General terms and conditions
General terms and conditions of business for international rental – VMC 21 d.o.o.
1. Scope of application
a) The following General Terms and Conditions of Business shall exclusively apply to all our supplies (including subsequent orders) and services (including consultancies). Contradictory terms and conditions of procurement shall require our written acknowledgement and shall also not be acknowledged by acceptance or performance of the order.
b) Our General Terms and Conditions of Business shall only apply towards enterprises, public-law entities or public-law funds in the sense of § 310 subsection 1 German Civil Code.
c) Delivery in the sense of the present terms and conditions shall also be assembly and other supplementary services.
d) The regulations in the main contract (regularly in the form of an order confirmation) shall prevail over the present terms and conditions.
2. Quotation/conclusion of contract
a) Our quotations shall be subject to change without notice. Information contained in quotations and in enclosed documents concerning dimensions, weights, load-bearing capacity and other product properties shall not portray guarantees or assured properties. They shall only become properties of the object of rental and integral parts of the contract if they have been stated in the order confirmation.
b) The contract shall only originate through our written order confirmation, in any case however upon take-over of the object of rental by the borrower.
c) The contract shall be subject to the suspensive condition that all necessary official approvals for the transport and the import of the object of rental to the country of destination in question are granted.
3. Price / costs and taxes / payment / liquidated damages / offset / right of retention
a) Our prices shall apply exclusive of the value added tax to the statutory amount on the date of maturity.
b) To the extent that nothing to the contrary results from the rental agreement or order confirmation, our prices shall apply “ex works” exclusive of other costs and public dues, in particular packaging, transport, dismantling and assembly costs. If ground tax, water, waste water, refuse, test fees, fees for building permits or other public-law dues have to be paid as a result of or subsequent to positioning of the objects of rental, they shall be borne by the borrower, at least in the internal relationship. The same shall apply to the land acquisition tax originating as a result of the positioning of the object of rental or its later acquisition.
c) If we accept cheques or bills on the basis of a specific agreement, this shall merely be made by way of fulfilment; all any and cheque or bill fees shall be charged to the customer.
d) If no other agreements have been made, the rental shall be paid in advance for the month in progress by no later than the 3rd working day (reaching us) for contracts in which the rental is to be paid monthly.
e) If no written rental agreement is (yet) available at the time of the agreed delivery of the object of rent, the rental shall be paid from the time of delivery to the extent not agreed to the contrary. The duty to rental payment shall commence in the event of setting the start of rental by a calendar day with the date of the start of rental, to the extent that provision of the objects of rental does not take place for reasons for which we are answerable.
f) If the rental agreement is dissolved for reasons for which the borrower is answerable before the planned hand-over date (for example by withdrawal), the borrower shall pay in the event of dissolution
The borrower shall remain free to prove that no or lower damage was incurred. In the individual case, we shall be allowed to prove distinctly higher damage.
g) Failure to comply with agreed payment terms, not only inconsiderable arrears in payment and a jeopardy to our claim to consideration only becoming apparent following the conclusion of the contract as a result of the customer’s lack of solvency, for example by an application for opening of insolvency proceedings against the customer’s assets, shall entitle us to postpone outstanding supplies and only to perform against advance payment or provision of collateral. If the customer fails to comply with our request to effect consideration or to provide collateral at its choice contemporaneously against supply within a suitable period, we can withdraw from the contract following expiry of the period, apart from this if the statutory preconditions have been fulfilled. The jeopardy of our claim to consideration for which the customer is answerable shall further entitle us to make all our other claims against the customer due for payment immediately to the extent that we have already rendered our service.
h) Offset with counterclaims by the customer has been ruled out to the extent that the counterclaims are not legally effective, undisputed or acknowledged by us. A right of retention has also been ruled out to the same scope.
i) Necessary repair and maintenance work not caused by us shall not release the borrower from the obligation to payment of the rental.
j) If the borrower is in arrears with its payment duties, a lump-sum of € 7.50 shall accrue to us for each of the following reminders. We also reserve the right to claim damages from arrears exceeding this.
4. Rental deposit
The borrower shall be obliged to provide a rental deposit before the start of rental in cash or by unconditional, unlimited, irrevocable and absolute bank surety or surety from an insurance company or an irrevocable letter of credit to the amount stated in the main contract.
