1.
General Information and Scope of Application
1.1
All contracts of CT Kranservice GmbH (hereinafter referred to as: lessor) on the provision of a construction crane and all of its accessories (hereinafter referred to as: rental crane) in return for payment - whether with or without operating personnel and whether with or without transport to and from the site and whether with or without assembly and disassembly - to a client (hereinafter referred to as: lessee) are governed exclusively by these General Terms and Conditions (hereinafter: Rental Conditions).
1.2
General Terms and Conditions (hereinafter: General Terms and Conditions) of the lessee shall not be binding on the lessor even if he has not objected to them again after receipt. This means that in the event of a conflict between these Rental Conditions and the lessee's general terms and conditions, these Rental Conditions shall apply exclusively. For this reason, any additional or supplementary provisions contained in the lessee's general terms and conditions that are not included in these Rental Conditions shall not become part of the contract.
1.3
These Rental Terms and Conditions shall also apply to future contracts between the lessor and the same lessee for the hire of rental cranes against payment.
1.4
Individual agreements made by the lessor with the lessee in individual cases (including collateral agreements, supplements and amendments) always take precedence over these Rental Conditions.
1.5
Legally relevant declarations and notifications to be made by the lessee to the lessor after conclusion of the contract must be made in text form to be effective.
1.6
Unless otherwise stated, all rental contract offers made by the lessor are subject to change.
1.7
These Rental Conditions apply exclusively to entrepreneurs, legal entities under public law and special funds under public law within the meaning of Article 310 para.1 sentence 1 German Civil Code - BGB.
2.
Resolving Conditions of the Contract (Public Law Authorisations and Approvals)
2.1
Any agreement concluded by the lessor with the lessee (hereinafter referred to as: parties) including these Rental Conditions is subject to a condition subsequent (Article 158 para. 2 BGB) due to the refusal of a permit and/or authorisation from the competent authority required for the execution of the contract, in particular for the execution of large and heavy transports and crane movements on public roads (cf. e.g. Articles 29 III and 46 I No. 5 German Road Traffic Act - StVO and Article 70 I German Road Traffic Licensing Act) . The remuneration claims acquired by the lessor for services rendered up to that point until such an official refusal remain unaffected.
Subcontractors
3.1
The lessor is entitled to commission other companies to fulfil all or some of its contractual obligations, unless otherwise agreed.
Delay on the Part of the Lessor
4.1
The lessee may demand compensation from the lessor if the lessor is culpably in default with the contractually owed provision of the rental crane and has demonstrably suffered damage as a result. Notwithstanding No. 8.1 of these Rental Conditions, the compensation to be paid by the lessor in such a case shall be limited to a maximum of the (net) amount of the daily rental price of the rental crane for each working day in the event of slight negligence on the part of the lessor.
4.2
The lessee is entitled to withdraw from the hire contract if he has unsuccessfully set the lessor a reasonable deadline for handing over the hire crane after the agreed start of the hire period.
4.3
The lessor shall not be responsible for weather-related delays on a repair or in the assembly and/or disassembly of the hire crane.
4.4
The lessor commits to carrying out repairs on the rented crane during the rental period for which the lessor is responsible as quickly as possible. If the repairs are successfully completed within 48 hours after the lessee reports the need for repairs to the lessor, the lessor shall not be liable for any resulting loss of earnings incurred by the lessee.
Important Duties of the Lessor
5.1
The lessor undertakes to rent the crane to the lessee for the agreed rental period.
5.2
If the parties agree to provide the rented crane with operating personnel, the lessor shall provide the operating personnel to the lessee on the basis of a service provision contract to carry out the agreed (crane) operating work as the lessee's vicarious agent and thus for temporary integration into the lessee's operations.
5.3
Unless expressly agreed otherwise, the lessor shall not be responsible for attaching the load or providing suitable lifting gear, such as sling chains, ropes or lifting straps, even if a hire crane is hired out with operating personnel.
Important Duties of the Lessee
6.1
The hirer undertakes to use the rental crane and any operating personnel only in accordance with the contract or intended use, to carefully observe the relevant accident prevention and occupational safety regulations and road traffic regulations, to pay the rental fee as agreed, to handle the rental crane properly and to return it to the lessor at the end of the rental period in a defect-free and damage-free condition.
