
1. In addition to the limitations of liability set out above, we shall not be liable for any errors or damage resulting from incorrect use. It is the customer's own responsibility to check the data available for the specific construction project (DTM, plans, etc.); MTS AG does not check this data.
2. The "MTS-Pilot" application in no way relieves the customer of the need to independently check and monitor the implementation of the plan.
3. MTS AG does not assume any liability for defects, damages, faults, loss of data or malfunctions resulting from the installation and/or use of third-party software. This applies particularly to the delivery of a tablet PC to the customer during the implementation of the rental or purchase agreement.
4. MTS AG likewise does not assume any liability in cases in which defects, damage, faults, loss of data or malfunctions can be attributed to the use of the device on the Internet. This applies particularly to the delivery of a tablet PC to the customer during the implementation of the rental or purchase agreement.
5. The above Para. 3 and 4 shall apply accordingly to the use of the "MTS-Pilot" software on the customer's own hardware (see § 28 Para. 2).
6. MTS AG assumes no liability for the fault-free, contractually appropriate and professional realisation of the construction project by the customer in accordance with the rules of technology.
VI. General final provisions
§ 33 Final provisions - place of jurisdiction
1. The law of the Federal Republic of Germany shall apply.
2. Should our customer be a merchant, the place of jurisdiction shall be our place of business; however, we shall also be entitled to sue the customer at their place of general jurisdiction.
Our leasing terms and conditions can of course also be downloaded (PDF)!
General contractual conditions for leasing contracts in the case of partial amortisation
1. Conclusion of contract, commencement of contract
The leasing contract is concluded as soon as the lessor has accepted the leasing offer.
The lessee/guarantor is obliged to notify the lessor of any change of address and/or name within 8 days.
Payments in instalments are always due monthly.
The lessee is obliged to inspect the leased object without delay for defects, completeness and conformity with the agreement and to promptly notify the lessor in writing of any specified complaints. The lessee must accept the leased object, provided that no objections arise.
Reasonable design and shape changes as well as reasonable deviations in the colour shade and standard scope of delivery must be accepted by the lessee.
The acceptance declaration becomes an integral part of the leasing contract once it has been signed by the lessee. The lessee shall bear the costs and risks arising from the delivery, installation, assembly and disassembly of the leased object.
3. Delay in delivery
Claims by the lessee against the lessor due to non-delivery or delayed delivery by the supplier are excluded insofar as these exceed the legal claims.
4. Lease instalments/taxes
Lease instalments must be paid at the end of each month, beginning at the end of the month of delivery. The leasing instalments are fixed for the term of the leasing contract. The parties are authorised to request that the leasing instalments be adjusted in the event of a change in taxes, in particular VAT or fees, during the term of the contract. The instalments are paid by SEPA direct debit. This requires the lessee to issue a SEPA mandate.
The SEPA direct debit is collected on the respective due date. The period for pre-notification will be reduced to 1 day. The lessee agrees to this reduction when signing the leasing agreement. The lessee shall ensure that the account is covered. Costs resulting from the non-redemption or reversal of the direct debit shall be borne by the lessee insofar as the non-redemption or reversal was not caused by the lessor. The lessor shall charge the lessee a processing fee of €10.00 each for direct debits not redeemed by the lessee's bank. The lessee is entitled, for their part, to prove that the lessor suffered no or only minor damage.
5. Defects of quality and title
The statutory provisions shall apply to the assertion of any defects of quality and title.
6. Use and maintenance, repairs, location
The lessee must keep the leased object in an operational and roadworthy condition at their own expense and handle it with due care. They must only use the leased object in careful compliance with the instructions for use as well as the maintenance and care recommendations of the supplier.
The lessee must have the prescribed or recommended maintenance work carried out on time. The same applies to any necessary repairs to the leased object.
The lessee must comply with all laws and regulations that govern the ownership and operation of the leased object, especially any obligations arising therefrom. The lessee shall release the lessor from all claims by third parties in relation to the leased object. This is especially true for third party claims resulting from the violation of the aforementioned obligations and for any highway or other road tolls.
Should the lessee be in default of these obligations regarding use and maintenance, the lessor shall be entitled to fulfil such obligations at the lessee's expense in the event of imminent danger or special urgency.
Modifications and additions to the leased object require the written consent of the lessor. The lessee must keep the leased object free from all rights of third parties. The lessor is entitled to inspect the leased object after consultation with the lessee. It shall be marked as the property of the lessor upon request.
The lessee is not permitted to alter the agreed location of the leased object and its intended use or to make significant changes to the object without the written consent of the lessor.
7. Assumption of risk
The lessee shall bear the risk of accidental perishing, loss, theft and damage of the leased object from the time of acceptance of the leased object, unless the lessor is responsible for this. In the event of complete loss or total destruction or any other significant damage to the leased object, the lessee and the lessor shall be entitled to an extraordinary right of termination. The lessee retains the obligation to pay the agreed instalments until termination.
In this case, the lessor hereby assigns all claims to which they are entitled against third parties based on their ownership of the leased object to the lessee accepting the cession. The lessee is entitled to repair the leased object at their own expense and to continue the leasing agreement unchanged instead of terminating the agreement. The lessee shall inform the lessor immediately of their choice. If the lessee chooses to repair the leased object, they must ensure that it is restored to the condition stipulated in the contract and immediately provide the lessor with proof of this.
8. Charges relating to the leased object/taxes
Fees, taxes, duties and other charges that arise from the possession or use of the leased object shall be borne by the lessee. The lessee shall release the lessor from any and all claims asserted by third parties on the basis of the use of the leased object up to the time the lessor takes possession of the object.
