1. Offer and Conclusion of Contract
1.1 All quotations and orders shall be governed exclusively by the following "General Terms and Conditions of Sale and Delivery (hereinafter also referred to as" Conditions of Contract "). The contractor does not accept any terms and conditions of the client that deviate from or contradict these terms and conditions of the contract unless his express written consent has been given. Even if the contractor executes the delivery unconditionally in knowledge of the customer's terms and conditions deviating from or contradicting these terms and conditions of the contract, this does not imply agreement - even in this case these terms and conditions of the contract apply. The contractor's offers are subject to change without notice. Orders placed shall only become binding upon written confirmation by the contractor.
1.2 Priority over these terms and conditions of contract shall be given in individual cases to individual agreements made with the client (including ancillary agreements, supplements and amendments). The content of such individual agreements shall be determined by a written contract or written confirmation of the contractor.
1.3 The contractor reserves the right of ownership of cost estimates, drawings and other documents and, insofar as it is capable of copyrights, the copyright. They may not be made accessible to third parties.
2. Scope of the Delivery Obligation
2.1 The scope of delivery shall be determined by the written order confirmation by the contractor.
2.2 Specifications of dimensions, weights, illustrations and drawings as well as other documents belonging to the offers are only approximately authoritative unless they have been expressly designated as binding.
3. Price and Payment
3.1 The prices are valid ex warehouse of the contractor. Value added tax is charged additionally.
3.2 The invoice amount is due upon delivery, but at the latest on the day of receipt of the invoice. The invoice amount is to be paid without deduction.
3.3 In the event of non-compliance with the terms of payment or if the Contractor becomes aware after conclusion of the contract that the claim for payment is endangered due to a lack of capability on the part of the Customer, the Contractor shall be entitled to perform outstanding deliveries and services only against advance payment or provision of security.
3.4 The client only has a right of set-off and/or retention on account of counterclaims which have been finally and conclusively ascertained or are undisputed or are ready for decision in legal proceedings.
4. Delivery Time
4.1 The delivery period is considered to have been fulfilled if the delivery item has left the supplier's warehouse or the manufacturer's works by the end of the delivery period or if the customer has been notified of readiness for dispatch.
4.2 In the event of industrial disputes and unforeseen hindrances beyond the contractor's control, the delivery period shall be extended accordingly. This shall also apply if the impediments have arisen during an already existing delay.
4.3 If the customer suffers damage due to a delay for which the contractor is responsible, in particular if a delivery date agreed with the contractor is fixed, the customer shall be entitled to claim compensation. In the case of slight negligence, it shall amount to 0.5% for each full week of delay, but in total, however, a maximum of 5% of the net payment amount of that delivery which has not been delivered on time as a result of the delay. Without prejudice to Section 8.5, further claims for damages arising from default in the case of slight negligence are excluded.
4.4 If dispatch is delayed as a result of circumstances for which the customer is responsible, the contractor shall be entitled to claim the costs incurred by him on account of the delay including any storage costs from third parties. The contractor shall be entitled to dispose of the delivery item in another way after granting a grace period which has lapsed fruitlessly and to supply the customer with an appropriate extension of time.
4.5 Adherence to the delivery period presupposes fulfilment of the obligation of the customer from the purchase contract.
4.6 If the contractor himself is not supplied although he has placed identical orders with his suppliers or the manufacturer, the delivery period shall be extended accordingly. In this case, the contractor will immediately inform the customer of the non-availability of the delivery.
5. Transfer of Risk and Acceptance of the Delivery Item
5.1 The risk shall be transferred to the principal upon handover of the delivery item to the freight forwarder, carrier or collector, or in the case of transport by means of transport of the contractor, but at the latest upon leaving the warehouse of the contractor or the manufacturer's works. At the client's request, the contractor shall insure the cargo against breakage, transport, fire and water damage at the client's expense.
5.2 If dispatch is delayed as a result of circumstances for which the contractor is not responsible, the risk shall pass to the customer from the day of readiness for dispatch. At the request of the customer, the contractor is obliged to insure the delivery item against damage. The costs shall be borne by the client.
5.3 Delivered items are to be received by the customer, without prejudice to the rights under Clause 7, unless they show any significant defects.
