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HPS Rental terms of business and rental

(status: January 2015)

These terms of business and rental apply to all leasings and other concluded agreements of the company HPS GmbH, hereinafter known as HPS Rental, to entrepreneurs/companies or with entrepreneurs/companies in the sense of § 310 sect. 1 BGB, legal persons under public law and fund assets under public law. We do not recognise any opposing or different conditions on the part of the lessee or customer, unless we have expressly agreed to their validity in writing. Our terms of business and rental shall also apply if we have handed over rented property or the delivery item to the customer unconditionally with the knowledge of conditions of the customer which oppose or are different from our conditions.

1. Purpose of rental, beginning of rental
1.1 HPS Rental shall hand over to the lessee based on the rental agreement concluded in writing and in accordance with the order confirmation of HPS Rental rented equipment and accessories (hereinafter known as RE) for use as intended.
1.2 HPS Rental shall have the right to substitute RE which is suitable in the same way for use according to the agreement for the RE during the rental agreement. The substitution must be announced to the customer at least 24 hours beforehand. The customer shall be obliged in this case to guarantee access and loading possibilities for equipment substitution.
1.3 The lease shall be made for a firmly agreed period or for an undetermined period, but with a firmly agreed minimum rental period.
1.4 The rental period shall begin on the day on which the rented equipment is handed over to the lessee. This is the day on which the RE is loaded or handed over to a haulage contractor on the company grounds of HPS Rental for transport to the customer or the place of deployment appointed by the latter.
1.5 If the RE is not is serviceable condition at the beginning of the rental period and the lessee has indicated the fact to HPS Rental according to numbers 4.2 and 4.3 of these terms of business, the rental period shall begin with correction of the defect. This point in time and the contractual serviceability of the RE are to be jointly determined by the contractual partners. If the lessee refuses to cooperate in this determination after correction of the defect, the rental period shall begin on the days after correction of the defect.

2. Delivery period and consequences of delay
2.1 The beginning of the delivery period indicated by HPS Rental assumes clarification of all technical matters, particularly any documents, approvals and releases towards HPS Rental to be obtained by the lessee.
2.2 A condition of compliance with our obligation to deliver shall furthermore be the timely and correct fulfilment of for example an advance performance of the lessee, in particular by making an agreed payment of rent. The objection of non-compliance with the agreement shall remain.
2.3 The delivery period is complied with if the RE is available to the lessee until expiry of the period.
2.4 The delivery period shall be appropriately extended in case of act of God. This includes in particular labour disputes, e.g. strike and lockout, in addition to other unforeseen impediments beyond the control of HPS Rental, insofar as such impediments demonstrably considerably influence the completion or delivery of the RE. The same applies accordingly if the circumstances have occurred on the part of the lessor’s suppliers.
2.5 If the lessee defaults in acceptance or culpably breaches other duties to collaborate, HPS Rental shall be entitled to demand compensation for the damages arising to the latter in this respect, including any additional expenditure. The right to further claims shall be retained. In such cases, HPS Rental shall also be entitled, after the fixing and expiry without effect of an appropriate deadline, to dispose of the rented equipment by other means.
2.6 HPS Rental shall be liable according to the legal regulations, insofar as the underlying rental agreement is a purchase for delivery at a fixed time in the sense of § 286 sect. 2 no. 4 of the BGB and of § 376 of the HGB. HPS Rental shall also be liable according to the legal regulations, to the extent that as a result of a delay in delivery for which HPS Rental is responsible, the customer is entitled to assert that the latter’s interest in further
fulfilment of the agreement has ceased.
2.7 Furthermore, HPS Rental shall be liable according to the legal regulations provided that the delay in delivery is based on a deliberate or grossly negligent breach of agreement for which HPS Rental is responsible; a fault on the part of the latter’s representatives or agents of vicarious liability is to be attributed to HPS Rental. Insofar as the delay in delivery is not based on a deliberate breach of contract for which HPS Rental is responsible, the liability for damages on the part of HPS Rental is limited to the foreseeable, typically occurring damage. We are also liable according to the legal regulations provided that the delay in delivery for which HPS Rental is responsible is based on the culpable breach of an essential obligation under the agreement; in this case, the liability for damages is also limited to the foreseeable, typically occurring damage.
2.9 Furthermore, HPS Rental shall be liable in case of delay in delivery for each complete week of delay within the context of flat rate compensation for delay totalling 5 % of the daily rent, but limited to a maximum however of 10 % of the agreed order sum.
2.10 The lessee shall retain the right to other inalienable legal claims and rights.
2.11 Unless otherwise agreed above, the liability of HPS Rental for consequences of delayed delivery shall be ruled out.

