These General Terms and Conditions (“GTC”) shall apply to the business relationship between Lendis Assets GmbH (hereinafter “Lendis”) and the Customer, hereinafter jointly “the Parties”.
The objects of the contractual relationship are the hiring out in return for a fee of office equipment, electronic articles, and/or other rental items (hereinafter “Rental Items”) and the performance of services connected with the surrender for use of the Rental Items.
The GTC apply exclusively to the commercial field. Lendis does not offer its services to consumers or business partners for whom the underlying business transaction is not connected with the practicing of their commercial or self-employed activity. The contractual conclusion is affected either by way of the Customer accepting an quote made to it by Lendis customised to its individual needs or by way of the Customer itself selecting Rental Item(s) and running term from the Lendis website, confirming its quote (hereinafter “quote”) and Lendis subsequently accepting the Customer’s offer. In both cases, the contract conclusion shall be affected based on these GTC, insofar as no specific individual agreements have been reached. Any deviating or supplementary terms of the Customer shall not become part of this contract merely because Lendis does not specifically object to them.
Inasmuch as no regulation has been reached in these GTC it is the statutory regulations that shall apply and not the general terms and conditions of the Customer.
The provisions of an individually agreed contract between the Parties and its annexes shall take precedence over these GTC. The GTC shall apply in addition, however.
Lendis is entitled to assign the contractual relationship including all existing rights and obligations deriving from these GTC and the respective contract, also without the collaboration of the Customer by way of a contractual transfer with debt discharging effect to another company that is economically controlled by Lendis or is affiliated to Lendis GmbH within the meaning of Sections 15 ff. AktG (Stock Companies’ Act).
CONTRACTUAL RUNNING TERM AND CANCELLATION
The minimum contractual running term may be derived from the individual agreement between Lendis and the Customer and shall commence with the delivery of the Rental Item to the Customer.
After the minimum contractual running term has expired, the contract shall be prolonged by one further month at a time, unless it is cancelled by one of the Parties on the first working day of a contractual month with effect from the expiry of that same contractual month at the very latest. An ordinary cancellation during the minimum contractual running term is ruled out. The right to cancel with immediate effect on important grounds in accordance with Section 543 BGB (German Civil Code) shall remain unaffected by this. Important grounds are, in particular, should the Customer be in default of payment for more than two months, the opening of insolvency proceedings against the Customer of the rejection of the opening of insolvency proceedings against the latter due to lack of assets.
The cancellation shall require the written form to become effective.
The Customer takes note of the fact that the contractually agreed monthly rent has been based upon a calculated running term (“Calculated Running Term”) stipulated in either the quote or the Order, which, generally, is longer than the minimum contractual running term. Should the contract be terminated by one of the Parties prior to the expiry of the Calculated Running Term (“Premature Cancellation”), the Customer shall be obliged to place Lendis in the position that it would have been in had the contractual running term shortened by the cancellation (and the higher monthly rent connected therewith) been agreed from the onset.
The Customer shall, in this case, be obliged to make a one-off extra payment to Lendis corresponding to the amount of the difference between the total rent that, according to the Lendis order summary or quotation list, would have been payable for the shortened contractual running term and the total rent payable under the terms of this contract for the period up to the Premature Cancellation of that contract. The same shall apply in the event of a Premature Cancellation by Lendis for which the Customer bears the responsibility (e.g., an extraordinary cancellation due to the Customer defaulting on payment.
If, and insofar as any such is/are available, Lendis will offer the Customer upon expiry of the minimum contractual running term (or any other point in time) the exchange of individual or several Rental Items against Rental Items of a newer type (e.g., the successor model of a rented electronic article). Should the Customer decide in favour of the replacement model(s), it shall receive from Lendis a new contractual quote with accordingly adjusted rent and/or fees. Upon acceptance of the contractual quote by the Customer, a new contract shall come into being between the Parties with a new minimum contractual running term. The new minimum contractual running term shall commence when the replacement model(s) is/are delivered to the Customer. It cannot be ruled out that, due to supply bottlenecks at the manufacturers’, the delivery of individual or several replacement model(s) might be delayed or not be possible at all. The Customer shall be obliged to return any substituted Rental Items to Lendis within 14 days of the supply of the replacement model(s).