5.4 Partial deliveries to a reasonable extent are permissible.
6. Retention of ownership
6.1 The contractor retains title to all delivery items until full payment of all claims arising from the business relationship with the customer. In the case of current accounts, the entire reserved property serves to secure the balance claim. If the estimated value of the reserved property serving as security for the contractor exceeds the outstanding claims against the customer by more than 50%, the contractor is obliged to release securities of his choice at the request of the customer.
6.2 The customer may neither pledge nor assign the delivery item as security. In the event of attachment, seizure or other disposition by third parties, he shall inform the contractor thereof without delay.
6.3 In the event of conduct contrary to the contract on the part of the client, in particular default of payment, the contractor shall be entitled to take back the goods after a reminder and the client shall be obliged to surrender them. The assertion of the retention of title presupposes the withdrawal from the contract.
6.4 The contractor is entitled to insure the delivery item against fire, water and other damage at the expense of the client, unless the client has demonstrably taken out the insurance himself.
7. Liability for Defects in Delivery
7.1 All those parts shall be repaired or re-delivered free of charge, at the discretion of the contractor and subject to reasonable discretion, which have a material defect within 12 months of delivery due to a circumstance occurring prior to the passing of risk. The detection of such defects must be reported to the contractor immediately in writing. Claims for material defects shall become time-barred 12 months after delivery. The period referred to in clause 7.1 sentence 3 above shall not apply if the defects of a building or of objects for a building have caused the material defect. Contrary to section 7.1 sentence 3, the statutory periods of limitation shall also apply in the event of recourse by an entrepreneur in accordance with sections 478,479 of the German Civil Code (BGB) as well as in the event of any claims by the client pursuant to section 8.5 of these Terms and Conditions of Contract.
7.2 No liability is assumed for damage caused by natural wear and tear.
7.3 No liability is assumed for damage caused by the following reasons: Inadequate or improper use - Incorrect assembly or commissioning by the customer or third parties - Incorrect or negligent handling of the delivery item, especially with regard to these operating instructions - Excessive stress and - Use of unsuitable equipment and replacement materials.
7.4 In order to carry out all repairs and replacement deliveries deemed necessary by the Contractor at its reasonable discretion, the Customer shall give the necessary time and opportunity after consultation with the Customer, otherwise the Contractor shall be exempted from liability for defects. Only in urgent cases of endangering operational safety, of which the contractor is to be notified immediately, or if the contractor is in default with the remedy of the defect, shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reasonable reimbursement of his costs from the contractor.
7.5 Of the direct costs arising from the repair or replacement delivery, the contractor shall bear the costs of the replacement part, including shipping, as well as the reasonable costs for removal and installation, provided that the complaint is to be regarded as justified. Otherwise, the client shall bear the costs.
7.6 Any improper modifications or repair work carried out by the client or third parties, without the contractor's prior approval, will void the liability for the resulting consequences.
7.7 Further claims of the client are only valid in cases of section 8.5 of these contractual conditions.
7.8 Used delivery items are sold under exclusion of liability for material defects. This exclusion does not apply to claims under Section 8.5 of these terms and conditions.
7.9 Unless otherwise agreed, the contractor shall deliver his deliveries within Germany free of industrial property rights and copyrights of third parties. If a corresponding infringement of industrial property rights should nevertheless still exist, he shall either obtain a corresponding right of use from the third party or modify the delivery item to the extent that there is no longer an infringement of industrial property rights. Insofar as this is not possible for the contractor on reasonable and reasonable terms, both the customer and the contractor are entitled to withdraw from the contract.
7.10 In all other respects, the provisions of this Clause 7 shall apply mutatis mutandis in the case of defects of title, whereby claims of the Customer shall only exist if the Customer immediately informs the Contractor in writing of any possible claims asserted by third parties, if the Contractor does not acknowledge any alleged infringement directly or indirectly, if the Contractor retains unrestricted all defence options, if the infringement of rights is not based on the Customer having altered the delivery item or used it in a manner not in accordance with the contract.