6.2
If, in addition to the provision of the rental crane by the lessor, the parties agree on its assembly and/or disassembly by the lessor, the lessee shall ensure at its own expense that the following requirements are met for the respective assembly and/or disassembly of the rental crane:
6.2.1
The existence of all orders, permits and approvals required under public law for the respective assembly and/or dismantling of the rental crane (e.g. a special use permit required under road and highway law for the special use of public traffic areas and/or an order for traffic-regulating measures required under traffic law in accordance with Article 45 of the German Road Traffic Act for road closures, safety measures, etc.);
6.2.2
the existence of all special requirements necessary for the assembly and/or disassembly of the rental crane in military facilities, refineries, chemical plants or similar facilities subject to special safety regulations (e.g. special ID cards or safety clothing for the fitters);
6.2.3
the presence of the lessee or a representative authorised by the lessee at the time of delivery of the rental crane by the lessor for the purpose of instructing the location designated by the lessee for the erection and operation of the rental crane (hereinafter referred to as: crane site);
6.2.4
an unobstructed and sufficiently paved access and exit to the crane site for all vehicles required for the assembly and/or disassembly of the rental crane (the lessee must ask the lessor in good time before the assembly and/or disassembly of the rental crane about the vehicles required for assembly and/or disassembly in each individual case - such as lorries, low-loaders or mobile cranes);
6.2.5
the presence of a mobile crane provided by the lessee in accordance with the les-sor's specifications for ballasting a so-called bottom-slewing tower crane if, due to the construction site conditions, the bottom-slewing tower crane or rental crane cannot exceptionally be ballasted - independently - with the respective rental crane itself;
6.2.6
the availability of the areas required for the smooth and unhindered assembly and/or dismantling of the rental crane in the immediate vicinity of the crane site, in particular the availability of sufficient areas for parking the vehicles required for the assembly and/or dismantling of the rental crane (hereinafter referred to as: assembly vehicles) and for depositing the individual crane parts (the lessee must enquire with the lessor in good time before the assembly and/or dismantling of the rental crane about the sizes of these areas required in each individual case);
6.2.7
the existence of sufficient load-bearing capacity of the subsoil of the base of the rental crane at the crane location (hereinafter referred to as: crane stand) and suf-ficient load-bearing capacity of the base of a mobile crane required for assembly and/or disassembly of the rental crane (hereinafter referred to as: (mobile crane stand) as well as the existence of (stability) proof of this load-bearing capacity of the subsoil of the crane stand (the lessee must ask the lessor in each individual case about the more detailed requirements for the stability of the crane and mobile crane site and the content of the evidence to be provided by the lessee to prove the stability of the crane and mobile crane site);
6.2.8
in the case of the provision or rental of a so-called tower crane, the presence of a live power cable connected via an electrical connection cabinet with an RCD in compliance with the regulations of the power supply companies and the substation as well as the official regulations concerning lightning protection at the crane location;
6.2.9
if a tower crane is provided or rented, the presence of the (test) weights required to set the overload and to check the overload protection of the tower crane, including the (crane) hangers required to hoist these (test) weights with the rented crane (the lessee must ask the lessor for the more detailed requirements for these weights in each individual case);
6.2.10
the presence of the lessee or a representative authorised by the lessee at the acceptance-ready completion of the assembly of the rental crane by the lessor for the purpose of handing over the rental crane at the crane site to the lessee.
Defects Existing at the Handover of the Hire Crane
7.1
The lessee is entitled to inspect the rented crane in good time before the start of the rental period and to report any defects. The costs of an inspection shall be borne by the lessee.
7.2
The lessee must notify the lessor in writing of any defects in the rented crane that are recognisable at the time of handover and that significantly reduce its suitability for the contractually intended use immediately after acceptance. If the lessee fails to make this notification, the rented crane shall be deemed to have been approved with regard to these defects. The same shall apply if the lessee fails to notify the lessor in writing of any defects within the meaning of sentence 1 that are present but not recognisable upon handover of the rental crane immediately after their discovery.
7.3
The lessor shall remedy at its own expense all defects in the rented crane which are present at the time of handover and which have been notified to it in writing in good time in accordance with No. 7.2 of these Rental Conditions. Instead of remedying such defects, the lessor can also provide the lessee with a functionally equivalent rented crane. While the rental crane is being repaired by the lessor, the lessee is exempt from paying the rent.
7.4
The lessee may withdraw from the rental contract if the lessor culpably allows a reasonable deadline set by the lessee to remedy a defect in the rental crane that was present at the time of handover and notified by the lessee in writing in good time to elapse without success. This also applies if the lessor fails to remedy such a defect.