Upon termination of the contract, the Customer shall be under an obligation to return all Rental Items; this shall not apply to any Rental Items the Customer might have purchased from Lendis.
Should the Rental Items be returned over an ongoing contractual month, Lendis shall be entitled to charge for the full contractual month in which the return takes place.
Should the Rental Items be returned after the expiry of the final contractual month, Lendis shall be entitled to charge for the extra usage period. This shall not apply insofar as Lendis should be responsible for the delayed return.
RENT, FEES, AND PAYMENT CONDITIONS
The rent and other fees to be paid by the Customer may be gathered from the individual agreement between Lendis and the Customer based upon the Lendis order summary or quotation list.
The first payment amounting to the monthly rent and any other agreed fees shall be payable for the first contractual month. Payment shall be made by bank transfer, by direct debit, or by any other mode of payment agreed between the Parties. Following payments must have been received into the bank account specified by Lendis seven days after the receipt of an invoice at the very latest unless a different mode or deadline for payment should have been agreed upon between the Parties. Other payment periods may be agreed by way of deviation from this between the parties and shall require the written form to become effective.
In the event of default on payment, Lendis shall be entitled without restriction to assert claims for the losses caused by said default (especially interest) against the Customer.
The Customer has no right to withhold payments. The customers may only offset payments against receivables that have been legally established or recognised by Lendis. The Customer may only assign claims arising from this contract to third parties with the prior written consent of Lendis.
SUPPLY AND ASSEMBLY; DISMANTLING AND COLLECTION; OTHER SERVICES
The Rental Items shall be delivered by Lendis to the appointed place at the appointed time and, insofar as this has been contractually agreed, assembled there. The Customer is obliged to accept the delivery at the agreed time and, insofar as the assembly has been agreed, to make assembly thereof by Lendis or a third party commissioned by Lendis possible. Should the Customer fail to comply with this obligation, Lendis shall be entitled to store the Rental Items at the Customer’s expense and to charge the Customer for a failed attempt at delivery or assembly; this shall not apply should the Customer not be responsible for the breach of obligation. In the event of recurrence, Lendis shall also be entitled to cancel the contract on important grounds. Should the Customer, after a delivery, wish to change to another location, Lendis shall be entitled to charge for renewed delivery and assembly according to expenditure.
Generally, the Customer shall be required to use the Rental Items at the agreed location. Should the Customer intend to use the Rented Items at any other location, the written permission of Lendis is to be obtained beforehand. Lendis shall not refuse permission, should no reasonable grounds oppose it. Reasonable grounds are given, should the Customer have changed the agreed location on several occasions within a short period.
It shall be the responsibility of the Customer to provide, at its own expense, the necessary conditions for the installation and operation of the Rental Items at its location, in particular the electrical installations required for the running of electronic devices.
The Customer shall be required to ensure that Lendis is able to dismantle and collect the Rental Items at the agreed date within normal working hours.
Lendis is entitled to avail itself of third parties in the performance of the services it owes.
The Customer undertakes to assist Lendis, free of charge, in the fulfilment of its contractual obligations to the extent necessary and to create within its sphere of operations all necessary prerequisites for the orderly implementation of an order.
DEFECTS TO THE RENTED ITEMS
The Rental Item shall be handed over to the Customer in a new or good as new condition. Other contractually agreed properties shall be oriented towards the description of the Rented Item, including photographs, in the Lendis order summary or quotation list. The Rented Item is free of defects should it correspond to the contractually agreed properties at the time of handover.
Strict liability on the part of Lendis for initial defects is excluded. Lendis is in this respect liable only in cases of gross negligence or wilful intent.
Defects are to be reported by the Customer in writing to Lendis as soon as they become known. The Customer shall be liable to Lendis for all losses suffered because of a late reporting of defects.