5. Assembly / assembly date / building site / start of rent / force majeure / transport / use of planning services
a) Compliance with the delivery and assembly dates and the start of rental shall presuppose final clarification of all technical details and receipt of the other documents, official (export) approvals and permissions to be procured by the borrower and compliance with the agreed payment terms and other duties. In particular, all the information and documents necessary for the transportation of the object of supply and its importation into the country of destination are to be provided by the customer. If these duties are not fulfilled by the customer in good time, the period shall be extended suitably to the extent that we are not answerable for the delay. Application for and obtaining of necessary official or other approvals – also taking export control provisions into account – shall not be part of our service duties unless contractually agreed to the contrary. In the event of necessary (export) approvals etc. permanently not being granted, granting of the approvals already lasting for 90 or more days or if it is foreseeable that they will not be granted within a period of 90 days, the contracting parties shall be entitled to terminate the contract as an entirety insofar as abiding by a part of the contract which can be performed cannot be reasonably expected of a party. Possible further-reaching claims shall remain unaffected.
b) War, unrest, legal industrial disputes, high-handed measures, lack of energy and raw materials, transport and unavoidable operational disturbances and all other cases of force majeure (also with our suppliers) shall release us from the duty to supply for the duration of the disturbance and to the scope of its effects. The reason for the prevention and its stoppage shall be notified without delay. The above 5 a) sentence 5 shall apply mutatis mutandis. If we are not (co-)culpable, further-reaching claims shall expressly be ruled out.
c) Risk shall pass to the customer as soon as the object of rental has been handed to the transport company in our warehouse; this shall also apply if we bear the costs of transport. If we use our own means of transport in this case, risk shall pass to the customer as soon as the object of rental has been unloaded from the means of transport at the building site or with the borrower. If we have also taken on erection or assembly of the object of supply, risk shall only pass upon hand-over. If no obligation to provide exists, we shall cover the supply – by a matching request by the customer – by transport insurance, the costs of which are borne by the customer. The borrower’s risk and cost bearing duty shall end with the return of the object of rental to our warehouse to the extent that we do not use our own means of transport and/or have taken on dismantling. Section 12. a) below shall remain unaffected.
d) The customer shall be obliged to ensure usability of the building site for assembly at its expense before the start of construction, in particular by the building site being cleared and the soil being compressed flat and properly, sufficient free spaces and access routes and the agreed working equipment and the necessary current and water connections being provided and also all external connections to the supply and disposal systems of the object of rental being available. The connections shall be produced by the borrower at its own expense.
e) If there is the possibility of pipe, supply and electricity lines of any kind being damaged by the erection of the objects of rental or positioning of tents, the borrower shall notify us of their course in good time before the start of assembly by a plan with depth and axis statements. The borrower shall ensure that supply lines, in particular overland (electricity) lines running across or alongside the place of erection planned by the borrower have the minimum distance from the object of rental prescribed by legislation or local regulations.
f) If assembly is done with ancillaries of customer at the latter’s request, it shall also bear the costs for the use of its staff and register the helpers with the responsible employers’ insurance scheme. We shall have no power of instruction with regard to the customer’s ancillaries; it shall exclusively be with the customer.
g) If the customer does not commission us with construction following planning of a system, it shall only be entitled to forward the planning services rendered by us to third parties following our prior consent. For the granting of consent, presentation by the customer of the written commissioning by the third party with the construction planning and performance of the system already planned by us shall be necessary. A further precondition shall be that the third party indemnifies us towards the customer for all and any liability as a result of negligently defective planning of the system.
6. Defects in the object of rental
a) We shall remedy defects reported in good time which are not only inconsiderable at our expense to the extent that the borrower is not answerable for the defect. We shall also be entitled to undertake remedying by provision of a functionally equivalent object of rental. If the notification of defects is unjustified, we shall be entitled to demand the reimbursement of the expenditure incurred as a result from the customer.
b) Reduction of the rental has been ruled out unless an assured property is missing or later becomes missing. Our duty to provide and to keep the object of contractual rental in a contractual condition shall remain unaffected.
c) Our liability for damages, inter alia due to defects in the object of rental, shall be based on the provisions of Sections 7 and 8 below.
