These general terms and conditions ("GTC") apply to the contractual relationship between Lendis Assets GmbH ("Lendis") and the customer, jointly referred to as "the Parties."
The subject of the contractual relationship is the provision of office equipment, electronic articles and/or other rental items (“rental items”) for a fee and the provision of services related to the provision of the rental items.
The general terms and conditions apply exclusively to the commercial sector. Lendis does not offer its services to consumers or to business partners for whom the underlying business is not carried out in the exercise of their commercial or independent professional activity. The contract is concluded on the basis of these general terms and conditions, unless special individual agreements are made. Deviating or supplementary terms and conditions of the customer shall not become part of the contract simply because Lendis does not separately object to them, but only if Lendis expressly agrees to them in writing.
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 term, minimum contractual term and termination
The minimum contract period results from the individual agreement between Lendis and the customer. It starts on the first calendar day of the calendar month following the month of delivery.
After the expiry of the minimum contract term, the contract shall be extended by a further month in each case if it has not been terminated with a notice period of one (1) month to the end of the minimum contract term or, in the case of a contract extension, with a notice period of one (1) month to the end of the next calendar month. The same applies if, after termination of the contract, the rented items could not be collected at the end of the respective contract term but only at a later date due to the fault of the customer. During the minimum term of the contract, ordinary termination is excluded. The right to extraordinary termination without notice for good cause pursuant to § 543 BGB remains unaffected. Important reasons are in particular a delay in payment of the customer of more than two months or the opening of insolvency proceedings or the rejection of the opening of insolvency proceedings for lack of assets against the customer.
The cancellation shall require the written form to become effective.
The customer acknowledges that the contractually agreed monthly rent was calculated on the basis of a calculated term stated in the offer (“calculated term”), which is generally longer than the minimum contract term. If the contract ends due to termination by one party before the expiry of the calculated term (“early termination”), the customer is obliged to put Lendis in a position as if the shortened contract term (and the associated higher monthly rent) due to the termination had been agreed from the outset. For this purpose, the customer must make a one-off additional payment to Lendis, the amount of which corresponds to the difference between the total rent that would have been payable according to Lendis' offer list for the shortened rental period and the total rent payable under this contract for the period up to the early termination of the contract (see calculation overview of the realized term in the respective offer). The same applies in the event of early termination by Lendis for which the customer is responsible (e.g. extraordinary termination due to the customer's default in payment).
If and to the extent available, Lendis shall offer the customer an exchange of individual or several rented items for rented items of a newer type (e.g. successor model of a rented electronic item) at the expiry of the minimum term of the contract (or at any other time). If the customer decides in favour of the exchange model(s) offered, he shall receive a new contract offer from Lendis with adjusted rent and/or adjusted fees. Upon acceptance of the contract offer by the Customer, a new contract with a new minimum contract term shall come into existence between the Parties. The new minimum contract term shall commence in accordance with section 2.1 on the first calendar day of the calendar month following the calendar month of delivery of the exchange models. It cannot be ruled out that delivery bottlenecks on the part of the manufacturer may result in delayed delivery or impossible delivery of individual or several exchange models. In this case, the new minimum contract term for the respective exchange models shall begin on the first calendar day of the calendar month following the calendar month of the delayed delivery of the exchange models. The customer shall return exchanged rental items to Lendis within 14 days after delivery of the exchange models.
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.
If the rented items are returned within a current contract month, Lendis is entitled to charge for the full contract month in which the return occurs.
In the event of extraordinary termination for which the customer is responsible, Lendis shall be entitled to charge the customer for the full calendar month in which the return takes place.
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 rental payment for the first month of the contract and the payment of other agreed fees for the first month of the contract are due upon acceptance of the offer. Payment shall be made by bank transfer, direct debit or, by agreement between the parties, by another method of payment. Subsequent payments must be received in Lendis' bank account no later than seven days after receipt of the invoice, unless another method of payment or another payment date has been agreed between the parties. Other payment terms may be agreed between the parties and must be in writing to be 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 rented items will be delivered by Lendis to the agreed location on the agreed delivery date and, if contractually agreed, assembled there. The customer is obliged to accept the rented items at the agreed location on the agreed delivery date and, if assembly has been agreed, to enable assembly by Lendis or a third party commissioned by Lendis. If the customer fails to comply with this obligation, Lendis is entitled to store the rented items at the customer's expense and to invoice the customer for the costs of a failed delivery or assembly; this does not apply if the customer is not responsible for the breach of duty. In the event of a recurrence, Lendis is also entitled to terminate the contract for good cause. If the customer wishes to change the location after delivery, Lendis is entitled to charge a fee 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
Notwithstanding Section 7 sentence 1, customers who book the insurance protection package as part of "Lendis Care" are, in the event of an insured claim, exempt from liability for damage to the leased item (including its loss, disappearance or destruction) to the agreed extent and with the exception of the deductible described below (“L免责条款iability Exemption“). The customer's deductible is 10% of the repair costs in the event of repair or 10% of the recommended retail price (RRP) of the leased item in the event of loss, disappearance or total damage. Unless otherwise agreed, the exemption from liability applies exclusively to cases of damage listed under Section 8.2, which concern the leased items mentioned under Section 8.3 and for which the exemption from liability is not excluded under 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,
Robbery.
Rental Items covered by the Exemptions from Liability are:
Notebooks, netbooks,
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.
FINAL PROVISIONS
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.
