General Terms of Hire and Business of the Wagert Group
Unless otherwise expressly agreed in writing in an individual case, the following conditions apply to all hire contracts and lawful business transactions with us. This also applies to all future hire agreements and lawful business transactions, even if the validity of these conditions is not expressly referred to again when the contract in question comes into effect. Purchase, hire or other general terms of business of the hiring party/customer shall not apply to the contractual relationship, even if we have not expressly objected to them. If one of the conditions below is or becomes invalid, the ruling that lawfully corresponds most closely to the invalid provision in terms of the intended commercial purpose shall be deemed to have been agreed upon. This shall not affect the validity of the remaining provisions.
2. Operating manual, operating information, procedure in the event of accidents
When the hired item is collected, every hiring party is given a copy of the operating manual and other operating and maintenance instructions, along with a leaflet covering the procedure to be followed in the event of accidents. Before putting the equipment into operation, the hiring party has an obligation to familiarise itself with the full content of all documents provided, and to follow the instructions. If the hiring party fails to meet this obligation, then it shall be liable for any damage arising from that, even if it is not to blame.
3. Scope of our obligations and additional agreements
Our obligation is governed solely by the content of the written agreement. This is deemed to be the final agreement, unless it has been proven that additional agreements have intentionally not been included. Telephone or verbal agreements or changes do not take effect until we have issued our written confirmation. Unless an express separate request has been lodged, any necessary barriers and the procurement of any official approvals required do not form part of our scope of performance. Only the written agreement applies to work carried out by our staff. The hiring party alone is responsible and liable for the suitability of the machine for the hiring party's intended purpose/field of application. We have no obligation to carry out an inspection for the purpose of ascertaining whether the machine ordered by the hiring party is also suitable for its purposes. In the event of any incorrect advice being given, we are liable only for intent or gross negligence, with the hiring party bearing the burden of proof.
4. Use and return
If we provide operating personnel, the hiring party has an obligation to inform us (without being requested to do so) of any structures in the area where the equipment is to be used, such as sewers, manhole covers, underground car parks, and any weight restrictions due to roadworks. The hiring party must make its own enquiries as to the foregoing if operating the machinery itself. Our equipment may be used only as described in the relevant operating manual and in accordance with the legal provisions. Sandblasting work is generally prohibited.
The hiring party has an obligation to follow legal provisions and accident prevention regulations to the letter. The hiring party has an obligation to treat the equipment with the utmost care when using and transporting it, and to avoid everything that may cause damage or more than the amount of unavoidable wear that is expected as a result of careful use. In particular, this also means taking care to prevent possible damage by third parties, including damage resulting from the activities of other companies working on the site. The equipment must be returned in the same fully-functional, proper and undamaged condition that it was in when it was handed over, having also been both cleaned and fully refuelled. If the equipment is not in this condition when it is returned, then the hiring party must reimburse us for the cost of returning it to the aforementioned condition, particularly the vehicle refuelling costs. Return means handing over the equipment at the location designated by us or the premises of the company during our hours of business (7am to 5pm). The hiring party is liable for damage sustained by the equipment while it is parked by the hiring party off the premises of our company. We are under no obligation to grant the hiring party a remedial option (e.g. deadline notice with penalty of non-performance) in advance. The hiring party is also liable for its agents and representatives. If the equipment is damaged, then it is up to the hiring party to prove that it is not to blame for the damage. If the equipment is not returned in proper condition as per the contract, then the hiring party shall be liable to pay the equivalent of the hire charge in damages up until completion of the necessary repair work.
If before returning the equipment the hiring party becomes aware of any damage to the equipment or circumstances that put into question the equipment's immediate further use, then it has an obligation to notify the owner of this immediately.
The aforementioned obligations of the hiring party are fundamental obligations under the agreements made. Equipment will be taken back only during our hours of business, unless a different return time was expressly agreed when the equipment was handed over.
5. Quotations, prices, invoicing and payment
Quotations are subject to change. Verbal quotations and cost estimates are non-binding. The agreed prices apply only to provision of the operational equipment (plus insurance charge and fuel when the operator is using the equipment itself, and delivery/collection costs) and – if agreed – an operator provided by the owner. Additional personnel, tools and machinery are charged for separately. Unless special prices or fixed prices have been expressly agreed on the basis of written quotations for the time when the equipment is in use and provided that the hiring party is a business entity, we are entitled to base our invoicing on the respective price list valid for the time when the equipment is in use, which shall be deemed agreed in this instance. Return travel is based on the time taken to travel from and to our depot, and will be charged according to our current price list. If we assume responsibility for barriers and/or procuring official approval separately, then these costs shall be invoiced additionally.
All stated prices are exclusive of statutory VAT.