7. Lender’s liability / insurance / building ground risk
a) We shall be liable according to the statutory directives if we culpably breach cardinal contractual duties. Cardinal contractual duties shall be those giving the contract its character and in compliance with which the contracting partner may trust, which create the preconditions for fulfilment of the contract and are indispensable for achievement of the purpose of the contract.
b) We shall be liable for damages according to the statutory directives for deliberate or grossly negligent breaches of duty, also for deliberate or grossly negligent breaches of duty by our statutory representatives or vicarious agents, and also in the case of impossibility for which we are answerable, for considerable breaches of duty and for deceitful conduct.
c) In the aforementioned cases in 7. a) und b), our liability shall be limited to the foreseeable damage typically occurring, to the extent that we are not guilty of malice aforethought.
d) We shall not be liable for damages for initial defects of the object of rental according to § 536 a subsection 1 1st alt. German Civil Code through no fault of ours.
e) In the event of injuries to life, limb and health by us, our statutory representatives or vicarious agents, we shall be liable according to the statutory directives. The same shall apply if we have assumed a guarantee or a procurement risk and also in a lack or loss of an assured property and in the event of liability according to the Product Liability Act.
f) We shall only be liable for objects included by the customer or third parties if we are guilty of malice aforethought. To this extent, conclusion of insurance against breaking and entering, theft, fire, water and similar risks shall be a matter for the borrower.
g) The customer shall bear the building ground risk. If we have also taken on assembly of the object of delivery or have inspected the building ground, our duty to inform the customer of defects in the building ground recognised by us or visually to be established and their possible consequences shall remain unaffected. We shall have no further-reaching examination duty. In particular, we shall not be liable for defects in the construction performance if their cause is unsuitability of the building ground for which we are not answerable.
h) Further-reaching liability for damages and/or indemnification than provided for in the above Section 7. a) to g) has been ruled out – without regard for the legal nature of the claim being made. This shall in particular apply to claims to damages from culpa in contrahendo, on account of other breaches of duties or on account of claims from tort for indemnification of property damage according to § 823 German Civil Code, or for damage resulting from the fact that the borrower combines the object of rental with third parties’ products.
i) If liability for damages has been ruled out or limited towards us, this shall also apply to the personal liability for damages of our employees, workers, fellow-workers, representatives and vicarious agents.
j) A reversal of the onus of proof has not been connected with the above regulations in 7. a) to i).
8. Barring by limitation
a) To the extent not regulated to the contrary in 8. b) to d) below, the regular period of barring by limitation for claims accruing against us shall be 24 months pursuant to § 195 German Civil Code.
b) Our claims to damages on account of changes or deteriorations to the object of rental shall be barred in twelve months.
c) The borrower’s claims to reimbursement of expenditure or permission to remove an amenity shall be barred twelve months after the ending of the rental relationship.
d) As a deviation from the above regulations in 8. a) to c) the statutory periods of barring shall apply to the extent that a case according to 7. a), 7. b) or 7. e) above exists.
9. Borrower’s liability / examination, maintenance and upkeep costs
a) The borrower shall be liable for all changes, which shall be inadmissible without our consent, damage and destructions of the object of rental unless they are based on customary wear and tear or force majeure (cf. Section 5. b), on other reasons for which the borrower is not answerable or to the extent that they are regulated by an insurance maintained by us. The borrower will only use the object of rental as intended, not take it to a place other that agreed and return it following the expiry of the rental period in a contractual, empty and swept condition, in particular complying with the directives according to Section 10. c) to g).
b) Accordingly, the borrower shall be liable for actions or omissions of its employees or agents or other persons coming into contact with the object of rental within the framework of its intended use.
c) If the object manifests damage, contamination or other defects for which the borrower is answerable (cf. Section 9. a) and Section 10. a), c), e) to h)), the scope shall be notified to the borrower without delay and it shall be granted the opportunity of examination. The costs of the upkeep work necessary to remedy the defects shall be notified to the borrower by us as an estimate, if possible before the start of the upkeep work.
d) If there are still objects in the object of rent at the end of the rental relationship in breach of agreement, we shall be entitled to store these objects in situ or to keep them or have them kept at the borrower’s expense.
e) The borrower shall be obliged to pay the contractually agreed rental until remedying of contamination in breach of 9. a) sentence 2 above or damage or defects in accordance with 9. c) above provided the remedying is done by us without undue delay.