9. Insurance, assignment of claims for damages
The leasing object is insured by the lessor against
- operating errors/clumsiness
- design, material and workmanship defects
- overpressure or underpressure
- short circuit, overcurrent or overvoltage
- fire, lightning strike or explosion as well as by extinguishing during these events
- forces of nature (earthquake, high water, flooding, storm, ice, frost)
- theft when properly secured
provided there is no gross negligence or intent.
The lessee shall have to pay an excess of 2,000.00 EURO per claim, irrespective of fault.
The leasing agreement may not be ordinarily terminated before expiry of the term of the agreement.
The lessor is entitled to terminate the contract without notice for good cause, especially if
a) the lessee has made false declarations regarding their financial situation at the time the contract was concluded, which are likely to significantly jeopardise the economic interests of the lessor and/or has concealed facts at the time the contract was concluded, which would objectively deter the lessor from concluding the contract,
b) the lessee is in arrears with the payment of the instalments for two consecutive months, or is in arrears with the payment of the instalments for a period extending over more than two dates, by an amount which equals the instalments for two months,
c) the lessee infringes their contractual obligations despite having been warned of the possibility of termination without notice, in particular if they use the leased object in an improper manner or sublet it or make it available for use to third parties without the lessor's consent,
d) the lessee violates the regulations of the Money Laundering Act.
If the lessor terminates the contractual relationship for good cause, the lessee is obliged to immediately surrender the leased object. The provisions in Para. 15 apply in the same manner. If the lessee does not immediately surrender the leased object, the lessor is entitled to take possession of the leased object immediately at the lessee's expense and to utilise it as they see fit. The lessee explicitly agrees to the lessor taking possession of the leased object and hereby undertakes to surrender the leased object.
The lessor also has a claim for damages, which must be calculated in concrete terms.
11. Default interest
In the event of default in payment, the lessor is entitled to charge interest at the statutory rate.
The right to claim additional default damages remains reserved. The lessee/guarantor is entitled, for their part, to prove that the lessor suffered only minor damage.
The lessee/guarantor may offset due claims if the counterclaim is established as legally binding, recognised by the lessor or is undisputed.
Subleasing or any other transfer of use of the leased object to third parties requires the prior written approval of the lessor. The lessee hereby cedes any claims arising from subleasing to the lessor, who accepts the cession.
14. Transfer of claims under this contract
The lessee may neither transfer nor pledge the rights or claims to which they are entitled under this agreement. The lessor is authorised to transfer their claims arising from this agreement, including ownership of the leased object, to third parties.
15. End of agreement, right to require purchase, return
The lessor has the right to require purchase at the end of the non-terminable basic lease term. The lessor is not obliged to exercise their right to require purchase.
Should the lessor practise this right, the lessee is obliged to purchase the leased object for the agreed residual value, to the exclusion of any warranty or other liability for the leased object. Payment of the residual value is due immediately after the right to require purchase has been exercised and upon receipt of the corresponding declaration of the lessor by the lessee.
The lessor shall inform the lessee three months prior to the end of the basic lease term as to whether an extension is being offered or whether they are exercising their right to require purchase. In the event of an extension, the leasing instalments are at least equal to the agreed residual value.
If the market value/present value is above the agreed residual value, this market value/present value is decisive for the calculation of the subsequent instalments.
The lessee has no right to purchase the leased object in such cases. If the lessee continues to use the leased object despite termination of the leasing agreement without a purchase or renewal agreement having been concluded in accordance with the above provisions, the lessee shall remain obliged to pay the leasing instalments until the leased object is finally returned.
The lessee is obliged - notwithstanding the above provision in Sec. 4 - to deliver the leased object to the lessor free of charge and cleaned if neither a purchase nor an extension contract is concluded.
16. Compensation for use
If the leased object is not returned on time, the lessee is charged 1/30 of the monthly gross lease instalments for each day the leased object is withheld from the lessor.
This does not preclude the lessor from claiming further damages, whereby the lessee/guarantor is entitled to prove that less damage has been incurred.
17. Right of inspection, cooperation obligations
The lessee shall be obliged to immediately notify the lessor in writing of all facts essential for the execution of the leasing agreement and for the fulfilment of legal obligations (e.g. under the Money Laundering Act), especially changes of name, address, economic beneficiaries or powers of representation and disposition (e.g. powers of attorney, procuration). The duty of disclosure also applies if the facts are entered in public registers and are published.
The lessee is also obliged to fulfil further legal disclosure and cooperation obligations, in particular under the Money Laundering Act. Damages and losses resulting from a culpable breach of the cooperation obligations shall be borne by the lessee.
18. Data protection, consent to data processing, general
The lessor has the right to internally store data, which may also be personal data, relating to the request (e.g. lessee, co-debtor, guarantor, leasing instalments, term of the leasing agreement, start and amount of leasing payments) and execution of the leasing agreement (e.g. premature contract termination, termination without notice, filing of suit, enforcement measures) in accordance with § 28 BDSG, to use it for processing the leasing application/agreement and to transfer it to a refinancing institution and/or data pools for the purpose of refinancing the leasing agreement in order to improve industry security.
The lessee hereby gives their consent to the collection, processing and use of data. The lessor is entitled to transfer the rights and obligations arising from this agreement to third parties. The lessee is obliged to inform the lessor immediately of any changes in their legal relationships. The lessee also undertakes to promptly notify the lessor of any changes to their bank details in writing.
19. Concluding provisions
Amendments to this agreement as well as ancillary agreements must be made in writing to become effective; this also applies to a waiver of this clause.
The place of performance and jurisdiction is – to the extent permitted by law – the place of business of the lessor; however, the lessor is also entitled to launch proceedings against the lessee at their local court. The law of the Federal Republic of Germany shall apply.