If work cannot be started or continued due to adverse weather, poor ground conditions or a lack of preparation on the part of the customer, then we shall still be entitled to demand payment for the full hire period, unless the hiring party can prove that the loss has been minimised by alternative use. Unless expressly agreed otherwise, all payments are due immediately after invoicing, without discounts and exempt from charges, and can in the first instance be offset against the oldest liabilities, even if there are different provisions. We are under no obligation to accept cheques or bills of exchange. If we do accept them, then this is done only in lieu of formal payment, with discount charges being invoiced and without prejudicing later payment obligations. Before making a vehicle available, we are in all instances entitled to request a reasonable advance payment, or a reasonable payment on account during the hire period.
Unless otherwise agreed in writing, our invoices are payable immediately and must be settled within ten days of the date on the invoice. If agreed payment deadlines are not met or if the hiring party falls into payment arrears for whatever reason, then we are entitled to charge interest of 7% above the respective base rate on all outstanding amounts from the time at which they become due (at least 10%). We shall be entitled to default interest at the same rate. We are also entitled to withhold any outstanding performance until overdue payments have been made, and to collect at the hiring party's expense any equipment still in its possession and to put it to other use. This does not affect the claims to which we are entitled from the contractual relationship. However, the sums that we receive during the agreed contract duration as a result of hire to a third party, for example, shall be offset after deducting the costs incurred from collection and rehire. Agreed periods and dates shall be extended accordingly. Furthermore, any obligation to pay an agreed contract penalty shall become inapplicable. Moreover, at our discretion we may either refuse to continue to provide equipment until the corresponding contract value is paid in full or – at our discretion and without the hiring party being entitled to claim any compensation – withdraw wholly or partially from performance of the contract and charge a flat rate of 25% of the contract value as compensation, unless we prove that damages were incurred in excess of that amount or the hiring party can prove that no damages or significantly lower damages were incurred. There is no possibility of offsetting the hiring party's counter-performance with claims against us, unless they are undisputed or legally binding. The assertion of claims arising from another contract does not entitle the hiring party to withhold the counter-performance either wholly or partially.
6. Periods and dates
We make every effort to provide the specified equipment on the dates stipulated. However, insofar as dates are not expressly identified as set dates, they are generally non-binding. In all instances we are liable for making good the consequential damages only if the deadline is not observed due to intent or gross negligence on the part of our staff, and then only with a limit for each working day of no more than the net daily hire charge. Detachable parts of our performance can be regarded separately with respect to periods and dates. We are not liable for force majeure, accidents, damage and the like that cause a delay or failure of the equipment. However, we will make every effort to provide replacement equipment within an appropriate period.
7. Warranty, liability and insurance cover
Unless the extent of our liability and warranty is already regulated in the above terms, the following shall apply:
Complaints must be lodged in writing without delay, and no later than within two working days. Claims arising from complaints made after that are precluded. If it is ascertained that equipment faults/complaints are due to the equipment being handled incorrectly or contrary to the contract, or if the operating manual and/or obligations arising from section 4 are not observed, then the hiring party shall reimburse us for all costs (including any travel costs) incurred in order to remedy the faults/complaints. If the equipment is handed over with recognisable deficiencies that do not inconsiderably hinder its intended use, then it shall no longer be possible to make a complaint. In particular, the hiring party shall not be entitled to any warranty rights whatsoever with respect to deficiencies of this type. Other deficiencies that exist when the equipment is handed over for which a complaint is made immediately shall be remedied by us at our expense. Alternatively, at our discretion we shall be entitled to provide an equivalent hired item to the hiring party.
The owner is liable for damage arising from injury to life, body or health that is based on the negligent breach of an obligation of the owner or an intentional or negligent breach of an obligation by a legal representative or agent of the owner.
Any other claim for damages of the hiring party against the owner, in particular, compensation for damages not incurred on the hired item itself, may be asserted by the hiring party only in the event of an intentional or grossly negligent breach of an obligation of the owner or in the event of an intentional or grossly negligent breach of an obligation by a legal representative or agent of the owner, as well as in the event of a culpable breach of material contractual obligations to the extent that the purpose of the contract is jeopardised in respect of foreseeable damage that is typical of such contracts.
If the owner is liable for physical injury under Germany's product liability act (Produkthaftungsgesetz) or tangible damage to privately used objects, then the hiring party may also assert a corresponding claim for damages.
Liability for damages is excluded in all other instances. This also applies to equipment failure during the hire period.
The hiring party is liable for damages inflicted on third parties by the equipment. In this respect, the hiring party relieves us of any liability for third-party claims, irrespective of their legal grounds. Due to the no-claims bonus, we have no obligation to give priority to making a claim off our own insurance. This applies particularly when the damage has been caused during the course of work with the object of contract.
In the event of accidents and other damage, the hiring party is generally liable for all damage to the equipment caused by the accident and for damage arising due to its failure. If third parties were solely, primarily or jointly responsible for the accident, then we shall assign our claims against said third parties, including any claims arising from Germany's road traffic act (Straßenverkehrsgesetz - StVG), to the hiring party in exchange for payment for the damage. If we initially make efforts to obtain payment from other parties involved in the accident, this imposes no obligation on us to pursue the claims further.