f) With a planned contract term of more than two months, the borrower shall bear the costs of maintenance and upkeep work on the object of rental, even if they are not to be ascribed to the use in rental, to the extent that they do not exceed half a net monthly rental in the individual case and no initial defects are affected. The upper limit for the costs to be borne by the borrower for such maintenance and upkeep work shall be 10% of the net rental actually owed in the period of the rental year, in which context the rental year starts from the time of handover.
g) If (electrical) systems and operating equipment are to be examined on the object of rental at regular intervals according to statutory accident prevention directives, e.g. “Electrical Systems and Operating Equipment“ (BGV/GUV-V A 3) and their implementation instructions, the borrower shall bear these examination costs to the extent that they are exclusively based on expired periods of contract rental and relate to the premises covered by the use under rental. To this scope, possible maintenance costs shall also be borne by the borrower.
10. Specific borrower’s duties
Notwithstanding the other contractual and statutory duties, the borrower shall
a) ensure immediate clearance of any snow loads from the roof,
b) take all reasonable security measures, as in miscellaneous cases of force majeure,
c) refrain from construction changes to the tents and objects of rental,
d) clear the gutters on the parapet wall from dirt and foliage regularly and at the end of the rental,
e) notify us without delay if a third party claims rights to the object of rental,
f) empty waste water tanks and all water boilers during the period of rental as required and immediately at the end of use of rented sanitary containers or other sanitary amenities,
g) connections and sources of energy.
The borrower may not attach additional connections to the light systems. Sources of energy may only be attached to the places provided for this with expert laying of separate lines.
11. Sub-rental / assignment
a) Each sub-rental or other provision for use to third parties shall require our prior written consent.
b) For a case of justified or unjustified provision for use, the borrower here and now assigns all claims accruing to it against the user from the provision relationship to us by way of security; we accept said assignment. If the borrower falls into arrears of payment towards us, we shall be entitled to inform the sub-borrower of the assignment and to collect the claims ourselves. In the event of unjustified provision for use, we shall always be entitled to inform the sub-borrower of the assignment and to collect the claims ourselves. In the cases of Section 11. b) sentences 2 and 3, the borrower shall additionally give us all the information and hand over all the documents required in order to assert the assigned claims.
c) Assignment of rights from the present agreement shall only be permitted for the borrower following our express consent. § 354 a German Commercial Code shall remain unaffected.
12. Rental term / termination / periods of notice / termination without notice / payment for use
a) If we have also taken over the assembly and dismantling of the object of rental, the pure rental period shall commence on the day of start of assembly and end on the day of dismantling/return of the object of rental, albeit not before the time of an agreed end of the contract. Sections 3. e) and 9. e) shall remain unaffected.
b) Termination of the rental relationship must cogently be done in a textual form.
c) For limited rental terms of less than one month, the period of notice shall be three days before the expiry of the agreed rental term, for limited rental terms of one month or longer, the period of notice shall be two weeks before the expiry of the agreed rental term. If the rental relationship is not terminated in good time or the object of rent used by the borrower over the expiry of the term, the limited rental relationship shall convert into an unlimited rental relationship without any further agreement between the parties being necessary.
d) Premature ending of a limited rental relationship by ordinary termination has been ruled out. Unagreed, premature return of the object of rental shall leave the duty to pay the rental unaffected to the extent that no interim or further rental is possible for us.
e) For unlimited rental relationships, the period of notice shall be two weeks as per the end of a month, to the extent that no shorter period has been agreed in the individual case.
f) The right to extraordinary termination of the rental agreement shall remain unaffected by the above regulations. It shall in particular accrue to us if the borrower is in arrears with contractual payment duties for longer than ten days; the borrower uses the object of rental improperly without our consent or takes it to a place other than the agreed place of rental or undertakes further or sub-rental without us having consented.
g) In the event of our termination without notice due to a breach of duty by the borrower, the latter shall pay a monthly payment for use to the amount of the contractually agreed monthly rental to us until the end of the term provided for in the contract. However, amounts which we have achieved within the agreed term of the agreement, e.g. by other rental, or did not achieve through gross negligence shall be credited to the borrower and offset against the costs additionally incurred by us by termination without notice or new rental of the objects of rental.