Limitations of Liability of the Lessor
8.1
Insofar as the lessor's liability is not specifically regulated in these Rental Conditions, the lessor shall only be liable to the lessee for
a.
typical contractual damages foreseeable at the time of conclusion of the contract, which are based on a culpable breach of essential contractual obligations by the lessor, a legal representative or vicarious agent that jeopardises the achievement of the purpose of the contract,
b.
damages resulting from injury to life, body or health, which are based on a negligent breach of duty by the lessor or an intentional or negligent breach of duty by a legal representative or vicarious agent of the lessor,
c.
other damage caused by a grossly negligent breach of duty by the lessor or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the lessor, and
d.
in cases in which the lessor is liable under the Product Liability Act for personal injury or property damage to privately used items.
Any further liability for damages on the part of the lessor is excluded.
8.2
If the rental crane cannot be used by the lessee in accordance with the contract through the fault of the lessor as a result of the omission or incorrect execution of suggestions and advice prior to or after the conclusion of the contract and other contractual ancillary obligations - in particular instructions for the operation and maintenance of the rental crane - the provisions of Nos 7.1 and 7.2 and No. 8.1 of these Rental Conditions shall apply accordingly to the exclusion of further claims by the lessee.
Liability of the Lessor for Renting with Operating Personnel
9.1
If the hire crane is hired out with operating personnel, the lessor shall only be liable for damage caused by the operating personnel if it has not selected the operating personnel properly. Otherwise, the lessee bears the liability.
9.2
The operating personnel may only be used by the lessee to operate the rental item and under no circumstances for any other work.
Rental Price, Additional Costs, Payment and Advance Payment
10.1
The calculation of the rent is based on normal use of the rental crane of up to 8 hours per day on the basis of a five-day week (Monday to Friday) and up to 22 working days per month. Additional working hours must be notified by the lessee to the lessor in text form; these hours will be additionally charged to the lessee by the lessor.
10.2
The agreed rental price does not include the costs of transporting the hire crane there and back (including loading and unloading), necessary assembly and dismantling, provision of operating materials and/or operating personnel, machine breakage insurance and similar. The lessee must always pay these ancillary costs in addition to the agreed rent.
10.3
Unless otherwise stated, all prices are subject to VAT at the statutory rate.
10.4
If the parties have not expressly agreed advance payments on the lessor's rent claims and/or its other contractually agreed claims (e.g. costs for machine breakage insurance, assembly or dismantling), the lessor may demand a reasonable advance payment on these claims from the lessee at any time.
Offsetting and Right of Retention and Assignment of the Claims of the Lessee against its Client
11.1
The lessee may only offset claims of the lessor arising from the contract concluded between the parties on the basis of these Rental Conditions against undisputed or legally established counterclaims and may only assert the defence of a right of retention on the basis of such (coun-ter)claims.
11.2
The lessee assigns to the lessor its claims against its client, for whom the rental crane is used, in the amount of the outstanding claims of the lessor resulting from the contract concluded between the parties for the rental crane. The lessor accepts the assignment.
The lessor undertakes to release the securities to which the lessor is entitled at the request of the lessee insofar as their value (including a deposit held by the lessor for this purpose) exceeds the claims of the lessor to be secured by more than 20 %.
Standstill Clause
12.1
If work at the workplace for which the hirer has hired the hire crane is suspended for at least ten consecutive days due to circumstances for which neither the lessee nor its client is responsible (e.g. frost, flooding, strike, civil unrest, war, official orders), the period from the 11th calendar day until the aforementioned circumstances cease to apply shall be deemed to be idle time.
12.2
The rental period agreed for a specific time is extended by the idle period.
12.3
The lessee shall pay the percentage of the rental charge due for normal use of the hire crane (cf. No. 10.1 of these Rental Conditions) agreed by the parties in writing for the idle period; unless the parties have agreed otherwise, the percentage of 75% shall apply.
12.4
The lessee must notify the lessor immediately in writing of both the beginning and the end of the idle period and provide evidence of this at the lessor's request.
Maintenance Obligation of the Lessee
13.1
The lessee is obliged,
a.
to protect the rental crane from overuse in every way,
b.
to maintain and service the rental crane properly and professionally at its own expense and
c.
to notify the lessor of any necessary inspection and repair work in good time and have it carried out by the lessor. The costs incurred as a result shall be borne by the lessor if the lessee and its assistants have demonstrably observed all due care.