We recommend that the hiring party take out additional insurance policies against the risk of breakage in order to cover the equipment and consequential damage (such additional insurance is shown in the price lists and brochures). In all instances, the hiring party is liable for damages to the level of the excess agreed with the machine breakdown insurance provider. This excess is 10% of the damage incurred, but at least € 3,000.00 per case of damage. If the hiring party does not take out the recommended insurance cover, then it shall forfeit any claim against the owner that would have been possible under the terms of said insurance cover had it been taken out, and also to objections that would have been superfluous under the performance guarantee of the insurance. We have concluded a machinery insurance policy for every machine in accordance with Germany's motorway toll act for heavy goods vehicles (Autobahnmautgesetz für schwere Nutzfahrzeuge - ABMG). When the contract is awarded, the hiring party has the option of choosing to cover its liability risk by paying a flat-rate sum (as specified in the contractual agreements/order confirmation) or taking out its own insurance policy to cover the liability risks arising from the hire contract. If the hiring party does not take out its own insurance and still declines to pay the flat-rate sum (to be agreed with us) so as to be included in the machinery insurance cover concluded by us in accordance with ABMG requirements, then the hiring party shall be liable without limitation in accordance with our hire conditions and terms of business, and within the framework of the statutory provisions.
In all cases the hiring party shall be fully liable for the excess and over and above that amount (including when full cover has been taken out), for damages arising from the following causes:
a) excessive use (section 4) and breakage;
b) violation of one of the obligations stated in sections 2 and 4; arising from inspections not being carried out, in particular;
c) sub-hire of the vehicle or entrusting it to an unauthorised operator;
d) causing an accident or damage through negligence or intent, as well as driving under the influence of alcohol or drugs. Moreover, in the event of any violation of the road traffic laws or the applicable accident prevention regulations;
e) the hiring party bears the sole risk for tyre damage, taking as the basis the proper condition of the equipment and vehicle, as confirmed by the hiring party, on handover. Tyre damage is not covered by the additional machinery insurance cover and must therefore be made good as stated above;
f) damage caused by the particular hazards of the job
aa) on water construction sites,
bb) in the vicinity of water,
cc) on floating vehicles,
dd) during tunnel work or work underground.
The hiring party must prove that in cases a) to f) it did not cause the damage through intent or negligence. In all cases, the hiring party is liable for its own conduct and that of its operators.
In the event of equipment hire with operating personnel, the operating personnel may be engaged only in the operation of the hired item, and not in other work. In the event of damage caused by the operating personnel, the owner shall be liable only if it did not select the operating personnel properly. The hiring party shall be liable in all other instances. If machines driven by our staff are damaged without our staff being at fault, then the hiring party is liable.
8. Assignment of claims
The assignment of any of the hiring party's claims to third parties, whether based on fulfilment, any type of warranty or otherwise based on claims for damages, is not permitted and is invalid.
Upon concluding the hire contract, the hiring party assigns to us – to the amount of the agreed hire price – its claims against its clients on whose behalf the hired item is used. We hereby accept said assignment. The hiring party has an obligation to fully inform us about its client and its claim against this client when so requested to by us.
9. Sub-hire and operators
Sub-hire by the hiring party is not allowed. Authorised operators are staff and family members of the hiring party, provided that they hold a valid driver's licence and have received proper instruction beforehand. In the case of self-drivers, the hiring party is always liable for all claims made against us that could arise during operation of the machine, e.g. contraventions of Germany's highway code (Straßenverkehrsordnung - StVO).
10. Hire period
As a general rule, the contract covering a particular hire period cannot be terminated by either contracting party, unless there are important grounds for giving notice of immediate termination. The hiring party undertakes to give us adequate prior notice that the hired item is being returned, this being no later than 2pm on the day before the intended return date/notification of availability or by that time on the return date in the event of use for only one day. Otherwise, we are entitled to charge the hiring party for the following day, too. Allowing for on-time notification of availability, the hire period ends on the day on which the hired item, together with all parts necessary for putting it into operation, is returned to us or to our representative in proper condition as per the contract or arrives at another agreed location, but at the earliest when the contractually agreed hire period ends.
11. Place of jurisdiction and law
German law applies exclusively. Bayreuth is the sole place of jurisdiction for all disputes arising from the business relationship – including those arising from bills of exchange and cheques – if the hiring party is a business entity, legal person governed by public law or special fund governed by public law.
Should any provision of these terms of business or made within the scope of other agreements be or become invalid, then the validity of the other provisions or agreements shall not be affected. Any invalid provision shall be substituted by one that comes closest to its intended purpose. In the absence of timely substitution, invalid clauses shall be substituted by the statutory provisions.