Terms and Conditions
§1 Scope of application / General
1. These terms and conditions (hereinafter referred to as AGB) apply to businesses as defined in Section 14 of the German Civil Code (BGB) and to consumers as defined in Section 13 BGB. They represent the base and integral part for all contracts between Firma Albrecht Franke (hereinafter referred to as Firma Albrecht Franke) and its contractual partners (hereinafter referred to as customer) concerning renting items and/or goods and services provided by Firma Albrecht Franke.
2. They also apply to all future transactions with the customer. Individual agreements shall prevail the AGB in any case. Any differing AGB of the customer will not be recognized. Those are valid only if they have been recognized in writing by Firma Albrecht Franke.
3. Entrepreneurs as defined in the Labour Code are natural persons and legal entities or joint partnerships with legal capacity entering into a business relationship with us and exercising their commercial or independent professional activity. Consumers as defined in the Labour Code are natural persons entering into a business relationship with us without attributing a commercial or independent professional activity to them. Customers as defined in the Labour Code are both consumers and entrepreneurs.
§2 Offer and conclusion of contract
All offers by Firma Albrecht Franke are subject to change and non-binding. The placement of order by the customer requires a written form and will be binding within four weeks of receipt of issuing
the order. The contract becomes effective by a written confirmation of Firma Albrecht Franke , insofar as no written agreement has been made in any other way or the order was executed without Firma Albrecht Franke prior express consent.
§3 Rental period
The rental period includes the agreed date for the supply and the return of the rental items in the depots of Firma Albrecht Franke (rental start and end), regardless of whether the customer, Firma Albrecht Franke or a third party carried the transportation out.
1. Inasmuch as no other agreement has been finalised, the price in Firma Albrecht Franke’s price list current on the date of conclusion of the contract shall apply.
2. If the amount of charges has not been agreed otherwise by contract, an appropriate remuneration for additional services, e.g. delivery, assembly, and support by qualified staff, shall be considered as agreed.
§5 Transport, venue and setting-up
1. Inasmuch as no other agreement has been finalised, Firma Albrecht Franke shall not be responsible for shipping/transporting the rental items. If Firma Albrecht Franke arranges transporting the rental items by express agreement between Firma Albrecht Franke and the customer, Firma Albrecht Franke can provide the transport itself or by third parties at its own discretion. In case of any claims for damages, Section 9(1,2) shall apply.
2. If the goods are transported by a third party on behalf of Firma Albrecht Franke, the customer is required to give priority to this party for claims for damages. For this reason, the customer may request the assignment of the claims of Firma Albrecht Franke against the third party to the extent commensurate with Firma Albrecht Franke’s liability towards the customer in accordance with Section 9 (1,2).
3. Unless agreed otherwise, the customer shall bear the cost for loading and unloading at the venue. If the customer has the loading and unloading work done by their own staff, they operate in the customer’s sphere of risk, not in Firma Albrecht Franke’s. The customer will be informed in time for the delivery if and which loading and unloading equipment will be required if necessary.
4. The venue has to be adequately prepared by the customer at his/her own expenses. The customer must determine and indicate the precise position for setting-up. The customer shall ensure Firma Albrecht Franke inspecting the site with the customer or a third party commissioned by the same on request prior to setting-up. The customer shall be held accountable for all consequences originating from an inappropriate site for setting-up.
5. Inasmuch as setting up the rental items by Firma Albrecht Franke or a third party commissioned by the same is concerned, the customer shall confirm the proper handover of the finished site to Firma Albrecht Franke or a third party commissioned by the same in writing. Subsequent complaints cannot be accepted. After expiry of rent, the customer shall return the site to Firma Albrecht Franke or its designees, recording and confirming any damages.
§6 Cancellation by the customer
1. Cancellation (termination of the contractual agreement) by the customer shall be possible in accordance with the following rules. Cancellation shall only be valid if notified in writing.
2. In the event of a cancellation, the customer shall be obliged to pay the remuneration pursuant to Section 4 in accordance with the following scale as compensation for Firma Albrecht Franke:
- cancellation by 31 days prior to the contractual agreed commencement of rental: 80% of the net rent owed
- cancellation 30 days and later prior to the contractual agreed commencement of rental: 100% of the net rent owed
The customer is free to demonstrate that the actual damage for Firma Albrecht Franke was lower.