8. Customer's rights of withdrawal from the contract or reduction of the purchase price as well as other liability of the contractor
8.1 The Principal may withdraw from the contract if the Contractor is finally unable to perform the entire service. The same shall apply in case of incapacity of the contractor. The customer may also withdraw from the contract if, when ordering similar items, the execution of a part of the delivery becomes impossible in terms of quantity and he has a justified interest in refusing a partial delivery. If this is not the case, the client may reduce the consideration accordingly.
8.2 If there is a delay in performance within the meaning of clause 4 of these contractual conditions and if the customer grants the contractor in default a reasonable grace period and if the grace period is not observed, the customer is entitled to withdraw from the contract.
8.3 If the impossibility occurs during default of acceptance or due to the fault of the client, the client remains obligated to counter-performance.
8.4 The client shall also have the right to withdraw from the contract if the contractor allows a reasonable period of grace granted to him to remedy the defect to expire without result. The Customer's right to withdraw from the contract shall also apply in other cases of failure of the repair or replacement delivery by the Contractor.
8.5 Further claims for compensation for damages of any kind, including damages that have not occurred on the delivery item, shall only exist - in the case of gross negligence or wilful intent - in the case of injury to life, limb or health - in the case of culpable breach of essential contractual obligations, insofar as the achievement of the contractual purpose is jeopardised, with regard to foreseeable damage typical of the contract - in cases where liability is assumed in accordance with the Product Liability Act in the case of defects in the delivery item, personal injury or damage to privately used items - in the case of defects that have been fraudulently concealed or whose absence has been guaranteed by the contractor. Further claims for damages are excluded.9. Liability for ancillary obligations
If, through the fault of the Contractor, the delivered item cannot be used by the Principal in accordance with the contract due to omitted or faulty execution of proposals and consultations prior to or after conclusion of the contract as well as other contractual ancillary obligations - in particular instructions for operation and maintenance of the delivery item - the provisions of Sections 7 and 9 of these contractual conditions shall apply accordingly to the exclusion of further claims by the Principal.
10. Place of Performance and Jurisdiction
10.1 This contract is subject to the laws of the Federal Republic of Germany.
10.2 The place of performance for all services arising from or in connection with the contract shall be the business domicile of the lessor or the domicile of his branch office which has concluded the contract.
10.3 If the Hirer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship in connection with Fischer - Jung Bau- und Recyclingtechnik GmbH as well as Fischer - Jung Miet -, Vertriebs - und Service GmbH in Dresden. For all disputes arising directly or indirectly from the contractual relationship in connection with Fischer - Jung GmbH and Fischer - Jung Aufbereitungstechnik GmbH in Krefeld.
*In case of translation errors, the German GTC apply.
1. General - Scope of application
1.1 The present General Terms and Conditions of the lessor apply to all offers and rental agreements for the rental of construction machinery, construction equipment and industrial machinery; the terms and conditions of the lessee's rental agreement are expressly contradicted.
1.2 These General Terms and Conditions of Lease shall also apply to future leases of movable property with the same lessee.
1.3 Individual agreements made in individual cases with the lessee (including ancillary agreements, supplements and amendments) shall always take precedence over these terms and conditions of the rental agreement.
1.4 Legally relevant declarations and notifications, which are to be submitted by the lessee to the lessor after conclusion of the contract, must be made in writing in order to be valid.
1.5 Unless otherwise stated, all offers of the lessor are subject to confirmation.
1.6 The underlying rental agreement as well as these General Terms and Conditions of Lease shall only apply vis-à-vis an entrepreneur, a legal entity under public law or a special fund under public law pursuant to § 310 (1) sentence 1 of the German Civil Code (BGB).2. General rights and obligations of landlords and tenants
2.1 The landlord undertakes to leave the rented object to the lessee for the agreed rental period.
2.2 The lessee undertakes to use the rented object only as intended, in particular to carefully observe the relevant accident prevention and occupational safety regulations as well as road transport regulations, in particular with regard to loading and transport of the rented object, to pay the rent in accordance with the agreement, to treat the rented object properly and to return it cleaned and fully tanked at the end of the rental period.
2.3 The lessee is obliged to inform the lessor immediately upon request about the respective stand or place of use of the rented object as well as any intended change of stand or place of use.3. Provision of the rented object, default of the lessor
3.1 The Rental Firm shall provide the Rental Goods to the Hirer in perfect, operational and fully refuelled condition with the necessary documents.