13. Insurance / insurance at the borrower’s expense
a) We insure the objects of rental against the following risks at the borrower’s expense: fire, lightning, explosion, breaking and entering, storm damage, vandalism, flooding and theft. The monthly costs incurred by the borrower herefrom result in detail from the rental agreement.
b) The borrower shall be free to insure the aforementioned risks in 13. a) itself. In the event of own insurance by the borrower, the duty to payment according to 13. a) above shall not apply if the borrower confirms to us without delay in writing immediately after conclusion that it is insured against the above risks to a sufficient extent. If the borrower fails to make the immediate written confirmation according to sentence 2 above, insurance by us shall remain in force, as shall the matching duty to bear costs by the borrower. This shall also apply if we do not receive any written proof of the concluded insurances from the borrower within a suitable period upon request according to 13. c) below.
c) We can demand written proof of the concluded insurances from the borrower following receipt of its confirmation according to 13. b) above.
d) Following knowledge of such damage as described in Section 13. a) above, the borrower undertakes to bring charges with the competent police authority without delay and also to inform us of this.
e) In addition, the borrower undertakes to reimburse the retainer to the amount of € 500.00 deducted by our insurance company with a view to
each individual object of rental if the damage has been caused culpably by the borrower, its employees or authorised agents or other persons who have come into contact with the object of rental within the framework of intended use.
f) Section 7. f) above shall remain unaffected.
14. Rental of fire extinguishers
a) To the extent that we (also) hire fire extinguishers, examination of whether the borrower’s company demands provision with fire extinguishers or the scope to which or the place at which the fire extinguishers are to be installed shall not be part of the service owed by us.
b) The borrower shall permit access to its premises for our fire extinguisher suppliers for performance of the maintenance of rented fire extinguishers, which is done at yearly intervals.
c) Free for the time being.
d) If a hired fire extinguisher is used, the borrower shall inform us about this without delay, so that the fire extinguisher(s) taken into operation
can be filled again or replaced. We shall not be liable for damage resulting from an omission to notify us.
15. Choice of law / place of performance / prevalence
a) The contract shall be governed by the substantive law of the Federal Republic of Germany, ruling out UN purchase law (CISG).
b) To the extent that nothing to the contrary results from the order confirmation, Bad Rappenau-Fürfeld shall be place of performance.
c) In the event of deviations of the German version of our “General Terms and Conditions for Rental International” from the English version, the contents of the German version shall be decisive.
d) If individual provisions of the present General Terms and Conditions of Business are ineffective, this shall not affect the validity of the remainder of the contract.
16. Agreement on place of jurisdiction with borrowers with a registered office in the European Union, Switzerland, Iceland, Norway, and third countries: If the borrower has its registered office/statutory headquarters in a member state of the European Union, Switzerland, Iceland, Norway, and third countries, all disputes resulting directly or indirectly in connection with the present contract or its validity shall be decided before the state courts in Heilbronn/Neckar. However, we shall also be entitled to sue the borrower at the court at its registered office.
17. Arbitration agreement with borrowers outside the EU, Switzerland, Iceland, Norway, and third countries.
a) All disputes resulting in connection with the present contract or its validity shall be finally decided according to the arbitration rules of the German Institution for Arbitration (DIS) ruling out access to ordinary courts of law provided the borrower has its corporate registered office or statutory headquarters outside the states of the European Union or outside Switzerland, Iceland, Norway, and third countries. Section 17 f) and g) below shall remain unaffected.
b) The location of the arbitration proceedings is Bad Rappenau-Fürfeld.
c) The number of arbitrators shall be one if the value of the arbitration does not exceed € 250,000.00, otherwise three. If the parties cannot agree on the value of the arbitration, the DIS shall decide on the number of arbitrators upon written application by one of the parties.
d) If three arbitrators have been appointed for the decision, each party shall name one. These two arbitrators shall then unanimously appoint the chairman of the arbitration board.
e) The language of the proceedings shall be German. Section 15. a) above shall apply accordingly.
f) As long as we have not yet acceded to arbitration proceedings running in the same matter without a complaint, we shall at our choice be entitled to appeal to the competent state courts in the customer’s country. If such a claim is submitted, the competence according to 17 a) above shall no longer apply.
g) We shall further be entitled to appeal to the competent state courts in the customer’s country if an arbitration court basically competent and appealed to according to 17. a) above has not been constituted within three months from the time of the first appeal to it. Section 17. f) sentence 2 above shall apply accordingly in such a case.
VMC 21 d.o.o.