3. If Firma Albrecht Franke has agreed to provide transport services for the rented items and has already commissioned a third party for that reason at the time of cancellation, the customer shall fully reimburse Firma Albrecht Franke for any resultant additional expenditure.
4. The date of cancellation shall be determined by the date on which hod GmbH receives the written notice of cancellation. The obligation to pay compensation shall not apply insofar that the customer can prove that Firma Albrecht Franke has suffered a loss or that the loss is considerably smaller in magnitude.
1. Unless agreed otherwise, the remuneration shall be due without reductions/discounts at the time of the contractually agreed commencement of rental at the latest. Remuneration for other performances shall also be due upon the inception of the contractual period at the latest. Firma Albrecht Franke shall only be obliged to hand the rented items over to the customer if the remuneration has already been paid in full. The timeliness of all payment shall be determined based on the time of receipt of the money by Firma Albrecht Franke.
2. If payment is not effected in good time, the customer shall at least owe the statutory interest after the due date. In addition, Firma Albrecht Franke charges the customer the amount of €5.00 each for every reminder after the delay. We reserve the right to claim a further loss due to delayed performance. It remains with the customer to prove that a lower damage has arisen by delayed payment.
3. The customer shall only be entitled to exercise a retaining lien and to set off payment insofar as the counterclaim is undisputed or has been unappealably established by a court of law. The customer shall be entitled without restriction to exercise a retaining lien resulting from the contractual relationship hereunder.
§8 Transferral for use and defects
1. The items rented out by hod GmbH are technically complex devices and correspondingly susceptible to faults, which consequently require particularly handling and operation by technically trained personnel.
2. The rented items shall be made ready by Firma Albrecht Franke in its warehouse between 10.00 and 18.00 hours on weekdays (Monday to Friday) in a condition suitable for the contractually agreed use, for the duration of the agreed rental period. The customer shall be obliged to examine the rented items when they are taken over to ensure that they are complete and free from defects and shall immediately report any defects or missing parts to Firma Albrecht Franke. If the customer fails to examine the rented items or does not report any defects or missing parts, the rented items shall be deemed to have been approved / without defects, unless the defect was not evident at the time of examination. If such a defect is discovered later, it must be reported without delay following its discovery. Failing that, the condition of the rented items shall be deemed to be approved / without defects even in consideration of the defect. Defects shall be reported in writing in accordance with Section 16.
3. If the rented items are defective at the time of being handed over or if a defect is discovered later, the customer shall be entitled to demand rectification of the defects after having reported them in good time. This shall not apply if the defect has been caused by the customer or the customer is liable for the defect in accordance with Section 11(1). Firma Albrecht Franke may satisfy the demand for rectification either, at its discretion, by providing an equivalent rented item or by repairing the defective item. The customer may only demand rectification during the period specified in Section 8(2). Firma Albrecht Franke may make rectification of the defect contingent upon payment of transport costs, travel expenses and labour costs by the customer, insofar as the work entails unreasonable effort. This shall regularly be the case if the rented items are in a foreign country.
4. The customer shall only be entitled to demand a reduction in price or termination of the contract in accordance with Section 543(2), No.1 and Section 543(3) of the German Civil Code (BGB) if attempted rectification by Firma Albrecht Franke proves fruitless or Firma Albrecht Franke has refused to rectify the defect because costs have not been borne in accordance with Section 8 (3), fifth sentence. If the customer fails to report the defect or reports the defect belatedly, the customer shall not be entitled to demand a reduction in price on account of the defect nor to terminate the contract in accordance with Section 543(2), No.1 and Section 543(3) of the German Civil Code (BGB) nor to claim damages. Entitlement to damages shall also be excluded if the customer reports a defect to Firma Albrecht Franke in good time but it is not possible to rectify the defect within the period of time specified in Section 8(2). If a defect is not reported or is reported belatedly, the customer shall be obliged to indemnify Firma Albrecht Franke for the resultant loss. The right of termination shall be excluded if the customer is in any way to blame for the defect.