3.2 If the landlord is in default with the handover at the beginning of the rental period, the lessee may demand compensation if he has demonstrably suffered damage as a result of the delay. Without prejudice to clause 5.1, in the case of slight negligence, the compensation to be paid by the Lessor for each working day shall be limited to a maximum of the amount of the daily net rental charge. After setting a reasonable period of time, the lessee may withdraw from the contract if the lessor is still in default at this time.
3.3 In the event of default, the Rental Firm shall also be entitled to provide the Hirer with a functionally equivalent rental object for the purpose of repairing the damage, if this is reasonable for the Hirer.4. Defects in the provision of the rented object
4.1 The lessee is entitled to inspect the rented object in good time before the beginning of the rental period and to give notice of any defects. The costs of an investigation shall be borne by the lessee.
4.2 Defects discernible at surrender, which do not negatively affect the intended use, can no longer be claimed if they have not been reported to the lessor in writing immediately after examination. Any other defects already present at the time of surrender must be reported in writing immediately after discovery.
4.3 The lessor shall remedy any defects complained of in due time, which were present at the time of surrender, at his own expense. At the landlord's option, he may also have the removal carried out by the tenant; in this case, he shall bear the necessary costs. The landlord is also entitled to provide the tenant with a functionally equivalent rental object, if this is reasonable for the tenant. The lessee's payment obligation shall be postponed in the event of significant impairments of the leased object by the time at which the fitness for contractual use is suspended. For the period during which the fitness is impaired, the renter shall pay only a reasonable reduced rent. An insignificant reduction in suitability shall not be taken into account.
4.4 If the landlord allows a reasonable period of grace set to him in relation to the removal of a defect existing at the time of surrender to lapse fruitlessly through his fault, the lessee has the right to withdraw from the contract. The lessee's right to withdraw from the contract shall also apply in other cases of failure of the lessor to remedy a defect present at the time of surrender.5. Limitation of Lessor's Liability
5.1 Further claims for damages against the landlord, in particular compensation for damages that have not occurred on the leased object itself, can only be asserted by the lessee in case of an intentional breach of duty by the landlord; a grossly negligent breach of duty by the landlord; or in case of an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the landlord; the culpable breach of essential contractual obligations insofar as the achievement of the contractual purpose is endangered, with regard to the foreseeable damage typical for the contract; Damage resulting from injury to life, limb or health resulting from a negligent breach of duty by the Lessor or a deliberate or negligent breach of duty by a legal representative or vicarious agent of the Lessor; if the Lessor is liable under the Product Liability Act for personal injury or material damage to privately used objects. Otherwise, liability for damages is excluded.
5.2 If, as a result of the Lessor's fault, the Rental Goods cannot be used by the Hirer in accordance with the contract as a result of failure to perform or faulty execution of before or after conclusion of the contract, the proposals and advice as well as other contractual ancillary obligations - in particular the operating and maintenance instructions for the Rental Goods - the provisions of sections 4.3 and 4.4 and section 5.1 shall apply accordingly, to the exclusion of further claims by the Hirer.
6. Rental price and payment, assignment as security for the rent debt
6.1 The calculation of the rent is based on a working time of up to 8 hours per day. Billing is based on the five-day week (Monday to Friday). Weekend work, additional working hours and difficult assignments must be reported to the landlord; they will be charged additionally.
6.2 Unless otherwise stated, all prices are quoted exclusive of statutory value-added tax.
6.3 The landlord is entitled to demand an appropriate advance payment of the rental price from the tenant at any time.
6.4 The lessee shall only have the right to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been declared final and absolute or insofar as such counterclaims are ready for decision in legal proceedings.
6.5 If the Hirer is in arrears with the payment of a due amount for more than 14 calendar days after a written reminder, the Rental Firm shall be entitled to collect the rented object after notification without recourse to the court at the expense of the Hirer, who has access to the rented object and the removal of it, and to dispose of it otherwise. The claims to which the lessor is entitled under the contract shall continue to exist; however, the amounts which the lessor has achieved during the agreed contract period, for example through other rental agreements, shall be invoiced after deduction of the costs incurred by the return and new rental.