13.2
The lessor is entitled to inspect the rented crane at any time and, after prior consultation with the lessee, to inspect it himself or have it inspected by an authorised representative. The lessee is obliged to facilitate the lessor's investigation in every way. The costs of the inspection shall be borne by the lessor.
Termination of the Rental Period and Return Delivery of the Rental Crane
14.1
The lessee is obliged to notify the lessor in good time of the intended return delivery of the rented crane (notification of release).
14.2
The rental period shall end at the end of the contractual rental period, but not before the rental crane arrives at the lessor's storage location or another agreed destination with all parts required for its commissioning in proper and contractual condition, unless the parties have agreed otherwise in writing.
15. Further Duties of the Lessee
15.1
The lessee may not allow third parties to use the rented crane or grant third parties rights of any kind to the rented crane without the prior consent of the lessor. The lessee is also not authorised to assign rights arising from the contract concluded by him with the lessor regarding the rental crane.
15.2
The lessee must notify the lessor immediately in writing if a third party has seized, attached or similar rights to the rental crane. In addition, the lessee must immediately inform the third party in writing of the lessor's ownership of the rented crane.
15.3
The lessee must inform the lessor immediately in the event of any accidents and await its instructions.
15.4
The lessee must compensate the lessor for all damages resulting from breaches of the provisions of Nos 15.1 to 15.3 of these Rental Conditions.
16. Termination
16.1
a.
The rental agreement concluded for a specific rental period cannot be terminated by either party.
b.
The same applies to the minimum rental period under a rental agreement concluded for an indefinite period. After expiry of the minimum rental period, both parties may terminate the rental agreement concluded for an indefinite period of time subject to the statutory notice period (Article 580a para. 3 BGB).
c.
Rental agreements for an indefinite period without a minimum rental period can be terminated by either party subject to the statutory notice period (Article 580a para. 3 BGB).
16.2
The parties are entitled to terminate the rental agreement without notice for good cause.
In particular, the lessor is entitled to terminate the rental agreement for good cause if
a.
the lessee is more than 14 calendar days in arrears with the payment of an amount for which the lessor has sent a written reminder after the due date,
b.
it becomes apparent to the lessor after conclusion of the contract that his claim to payment of the rental price is jeopardised by the lessee's inability to pay,
c.
the lessee does not use the rented crane for its intended purpose or moves it to another location outside the Federal Republic of Germany without the prior written consent of the lessor,
e.
the lessee violates the provisions of No. 13.1 of these Rental Conditions despite a prior written warning to this effect, or
f.
the lessee transfers the rental crane to a third party without the prior written consent of the lessor.
17. Loss of the Hire Crane
The lessee is obliged to pay compensation to the lessor if it is culpably unable to fulfil its obligation to return the rental crane.
18. Machinery breakdown insurance
18.1
The lessee must insure the rental crane during the term of the rental agreement on the basis of the General Terms and Conditions for Machinery and Comprehensive Insurance of Mobile or Transportable Equipment (ABMG 2020).
18.2
Machine breakage insurance in accordance with No. 18.1 of these Rental Conditions can be taken out with the lessor with a deductible of € ....00 per claim. Damage caused by theft, burglary and robbery of the rented crane is not covered by the insurance cover of a machine breakage insurance policy taken out with the lessor.
18.3
In the cases of damage covered by the insurance cover of a machine breakage insurance policy taken out with the lessor, the lessee shall bear a deductible (excess) of € ....00 per case of damage.
19. Other Provisions
19.1
There are no ancillary agreements to the contract concluded by the parties for the rental crane. Amendments and/or additions to this contract must be made in text form. This also applies to a waiver of this text form requirement itself.
19.2
Should any provision of these Rental Conditions be or become invalid, this shall not affect the legal validity of the remaining provisions. In the event of an invalid provision of these Rental Conditions, the parties are obliged to negotiate a valid and reasonable replacement provision that comes as close as possible to the economic purpose pursued by the invalid provision; the same applies in the event of a loophole.
19.3
German law shall apply exclusively (to the exclusion of the UN Convention on Contracts for the International Sale of Goods or CISG).
19.4
The place of fulfilment and exclusive place of jurisdiction - also for actions in documentary proceedings - is, if the lessee is a merchant, a legal entity under public law or a special fund under public law, for both parties and for all claims, the head office of the lessor or - at its discretion - the registered office of its branch office from which the contract for the rental crane was concluded. The lessor may also sue at the lessee's general place of jurisdiction.