5. If several items have been rented out, the customer shall only be entitled to terminate the complete contract on account of the defective nature of a single item if the rented items have been rented out as a complete unit and the defective nature significantly impairs the contractually presumed serviceability of the rented items as a whole.
6. If the customer rents technically complex equipment or equipment which is difficult to operate without making use of the specialist personnel recommended and offered by Firma Albrecht Franke, the customer shall only be entitled to demand rectification of the defect if he can prove that the defect has not been caused partly or entirely by operator errors.
7. The customer shall be obliged to obtain at his expense and in good time all permits required under public law for the planned use of the rented items. If installation is undertaken by Firma Albrecht Franke, the customer shall present the necessary permits to Firma Albrecht Franke on request beforehand. Firma Albrecht Franke shall not be liable for the permissibility of the customer's intended use of the rented items.
§9 Limitations of liability
1. Contractual- and statutory indemnifications are only assertable by the customer and/or the supplier respectively, when such are attributable to a premeditated- or gross negligent infringement of contractual duties on the part of Firma Albrecht Franke, by its legal representatives, or by its management executives. Claims for damages unrelated to fault shall be excluded in accordance with Section 536(1) of the German Civil Code (BGB).
Firma Albrecht Franke is also legally liable in addition, on enforceable legal grounds for typical, predictable damage when such are caused by the gross negligent- or premeditated acts of an ordinary vicarious fulfilment agent, or by the negligent infringement of material contractual duties on the part of Firma Albrecht Franke, by its legal representatives, or by its management executives. These limitations of liability shall also apply to the benefit of Firma Albrecht Franke´s statutory representatives and executives.
2. These limitations of liability also apply to the benefit of the statutory representatives and managing employees at Firma Albrecht Franke.
§10 Obligation to exclude liability in favour of Firma Albrecht Franke
In agreements with its contractual partners (physicians, visitors, etc.) the customer shall include a limitation of liability in favour of Firma Albrecht Franke and corresponding in content with the ruling in Section 9, also for claims in tort. Insofar as Firma Albrecht Franke is sued for damages due to non-implementation of this obligation, Firma Albrecht Franke shall be held harmless by the customer in respect of such claims for damages.
§11 Customer’s duties during the rental period
1. The customer shall treat the rented items with care and return them in proper order. The customer shall be liable for any damage which he could have avoided with customary prudence or resulting from culpable conduct of the customer or third parties. The customer shall bear liability for any property damage and personal injury resulting from using or operating the rental items. If the customer has not booked service personnel from Firma Albrecht Franke, he shall not make any alterations in or repairs of the rental items, or shall not have those changes done, without prior acceptance from Firma Albrecht Franke. The customer shall be fully liable for any claims arising from a violation of the above provision. If structural parts of the models become loose, the customer is obligated to give notice to Firma Albrecht Franke without delay and initiate necessary protective measures himself. The customer shall provide sufficient surveillance of the rental items including accessory items, taking measures to prevent theft/damages at his own expenses. The customer’s liability shall commence with the takeover of the rental items by the customer and end with the return or upon the start of dismantling, provided that dismantling is done by Firma Albrecht Franke.
2. The rented items may only be installed, operated and removed in accordance with the technical rules and exclusively by qualified personnel. If items are rented without personnel from Firma Albrecht Franke, the customer shall ensure continual compliance with all applicable safety regulations, especially the accident prevention regulations issued by the employers' liability insurance associations and the guidelines of the Association of German Electrical Engineers (VDE).
3. The customer shall ensure a trouble-free supply of electric power during the entire period of use of the rented items. The customer shall be liable for any damage or loss due to power failures and interruptions or fluctuations in the power supply.
1. The customer shall be obliged to take out appropriate and adequate insurance against the risks generally associated with the rented items (loss, theft, damage, third-party liability).
2. If Firma Albrecht Franke and the customer agree that Firma Albrecht Franke is to take out insurance, the customer shall refund the costs of the insurance to Firma Albrecht Franke. If Firma Albrecht Franke does not take out insurance, the customer shall provide Firma Albrecht Franke with proof of appropriate insurance on request.