6.6 Amounts due will be included in the current account with regard to a current account agreed between the contracting parties for deliveries - reservation of title.
6.7 The landlord is entitled to demand a reasonable non-interest-bearing security deposit from the tenant at any time.
6.8 The lessee shall assign to the lessor his claims against his client, for whose instruction the rented object is used, in the amount of the agreed rental price, less the deposit received. The lessor accepts the assignment.7. Suspension clause
7.1 If the work at the place of work for which the equipment is rented is suspended for at least ten consecutive days due to circumstances for which neither the lessee nor his principal are responsible (e. g. frost, floods, strikes, civil unrest, acts of war, orders from the authorities), this period shall be deemed to have lapsed from the 11th calendar day onwards.
7.2 The rental period agreed upon for a certain period of time shall be extended by the idle period.
7.3 The lessee shall pay the agreed percentage of the agreed monthly rent corresponding to this period for the idle period on the basis of a working day shift time of 8 hours; unless otherwise agreed, the customary commercial percentage of 75 % shall apply.
7.4 The lessee must inform the lessor immediately in writing of the suspension of the work and of its resumption in writing and must furnish the landlord with documentation on request.8. Maintenance obligation of the Hirer
8.1 The Hirer is obliged,
a) to protect the rented object from overuse in any way;
b) to carry out the appropriate and professional maintenance and care of the rented object at his own expense;
c) to announce necessary inspection and repair work in due time and to have it carried out immediately by the lessor. The costs shall be borne by the landlord if the tenant and his assistants have demonstrably observed every care provided.
8.2 The landlord is entitled to inspect the rented object at any time and, after prior consultation with the tenant, to inspect it himself or have it inspected by a representative. The lessee is obliged to facilitate the investigation of the landlord or his agent in every way. The costs of the investigation shall be borne by the hirer.9. Hirer's liability in the case of rental with operating personnel
When renting the rental object with operating personnel, the operator may only be employed sonally for operating the rental object, not for other work. In case of damage caused by the operating personnel, the landlord is only liable if he has not properly selected the operating personnel. In all other respects, the lessee shall be liable.
10. Termination of the rental period and return of the leased item
10.1 The lessee is obliged to notify the lessor in advance in writing in good time of the intended return delivery of the leased object (free notification).
10.2 The rental period ends on the day on which the rented item arrives at the Rental Firm's storage location or at an agreed other place of destination with all parts required for its use in an orderly and contractual condition, but at the earliest on expiry of the agreed rental period; Section 6.5 last half sentence shall apply accordingly.
10.3 The hirer must return the hired object in fully refuelled and cleaned condition or keep it ready for collection; Sections 8.1 b) and c) shall apply accordingly.
10.4 The return delivery shall be made during the normal business hours of the Lessor in such a timely manner that the Lessor is able to inspect the rented object on that day.11. Breach of maintenance obligation
11.1 If the Rental Goods are returned in a condition which indicates that the Hirer has not complied with the maintenance obligation provided for in Section 8, the Hirer shall be obliged to pay the amount of the rental charge as compensation until the repair work is completed which has been omitted in breach of the contract.
11.2 The scope of the defects and damages for which the lessee is responsible shall be notified to the lessee and he shall be given the opportunity to inspect them. The costs of the repair work required to remedy the defects and damage shall be charged to the Hirer by the Rental Firm in an estimated amount, if possible before the start of the repair work.
11.3 The proper return delivery of the rented object shall be deemed to have been accepted by the Rental Firm if noticeable defects have not been claimed immediately in the case of timely return delivery within the meaning of Section 10.4 and otherwise and in the case of other defects within 14 calendar days after arrival at the place of destination.12. Further obligations of the Hirer
12.1 The lessee may not surrender the rented object to a third party without the prior written consent of the lessor nor assign rights from this contract or grant rights of any kind to the rented object.
12.2 If a third party asserts rights to the rented object by confiscation, seizure or similar, the lessee is obliged to notify the lessor immediately in writing and orally in advance and to inform the third party thereof immediately by means of verifiable written notification.