CEO Matjaž Vider
General Terms of Business for Sales/Export – VMC 21 d.o.o.
a) The following General Terms of Business apply exclusively to all our supplies and services, including future business. Contrary conditions of purchase must be accepted by us in writing.
b) Supplies in the meaning of these Terms of Business also include erection and assembly work, and other services provided.
a) Our quotations are without obligation. Data referring to dimensions, weights, loads and other product properties featured in quotations and attachments only become part of the contract when featured specifically in the order confirmation.
b) The contract only becomes effective with our order confirmation, but in any case on execution of the delivery.
c) It is the exclusive responsibility of the customer to procure planning permission and other official permits, particularly import licences and other documents. However, the validity of the contract is independent of such permits being granted.
d) If the goods have to be produced by us or otherwise processed/finished, and if the purchaser has submitted a specification for this purpose, the purchaser exempts us from all loss, damage, costs or other expenditure which we have to pay or which we are prepared to pay because the contractual processing or finishing of the goods on the basis of the customer’s specification proves to be a violation of a patent, copyright, trademark or any other protective third-party rights.
3. Price / Payment / Precluded Offsetting or Assignment
a) Payments are to be made in euro. Statutory value added tax is to be added to our prices where applicable, together with other taxes, customs duties and other public fees in the customer’s country. Shipping and freight costs, insurance premiums and assembly costs are to be paid by the customer. Notwithstanding other agreements, payments by the customer are to be made as follows:
Repair and assembly costs are to be paid on receiving the corresponding invoices.
b) If we receive cheques or bills on the basis of a special agreement, this is only on account of performance; any cheque or bill fees are to be paid by the purchaser. Any bank fees or other costs incurred because payment is made outside Germany and/or in any other currency than the euro or associated with the opening and confirmation of Letters of Credit, are to be paid by the purchaser. Any Letters of Credit must correspond to the Uniform Directives and Customs for Document Letters of Credit issued by the International Chamber of Commerce, Paris, in the version of the amendment published in 1993 with Publication 500, and any future amendments.
c) Failure to observe agreed payment conditions, together with any essential deterioration in the customer’s assets after the contract has been concluded, resulting in a risk with regard to the counter-performance owing to us, entitles us to cease pending deliveries and only proceed on advance payment or provision of normal bank securities. Such circumstances also entitle us to demand all other outstanding claims from the customer with immediate effect.
d) Offsetting against counter-demands and the enforcement of a right of retention by the purchaser is precluded, insofar as the counter claims are not legally effective, undisputed or accepted by us. The customer is however entitled to a right of retention on the basis of counter-claims from the same contractual relationship.
e) The rights and obligations of the contracting parties cannot be assigned, apart from assignment of claims on the purchase price to our banks or insurance companies.
4. Deliveries / Force majeure / Transport
a) The delivery period does not commence before final clarification of all technical details or receipt of the documents and official permits to be procured by the customer, together with the agreed down payment.
b) War, uprisings, legal labour disputes, dispositions from on high, energy and raw material deficits, traffic disturbances and unavoidable operational disturbances together with all cases of force majeure (also encountered by our suppliers) release us from our obligation to deliver for the duration of the disturbance and to the extent of its effects; this also applies insofar as such events make it unprofitable to execute the business in the long term. When such circumstances prevail, we can withdraw from the contract totally or partially without the purchaser having any claim to damages. We can only invoke such hindrances to performance if we have notified the purchaser of these circumstances without delay. If the hindrance lasts longer than three months, after setting an appropriate period of grace the purchaser is also entitled to withdraw from the section of the contract which has not yet been fulfilled.
c) Risk passes over to the customer as soon as the delivery goods have been handed over to the transport company in our warehouse. This also applies to such business where we pay the transport costs. If we use our own means of transport, then risk passes over to the customer as soon as the delivery goods have been unloaded from the means of transport to the building site. The customer is responsible for concluding transport insurance or any other form of insurance.