3. Rent, rent additional costs, invoicing, payment of rent, delay in payment, right of retention and offsetting
3.1 The rent is measured according to calendar days. The respective statutory value added tax is added to the contractually agreed rent. If an express definition of the rent is lacking, the rent for the RE indicated in the current pricelist of HPS Rental at the time of delivery shall be considered agreed upon, plus the statutory value added tax.
3.2 The haulage costs for the delivery and return of the rented property shall be borne by the lessee, in addition to the rent and likewise any loading and unloading costs in addition to connection and installation costs etc., plus all costs for fuels and expendable parts. This shall not apply if the haulage costs are occasioned by a fault for which the lessor is responsible and no other agreement is made in the individual case.
3.3 If the RE is leased with HPS Rental personnel, no. 3.1 shall apply with the instruction accordingly that the lessee must bear the costs arising on the occasion of a weekly exchange of personnel in addition to the rent and personnel costs.
3.4. Partial invoices will be issued after 15 days respectively, in any case however on annual closure of accounts.
Short-term rentals (of less than 15 days) will be invoiced by HPS Rental at the end of the rental at the latest.
3.5 The rent is to be paid within 7 days after submission of the invoice (= 10 days at the latest after the invoice date) with deduction of 2 % discount or within 30 days after submission of the invoice and reception of the service in return without deduction. The personnel costs shall be due within the same period without deduction of discount.
3.6 If the lessee falls in arrears with the payment of an amount due for more than 7 calendar days, the lessor shall be entitled to collect the RE at the costs of the lessee, who must allow access to the RE and dispose of the latter by other means, without any need to terminate the agreement without notice. The claims to which the lessor is entitled under the agreement shall remain, provided that they have not become invalid due to collection of the RE. HPS Rental must however have credited to itself that which after deduction of the costs arising from the collection and further disposal, by other use of the RE within the agreed period of the agreement, particularly by new lease,
has been acquired.
3.7 The lessee is forbidden under the contract from exercising a right of retention towards the claims of HPS Rental, provided that the right of retention is not based on the same contractual relationship.
3.8 The lessee may only offset with claims that are undisputed or established with force of law.
4. Defects of the rented equipment, inspection and complaint obligation of the lessee, responsibility for defects of the lessor
4.1 The RE shall be sent or provided for collection by HPS Rental in a perfect and operational condition.
4.2 After reception/acceptance of the RE, the lessee must inspect the RE immediately and complain to HPS Rental about visible defects immediately in writing, at the latest before commissioning. After expiry of the complaint period, the RE shall be considered as delivered as per the agreement.
4.3 If the RE shows any defects damage or malfunctions on commissioning or during the rental period, the lessee must report these to the lessor immediately after their discovery.
4.4 If the RE shows a defect for which the lessee is not responsible on commissioning or during the rental period and which requires shutdown of the RE, the rental period will be interrupted from the occurrence of the defect until correction of the latter on immediate reporting of the defect in the sense of no. 4.3. Furthermore, no. 2.4 shall apply accordingly in this case.
4.5 Insofar as a defect in the rented property exists for which HPS Rental is responsible, HPS Rental shall be entitled at it choice to subsequent fulfilment in the form of correction of the defect or delivery of other rented property free of defects. In the case of correction of the defect, HPS Rental shall be obliged to bear all the expenditure required for the purpose of remedying the defect, particularly transport, road, labour and material costs, provided that these are not increased by the fact that the rented property has been brought to another place of performance. For the purposes of remedying the defect as rapidly as possible, the lessee must immediately give HPS Rental the opportunity to repair and ensure free access to the rented property with appropriate consideration of the lessee’s course of business. Furthermore, the lessee shall undertake, to interrupt work for the repair insofar as this is reasonable for
the lessee. The lessee shall be liable towards HPS Rental for consequential damage resulting from knowingly working with faulty equipment.
4.6 If the subsequent fulfilment comes to nothing, the lessee shall be entitled at the latter’s choice to withdraw from the agreement or demand a reduction in rent.
4.7 HPS Rental shall be liable according to the legal regulations, insofar as the lessee asserts claims for compensation for damage based on deliberate action or gross negligence of our representatives or agents of vicarious liability. Insofar as HPS Rental is not proven to have deliberately breached the agreement, the liability for damages due to the defect shall also be limited to the foreseeable, typically occurring damage.
4.8 HPS Rental shall also be liable according to the legal regulations, provided that HPS Rental has culpably breached an essential obligation under the agreement; in this case too however, the liability for compensation for damages is limited to the foreseeable, typically occurring damage.
4.9 Insofar as the lessee is entitled to a claim for compensation for damages instead of the service, the liability of HPS Rental shall likewise be limited to the foreseeable, typically occurring
damage.
4.10 The legal liability owing to culpable injury to life, limb or health shall be unaffected.
4.11 Unless otherwise ruled above, liability is excluded. Exclusion of liability shall also apply if foreign equipment is stored on the premises of HPS Rental. HPS Rental shall not undertake any liability in such cases for damage to the equipment resulting from incorrect or insufficient precautions of the customer or owner such as for example defective protection against frost or those caused by other third parties or by weather influences.
4.12 Insofar as the HPS Rental liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of the staff, employees, workers, representatives and agents of vicarious liability of the lessor.
4.13 The limitation period for claims due to defects shall be 12 months, calculated as and from the transfer of risk.