12.3 The lessee must take suitable measures to secure against theft of the rented object.
12.4 The lessee shall inform the lessor of all accidents and await instructions from the lessor. In the event of traffic accidents and suspected criminal offences (e. g. theft, damage to property), the police must be called in.
12.5 If the lessee culpably violates the above provisions in 12.1. to 12.4. the lessee shall be obliged to compensate the lessor for all damages resulting therefrom.13. Termination
a) The rental agreement concluded for a certain period of time cannot be terminated by either party.
b) The same applies to the minimum rental period within the framework of a rental agreement concluded for an indefinite period of time. After expiry of the minimum rental period, the lessee has the right to terminate the rental agreement concluded for an indefinite period of time with one day's notice.
c) In the case of rental contracts for an indefinite period of time without a minimum rental period, the notice period is one day if the rental price per day is two days, if the rental price per week is one week, if the rental price per month is agreed upon.
13.2 The landlord is entitled to terminate the rental contract without notice and without notice.
a) in the case of item 6.5;
b) if it becomes apparent to the lessor after conclusion of the contract that the landlord's entitlement to payment of rent is endangered by the lessee's lack of ability to pay;
c) if the hirer does not use the hired object or part of it in accordance with the immunity of the hirer without the hirer's consent, or if he/she moves it to another place outside the Federal Republic of Germany without the hirer's prior written consent;
d) in cases of violations of Clause 8.1 and Clause 12.1.
13.3 If the lessor makes use of his right of termination according to section 13.2, section 6.5 in connection with sections 10 and 11 shall apply accordingly.
13.4 The lessee may terminate the rental agreement after giving notice without notice if use of the leased object is not possible in the long term for reasons for which the lessor is responsible.14. Loss of the rental object
If it is culpably or for technical compelling reasons impossible for the lessee to comply with the obligation to return the rented object according to section 10.3, he is obliged to pay compensation.
15. Place of Performance and Jurisdiction
15.1 This contract is subject to the laws of the Federal Republic of Germany.
15.2 The place of performance for all services arising from or in connection with the contract shall be the business domicile of the lessor or the domicile of his branch office which has concluded the contract.
15.3 If the Hirer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship in connection with Fischer - Jung Bau- und Recyclingtechnik GmbH as well as Fischer - Jung Miet -, Vertriebs - und Service GmbH in Dresden. For all disputes arising directly or indirectly from the contractual relationship in connection with Fischer - Jung GmbH and Fischer - Jung Aufbereitungstechnik GmbH in Krefeld.
*In case of translation errors, the German GTC apply.
1. General Information
1.1 These conditions apply to repair work (repairs) on construction and industrial machines, construction equipment and their parts. Amendments to the contract, amendments and ancillary agreements require written confirmation by the contractor in order to be valid.
1.2 The same shall apply to conflicting terms and conditions of the client without being expressly rejected.
1.3 Upon transfer of the repair order, the approval for test drives and trial runs shall be deemed to have been granted at the same time.2. Specification of costs, cost estimate, cancellation of the client
2.1 As far as possible, the customer will be informed of the estimated repair price when the contract is concluded, otherwise he can set cost limits. If the repair cannot be carried out at these costs or if the execution of additional work or the use of additional parts or materials proves necessary, the costs may be exceeded by 20 %.
2.2 If, when the work is carried out, it turns out that, in the interest of proper execution, the costs are exceeded by more than 20%, the client must be informed of this, whose consent is deemed to have been given if he does not immediately object to an extension of the work.
2.3 If a cost estimate with binding price estimates is requested before the repair is carried out, this must be expressly requested by the customer. Such a cost estimate shall only be binding if it is submitted in writing and expressly designated as binding.
2.4 If the customer terminates the contract, either due to exceeding the cost estimate or for other reasons, he must, however, pay the costs incurred up to then, including the expenses for ordered and already procured spare parts and the profit.3. Due date and payment of the invoice amount
3.1 The invoice shall be due and payable upon completion or acceptance of the repair, at the latest, however, on the day of receipt of the invoice. The invoice amount is to be paid without deduction.