5. Guarantee for new purchased items / subsoil risk
a) The purchaser must report obvious faults and those detected by reasonable tests together with incorrect deliveries within seven working days after delivery.
b) In the case of justified complaints, we shall repair or replace the corresponding parts at our choice. If the repairs are not successful within an appropriate period of time or if the replacement delivery is faulty, then the customer can insist on a reduction in the payments or, if the use of the delivered goods is impaired by more than a negligible extent, or on rescinding the contract.
c) The guarantee for movable goods amounts to six months, commencing with delivery of the goods to the purchaser. This is a limitation period and applies to claims for compensation for consequential damage, insofar as no claims are enforced for tortuous acts.
d) The purchaser bears the subsoil risk.
a) Insofar as we have negligently violated an essential contractual obligation, we are only liable for compensating the damage foreseeable on concluding the contract.
b) If we infringe other (not essential) contractual obligations or statutory obligations, the purchaser can only demand damages if we are guilty of wilful intent or gross negligence. This also applies to all claims for culpa in contrahendo, violation of secondary obligations or tortious acts. If we have failed to fulfil the contract totally or partially, then we are liable for immediate damage as per lit. a); we are only liable for indirect damage and consequential damage if we are guilty of wilful intent or gross negligence, unless the liability is based on an assurance according to which we have also assumed the risk for such damage. Our liability for wilful intent and fraud remains unaffected. All liability is restricted to the damage foreseeable on
concluding the contract.
c) The disclaimers and restrictions as per lit. a) and b). do not affect our liability according to the product liability law or other claims resulting from producer liability. Furthermore, thesedisclaimers and restrictions do not apply if and insofar as the damage is covered by one of our liability insurance policies.
7. Reservation of ownership
a) We reserve ownership to the delivered goods (reserved goods) and to the documents accompanying the delivered goods for as long as claims of any kind are still outstanding on the purchaser from the present and future business transactions. For current account transactions, this reservation of ownership also safeguards our corresponding balance claims. In the event of delayed payments or sustained diminution of the purchaser’s credit standing, we are entitled to take back the reserved goods and corresponding documents as a temporary measure at the purchaser’s costs, even without exercising the right of withdrawal and without setting a period of grace.
b) The purchaser can resell the reserved goods in normal business transactions, or install them on his land and property. Normal business transactions do not apply if the reserved goods are not resold under reservation of ownership. The authorisation expires as soon as the purchaser delays with payments or suffers a sustained diminution in his credit standing. The purchaser already assigns to us at this point in time all claims from the resale of the reserved goods, including secondary and security rights, amounting to the invoice value of the reserved goods. If the reserved goods are installed on third party land and property, then the purchaser already assigns to us at this point in time all resulting claims for remuneration amounting to the invoice value of the reserved goods. We herewith accept the transfer of these rights. Until the above authority expires, the purchaser is also entitled to collect the assigned claims. Once this authority expires, we are entitled to inform the purchaser’s customer of this transfer of rights and proceed with collection ourselves. On expiry of the collection authority, the customer shall also provide us with all the information and documents necessary to enforce the assigned claim.
c) Assignments or transfers as security and pledging of the reserved goods or assigned claims is not allowed. The purchaser must inform us immediately in writing of any third party pledging or other intervention.
d) The customer keeps the reserved goods and corresponding documents free of charge for us. He must insure them for all normal risks, e.g. fire, theft, transport and water damage. The purchaser already assigns to us now at this point in time any claims on the insurance company and third parties resulting from any such damage to the amount of the invoice value of the affected reserved goods. We herewith accept this transfer.
e) If the value of the securities to which we are entitled exceeds our claims by more than 10%, we are obliged to release securities at our discretion on demand from the customer or a third party disadvantaged by the excessive security.
8. Compliance with the laws
a) We are responsible for complying with the pertinent German safety regulations should there be no other written agreement.
b) It is up to the purchaser to comply with and implement the relevant foreign trade regulations and other statutory provisions of his country and the country to which the goods are to be delivered. The purchaser shall inform us of any special aspects resulting from these regulations.
a) If any individual provisions of these General Terms of Business should be ineffective, then the invalid provision is replaced by a provision which comes as close as possible to the intended business purpose.
b) The purchaser may only use or register brands, trademarks or any other marks of ours after obtaining our prior written permission and only in our interest.
10. Place of jurisdiction / legislation / fulfilment
a) Place of fulfilment is Bad Rappenau in Germany, unless any other place of fulfilment transpires from the nature of the corresponding obligation.
b) This agreement is subject to German law. Application of the “Vienna UN Convention on the International Sale of Goods (CISG) dated 11.04.1980 is precluded.
c) All disputes resulting from or in the context of the contract are to be settled finally and binding for all parties by the state courts responsible for our headquarters. We have the right to file action at the court responsible for the purchaser or any other court which can be competent according to national or international law.
VMC 21 d.o.o.
CEO Matjaž Vider