If a defect is given, Lendis, at its discretion, shall rectify said defect within a reasonable period either by repairing the Rental Item or delivering a new Item. Should a merely negligible defect be given that does not restrict the use of the Rental Item for its contractually foreseen purpose, the Customer shall have no entitlement to either repair of the Rental Item or delivery of a new Item. The Customer’s right to reduce the price shall not be affected by this.
Should it be discovered that no defect was given, despite one being reported by the Customer, Lendis shall be entitled to charge for the costs incurred in connection with the attempted rectification.
The claims of the Customer due to defects shall fall under the statute of limitations within 12 months of handover unless it should be the case that Lendis had deceitfully concealed the defect. In such a case, the statutory limitation periods shall apply.
LIABILITY ON THE PART OF LENDIS
Lendis shall be unrestrictedly liable for damage that it has itself caused either intentionally or through gross negligence.
Liability in cases of guaranteed properties according to the Product Liability Act and for damage to persons, i.e., violations of life, limbs, or health, as well as of freedom, apply without restriction. Unrestricted liability for defects deceitfully concealed is also covered by this.
In the event of slightly negligent breaches of essential contractual obligations (cardinal obligations), Lendis’ liability to pay compensation shall apply without restriction. Essential contractual obligations are obligations the fulfilment of which makes the implementation of the contract possible in the first place and upon the adherence to which the Customer is entitled to regularly place its trust. Otherwise, Lendis’ liability for damage caused by slight negligence is excluded. Section 6.2 of these GTC remains unaffected by this.
The above regulations apply analogously to the personal liability of the legal representatives or other persons whose services Lendis avails itself of to fulfil its contractual obligations.
The above regulations are not connected with any amendment to the statutory regulations on the burden of proof.
All claims held by the Customer that derive from the present contractual relationship to compensation for damages or expenditure shall fall under the statute of limitations 12 months after the origin of the claims. In cases of violations to the life, limbs, health, or freedom of a person, for wilful intent or cases in which Lendis has deceitfully concealed defects, as well as clams deriving from the Product Liability Act, the statutory periods shall apply.
LIABILITY ON THE PART OF THE CUSTOMER
Subject to the exceptions regulated here in Section 7 and Section 8 below, the Customer shall be liable for all damage suffered by the Rental Item (including the loss, disappearance, or destruction thereof). This shall not apply insofar as the damage should have been caused culpably by Lendis or its vicarious agents.
The Customer shall not bear responsibility for the wear and tear of the Rental Item caused by its use for the contractually foreseen purpose.
The Customer shall not be entitled to itself let the Rental Item to others.
INSURANCE PROTECTION/EXEMPTION FROM LIABILITY
By way of deviation from Section 7 Clause 1, customers are exempt from liability within the framework of the so-called “Lendis Care” insurance protection upon the occurrence of an insured event to the extent agreed and except for the deductibles described in the following from liability for damage to the Rental Item (including the loss, disappearance, or destruction thereof) (“Exemption from Liability”). The Customer’s deductibles shall amount to 10 % of the costs in the case of repair or 10 % of the recognised retail price (RRP) of the Rental Item in the event of loss, disappearance, or total write-off). Insofar as nothing to the contrary has been agreed, this Exemption of Liability shall only apply to those cases listed under Section 8.2 and which affect the Rental Items stipulated in Section 8.3 and in the case of which Exemption from Liability is not ruled out according to Section 8.4.
The following eventualities are covered by the Exemption from Liability:
Damage or Destruction of the Rental Item because of:
An operating error (e.g., due to clumsiness, lack of knowledge, or based on a misunderstanding),
Falls to the ground, breakages, damage caused by liquids,
Sabotage, vandalism, and deliberate illegal damage caused by unauthorised third parties.