3.2 The contractor may demand advance payment.
3.3 Complaints about an invoice must be made in writing and within 14 days of the invoice date.
3.4 Retention of payments or offsetting against claims of the client, which are disputed by the contractor, are not recognized and are not legally established, is excluded.
3.5 The prices do not include value added tax. This will be invoiced separately by the contractor.4. Cooperation of the client
4.1 In carrying out the repair work, the Client shall provide support to the repair personnel at his own expense.
4.2 The protection of persons and objects at the place of repair is the responsibility of the customer.
4.3 The client has the duty to ensure appropriate working conditions and safety at the place of repair.
4.4 The repair manager must be informed of the safety regulations to be observed - as far as necessary. Any violations of the safety regulations by the repair personnel must be reported to the contractor by the customer.5. Technical assistance provided by the client
5.1 If necessary, the client is obliged to provide sufficient numbers of suitable assistants at his own expense and for the necessary time.
5.2 The assistants shall follow the instructions of the persons entrusted with the management of the repairs by the contractor. The contractor does not assume any liability for the assistants provided.
5.3 The customer is obliged to provide the necessary energy (e. g. lighting, operating power, water) including the necessary connections for the repair at his own expense.
5.4 If necessary, the client shall provide theft-proof rooms for the storage of the repair personnel's tools and heatable lounges at his own expense.
5.5 All materials and operating materials shall be provided by the customer at his own expense and all other actions shall be carried out which are necessary for adjusting the object of repair and for carrying out testing.
5.6 The customer must ensure that repair work can be started immediately after the arrival of the repair personnel. Any delays for which the client is responsible shall be at his expense.
5.7 If the customer fails to meet his obligations, the contractor shall be entitled, but not obliged, to carry out the actions in his place and at his own expense.
5.8 The legal rights and claims of the contractor remain unaffected in all other respects.6. Time limit for carrying out the repair
6.1 Information about the repair periods is based on estimates and is therefore not binding.
6.2 In the event of unforeseeable operational hindrances, e. g. work stoppages, absenteeism due to illness of skilled workers, procurement difficulties with spare parts, delay in delivery or performance by subcontractors as well as in the event of official intervention, and also in the event of force majeure or industrial disputes, binding delivery dates shall be reasonably extended.
6.3 Any demonstrable damage caused to the client by the contractor's delay shall be reimbursed, but in the case of slight negligence only up to a maximum of 5% of the net repair price. Without prejudice to § 12 No. 3, all further claims for compensation are excluded in the case of slight negligence.
6.4 If the Customer grants the defaulting Contractor a reasonable period of time - unless there is a statutory exception - and if this period is not observed, the Customer shall be entitled to withdraw from the contract in accordance with the statutory provisions. Further claims do not exist - without prejudice to § 12 No. 3.7. Acceptance of a repair, acceptance by the client
7.1 The Contractor shall notify the Principal of the completion of a repair. The sending of the invoice is also considered as notification. Acceptance shall take place within 2 weeks after notification of the notification.
7.2 If the repair has not been objected to at the time of acceptance by the client or if the acceptance has not been carried out within a reasonable period, the subject matter of the contract shall be deemed to have been duly accepted.
7.3 In the event of delay on the part of the client in taking over the goods, the contractor shall be entitled to charge the client storage costs or, in this case, to store the subject matter of the contract at a third location.8. Risk bearing and transport
8.1 Once the client has been notified of the completion of the repair, the risk shall pass to him.
8.2 The return transport of the repaired object is principally the responsibility of the customer, who also bears the risk of loss or damage during transport.
8.3 If transport is taken over by the contractor as agreed, this shall be at the expense and risk of the customer, even if the transport is carried out by vehicles of the contractor.
8.4 The objects of the order handed over by the client for repair are not insured against fire, theft, transport and storage damage, etc.. These risks are to be covered by the client or are to be covered by the contractor at the express request and expense of the client.9. Retention of title, Extended Lien
9.1 The right of ownership of the installed aggregates, spare parts and accessories remains, as far as it can be reserved, with the contractor until complete payment has been made.
9.2 Due to his claim arising from the repair contract, the contractor is entitled to a lien on the object of repair of the customer which has become his property as a result of the contract. The right of lien may also be asserted for claims arising from work carried out earlier, spare parts deliveries and other services insofar as they are connected with the object of repair. The lien shall only apply to other claims arising from the business relationship if these claims are undisputed or have been legally established.