5. Transfer of risk
5.1 With transfer of the RE to the lessee according to no. 1.3 or its collection by the lessee or in case of default in acceptance of the lessee, the risk of the accidental perdition and accidental deterioration of the RE is transferred to the lessee.

6. Obligations of the lessee
6.1 The customer must allow HPS Rental and all the persons appointed by HPS Rental, insofar as this is reasonable to the customer with appropriate consideration for the latter’s course of business, to have access at all times to the RE.
6.2 The lessee shall undertake to refrain from any overtaxing of the RE, taking account of the operating instructions and if appropriate performance limits.
6.3 The lessee must conduct the maintenance and care of the RE appropriately and properly. The lessee shall undertake in particular to keep the RE in operational condition taking account of the operating and maintenance guidelines and ensure inspections determined by use according to the accident prevention regulations (UVV).
6.4 In case of any maintenance work that becomes necessary on the RE, the lessee must inform HPS Rental immediately (compare no. 4.3 and 4.4) and agree with HPS Rental taking account of no. 4.5 who shall perform the repair Spare parts required for this purpose must be obtained in each case by the lessor. The lessee must perform the maintenance and repair of the RE at its own costs (compare no. 3.2) appropriately and properly.
6.5 The lessee must not modify the RE in any way, unless these measures are agreed with HPS Rental in writing.
6.6 The lessee may not grant third parties any rights to the RE (e.g. rental, lease) or assign rights from the respective agreement with HPS Rental. Leasing or loaning to third parties requires the written agreement of HPS Rental. Should a third party assert rights to the RE by confiscation, garnishment or the like, the lessee shall undertake to make an immediate report to HPS Rental in writing and inform the
third party in writing in of the property right of HPS Rental.
The costs of any third party debtor action required on the part of HPS Rental shall be borne by the lessee.

7. End of rental, return and consequences of faulty return in addition to loss of the RE at the lessee’s premises
7.1 The rental period for which rent is due shall end after expiry of the contractual relationship on the day of return of the RE to HPS Rental subject to the condition that the RE is
available to HPS Rental in complete cleaned condition and with all the rented accessories. If the RE is delivered after close of business of HPS Rental - the usual business hours are decisive - , the following day shall be considered the end of rental.
7.2 If the RE is returned in a state that reveals that the lessee has not fulfilled the latter’s obligations determined in no. 5, the rental period shall be prolonged by the time required in order to conduct the necessary repairs and cleaning.
7.3 The costs for remedying defects and damage in addition to soiling as a result of use in breach of the agreement, insufficient maintenance and/or cleaning of the RE by the lessee shall be borne by the lessee. The repairs required in order to remedy the defects and damage are to be announced according to scope and costs to the lessee before the beginning of the repairs. If the parties cannot agree on the scope and costs, an expert must be called in. The repairs will be conducted by HPS Rental.
7.4 Should the customer, for any reason whatsoever, even if the customer is not responsible for the latter or is incapable owing to an act of God of fulfilling the obligation to return the RE incumbent on the customer according to no. 7.1, the customer shall be primarily obliged to provide HPS Rental compensation of equal value in kind. HPS Rental nevertheless has the right to demand financial compensation instead of the compensation in
kind. In this case, the payment which is necessary to acquire equipment of the same value is to be made. The agreed rent must continue to be paid by the customer to HPS Rental until
HPS Rental has received the full-value compensation.

8. Termination
8.1 A rental agreement concluded for an indefinite period may be terminated by both parties on any day for termination on the following day.
8.2 The right of extraordinary termination of a rental agreement concluded for a definite or indefinite period is laid down by law for both parties.

9. Sale of equipment after prior rental
9.1 If the lessee decides during the existence of a rental agreement concluded for an indefinite period to purchase a brand-new device or the used RE, the rental relationship prior to the purchase shall end on the day of transfer of property in accordance with the purchase agreement, provided that HPS Rental receives on purchase of a new device the RE from the lessee on this day returned in a condition as per the agreement (compare fig. 7.1).
9.2 Any transport costs arising for the return shall also be down to
the lessee in this case.
9.3 In case of a purchase of a new device following prior rental, these conditions shall apply accordingly for conclusion of the sales agreement, unless otherwise agreed between the parties in an individual agreement.

10. Applicable law, subsidiary agreements, court of jurisdiction, place of performance, concluding provision, data processing
10.1 German law shall apply between the parties to the agreement; UN law is expressly excluded.
10.2 Subsidiary agreements shall only be valid if made in writing.
10.3 Insofar as the lessee is a businessman or a legal person under public law, the court of jurisdiction shall be Celle owing to the HPS Rental company head office in Eicklingen.
10.4 Unless otherwise agreed in writing with the lessee, or from the order confirmation of HPS Rental, the HPS Rental company head office shall be the place of performance.
10.5 Should any provision of these rental conditions be invalid, the other provisions shall be unaffected.
10.6 The data in connection with the conclusion and handling of this rental agreement will be processed at the lessor’s or the latter’s associated companies subject to the legal regulations.
The address of the respective recipient of data will be communicated on request.

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