§13 Third-party rights
The customer shall ensure that the rented items remain free from all encumbrances, demands, attachments and other legal claims by third parties. The customer shall be obliged to inform Firma Albrecht Franke of such third-party action without delay and make all the necessary documents available. The costs of defending against such action shall be borne by the customer, unless the action can be ascribed to Firma Albrecht Franke's sphere of influence.
§14 Termination of rental agreement
1. A rental agreement may only be terminated by either party for good cause. This shall also apply with regard to agreed supplementary services.
2. Good cause for Firma Albrecht Franke shall apply in the following cases in particular (a) if the customer's financial circumstances deteriorate significantly, e.g. if a levy of attachment or other enforcement action is brought against him or if bankruptcy proceedings are instituted against his assets or a settlement with his creditors is sought out of court; (b) if the customer uses the rented items in violation of the contractual agreement; (c) if, in the case of a rent agreed and payable according to periods of time, the customer defaults on payment of the rent for two consecutive payment deadlines or on a total sum equal to the rent payable on two payment deadlines.
§15 Return of the rented items
1. The rented items shall be returned to Firma Albrecht Franke's warehouse in full, in orderly, clean and faultless condition during the period specified in Section 8(2), at the latest on the last day of the agreed rental period. The duty to return items shall also encompass any defective rented items, especially cable and other small accessory parts.
2. The rented items shall only be deemed to have been returned completely when all rented items have been unloaded in Firma Albrecht Franke's warehouse. Firma Albrecht Franke reserves the right to inspect the rented items in detail. Acceptance without complaint shall not be interpreted as approval of the completeness and condition of the returned rented items.
3. If the agreed rental period is exceeded, the customer shall inform Firma Albrecht Franke accordingly in writing and without delay. Continued use shall not lead to an extension of the rental. For every day by which the agreed rental period is exceeded, the customer shall pay compensation equal to the agreed remuneration per day. This remuneration shall be calculated by dividing the originally agreed total price by the number of days of the originally agreed rental period. Firma Albrecht Franke reserves the right to assert further claims.
4. If rented items are culpably damaged or lost, the customer shall refund Firma Albrecht Franke the cost of repairs; in the event of a total write-off or loss, the customer shall refund the cost of replacement, minus any residual value if applicable. In addition, the customer shall also repay any consequential losses incurred, especially any reduction in value, expert fees, loss of rental income and a lump sum of €25.00 for administrative expenses.
5. If models or other small accessory parts are culpably damaged or lost, the customer shall refund the new value of the parts, unless the customer can prove that Firma Albrecht Franke has not incurred any loss or that the loss is considerably smaller.
§16 Written form
Insofar as written form has been agreed or prescribed by the present Terms, this requirement shall also be met by facsimile transmission (fax) and by electronic documents bearing a qualified electronic signature in accordance with the German law on signatures.
§17 Concluding provisions
1. Subsidiary verbal agreements have not been reached.
2. If any of the provisions in the contractual agreement, including these Terms, prove to be invalid or have not been validly incorporated into the contract, this shall not affect the validity of the remainder or of the contract itself. The parties undertake to agree instead on a valid ruling most closely fulfilling their economic intention.
3. The present Terms and all legal relations between Firma Albrecht Franke and the customer shall be governed by the laws of the Federal Republic of Germany excluding the United Nations Convention on the International Sale of Goods (CISG). German shall be the language for negotiations and contractual agreements. The present English text is merely a convenience translation.
4. Place of performance shall be at Firma Albrecht Franke head office.
5. Insofar as the requirements for all disputes arising from this contract are met, jurisdiction shall be at Firma Albrecht Franke’s business headquarters, also for action relating to deeds and the payment of cheques, provided that the customer is an entrepreneur. This jurisdiction shall also apply if the customer does not have any general jurisdiction inGermany, moves his domicile or ordinary place of residence to a foreign country after concluding the contract or if his domicile or ordinary place of residence is unknown at the time of filing suit.
BEGEHBARE ORGANE - Vector GmbH
Nordstraße 3, D-99427 Weimar
Telefon: +49 (0) 3643 4578386 · Telefax: +49 (0) 3643 2579870
Internet: www.begehbare-organe.de, E-Mail: email@example.com