Disappearance of the insured Item because of:
Theft, insofar as the item in question had been carried under personal safekeeping,
Theft, insofar as the item in question had been handed over in a locked container, which could not be see-through from the outside, in a transport company (e.g., luggage transport in a train) or as luggage deposit (e.g., luggage on board an airplane)
Theft because of burglary, insofar as the item had been left in a locked room of a building or in a locked container, which could not be looked into from the outside, (e.g., glove compartment) of a locked motor car,
Rental Items covered by the Exemptions from Liability are:
Mobile electronic entertainment devices (inter alia, mobile devices for the playing back of music and films),
Mobile devices for the taking of pictures (inter alia, photographic apparatus, cameras, camcorders),
Stationary communication devices and telephone equipment,
Stationary PC systems and full PC- packages included all components included in the package (inter alia monitor, printer, scanner, mouse, keyboard),
Mobile phones, smartphones, smartwatches, and tablets
items of furniture or office furniture, inter alia couches/sofas, tables, armchairs, separating walls, chests of drawers, shelves, stools, chairs, beds, night tables, slatted frames, mirrors, lamps, coat stands, office chairs, telephone boxes (not included items that are listed under a, b, c, d, e, f, or g, writing desks, carpets.
Exemption from Liability shall not be given in cases of:
Damage caused by war, civil war, warlike occurrences, riots, civil unrest, acts of political violence, assassinations, acts of terrorism, strikes, lockouts or industrial unrest, expropriations or acts like expropriation, confiscations, seizures, disposals, other interventions by a higher authority or damage caused by nuclear energy,
Loss of the item without any external influence, e.g., by being left behind, forgotten, or lost,
Damage due to permanent operational influences and normal wear and tear,
Damage due to the influence of the weather,
Damage caused by improper usage, or cleaning of the item, especially not in accordance with the manufacturer’s instructions,
Damage caused by the unprofessional installation, improper repair, servicing, resetting, and cleaning or any other interventions on the part of the customer or a third party not authorised by Lendis,
Damages to expendable parts and consumer materials as well as to batteries and rechargeable batteries,
Damage caused by birds, rodents, pets, pests, and vermin of all kinds.
The Customer is subject to an obligation to notify Lendis of any case of damage without delay and, insofar as this is possible and reasonable, to prevent the incurrence of any further damage. The Customer is furthermore required to document the damage that has been incurred appropriately (e.g., photo), to describe how the damage happened to Lendis in text form, and to obey all reasonable instructions issued by Lendis regarding the analysis, minimisation, and rectification of the damage. The Customer shall be required to answer truthfully and in full any questions that might be asked by Lendis pertaining to the circumstances of the damage. Any damage caused by offences committed against property is to be reported by the Customer to the police immediately and a copy of the police report is to be sent to Lendis.
The payment of any deductibles to be borne by the Customer is to be affected by the latter by way of a bank transfer. The amount of the transfer must have been received into the bank account specified by Lendis seven days after receipt of the invoice unless it should be the case that a different method of payment or different payment date has been agreed upon between the Parties.
Lendis is entitled to amend or adapt these GTC during the running term of the contract with effect for the future. Lendis shall send the amended GTC to the customer in text form prior to the intended date of their taking effect and draw particular attention to the new regulations and to the date on which they are to take effect. At the same time, Lendis shall grant the customer a reasonable period, of no less than six weeks, within which to declare whether it accepts the amended usage conditions for the continued claim of the services. Should no declaration be received within this period, which shall commence upon receipt of the notification in text form, the amended conditions shall be deemed agreed. At the commencement of this period, Lendis shall draw the customer’s attention separately to this legal consequence, i.e., the right to object, the period allowed for the objection, and the significance of remaining silent. This change mechanism shall not apply to amendments to the major contractual obligations of the Parties.
Should any stipulation of the contract concluded or of these GTC be or become invalid or contain any loopholes, this shall not affect the legal validity of the remaining stipulations.
Any side agreements and amendments to this contract shall require the written form. This shall also apply to the annulment of the written form requirement.
The laws of the Federal Republic of Germany only shall apply to this contract, under exclusion of German International Private Law, in particular its conflict of laws rules, and the UN Convention on the International Sale of Goods (CISG). Berlin is the sole court of jurisdiction for all disputes arising from this contractual relationship.
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