9.3 As a precautionary measure, in the event that he is not the owner of the repaired equipment or the machine, the Principal shall assign to the Contractor the claim and the expectation of transfer of ownership by way of reassignment after the complete redemption of existing claims by third parties and shall authorise the Contractor to irrevocably fulfil this obligation on behalf of the Principal. However, the contractor shall not be obliged to perform in lieu of the principal.10. Used Parts
10.1 The Customer shall be responsible for the disposal of old parts and other objects which are no longer usable. Insofar as legal regulations are enacted which stipulate otherwise, the client undertakes to make an appropriate agreement with the contractor regarding the exploitation. It is to be assumed that the contracting parties will make use of third parties to fulfil their obligations.
11. Defect Claims
11.1 The contractor shall be liable to the customer for any repair defects in such a way that he shall, at his discretion, remedy the defects by repairing them in a workshop or at the location of the object to be repaired. Further claims of the client are excluded - without prejudice to No. 3 and § 12.
11.2 Warranty claims become time-barred 12 months after acceptance of the repair. The detection of such defects must be reported to the contractor immediately in writing. If, without the consent of the Contractor, the Principal has carried out repair work improperly himself or has had it carried out by a third party, the Contractor shall not be liable. The same shall apply if, at the request of the customer, the replacement of parts requiring replacement is not carried out.
11.3 If the Contractor - taking into account the statutory exceptions - allows a period of grace set by the Contractor for subsequent performance to elapse without result, the Principal shall be entitled to the statutory right to reduce the purchase price. This right of reduction also exists in other cases of failure of subsequent performance. Only if the repair is demonstrably of no interest to the customer despite the reduction in price can the customer withdraw from the contract according to the statutory provisions.
11.4 Of the direct costs arising from subsequent performance, the contractor shall bear the costs of the replacement part, including shipping, as well as the reasonable costs for dismantling and installation, provided that the complaint is to be regarded as justified.12. Other Liability of the Contractor and Disclaimer
12.1 If the subject matter of the order cannot be used by the customer in accordance with the contract due to fault on the part of the contractor as a result of failure to carry out proposals and advice before or after conclusion of the contract or due to other contractual secondary obligations - in particular instructions for operation and maintenance of the subject matter of the order - the provisions of §§ 11 para. 1 - 4 and 12 para. 3 shall apply accordingly to the exclusion of further claims by the customer.
12.2 In the case of material damage caused by the contractor through culpability outside of liability for defects, the contractor shall be liable. In the case of slight negligence, liability shall be limited to the reason and amount in accordance with the terms and conditions and the amount of a liability insurance policy taken out or to be taken out. If no liability insurance has been taken out, liability for slight negligence is limited to the amount of the fee for the repair.
12.3 Beyond these provisions, damages, including indirect damages, of any kind and irrespective of the legal grounds on which they are asserted, shall only be compensated by the contractor - In the case of gross negligence, - in the case of injury to life, limb or health, - in the case of culpable breach of essential contractual obligations, insofar as the attainment of the contractual purpose is endangered, with regard to foreseeable damage typical of the contract, - with regard to defects that were fraudulently concealed or - with regard to defects whose absence the contractor has guaranteed, - in cases where liability is assumed for personal injury or material damage to privately used objects in accordance with the German Product Liability Act (Produkthaftungsgesetz) in the case of defects to the subject matter of the contract. Otherwise, liability is excluded.13. Place of Jurisdiction
13.1 This contract is subject to the laws of the Federal Republic of Germany.
13.2 The place of performance for all services arising from or in connection with the contract shall be the place of business of the lessor or the registered office of his branch which has concluded the contract.
13.3 If the Hirer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship in connection with Fischer - Jung Bau- und Recyclingtechnik GmbH as well as Fischer - Jung Miet -, Vertriebs - und Service GmbH in Dresden. For all disputes arising directly or indirectly from the contractual relationship in connection with Fischer - Jung GmbH and Fischer - Jung Aufbereitungstechnik GmbH in Krefeld.
*In case of translation errors, the German GTC apply.