General Terms and Conditions of GERKEN GmbH

General Terms and Conditions of the GERKEN Webshop
Rental conditions GERKEN GmbH
Conditions for exemption from liability GERKEN GmbH
General Terms and Conditions of the German Heavy Haulage and Crane Work Association
Repair conditions of GERKEN GmbH
Privacy policy

General Terms and Conditions of the GERKEN Webshops

1. Scope of application
2. Offers and service descriptions
3. Ordering process and conclusion of contract
4. Prices and shipping costs
5. Payment modalities
6. Warranty for material defects and guarantee
7. Liability
8. Storage of the contract text
9. Final provisions

1. Scope of application

1.1. For the business relationship between

GERKEN GmbH
In der Steele 13
40599 Düsseldorf
Represented by:
Christian Gerken, Markus Liffers

Telefon: 0211/97476-0
E-Mail: info@gerken.eu

(hereinafter referred to as the “Lessor”) and the customer (hereinafter referred to as the “Lessee”), the following General Terms and Conditions of Business of the online store shall apply in the version valid at the time the order is placed via the online store.

In addition, the rental conditions of GERKEN GmbH apply to the rental of work platforms, forklifts, mini cranes and other rental equipment and the rental conditions of GERKEN Mietservice GmbH apply to space containers and emergency vehicles. For orders with a Dutch billing address, the “Huur- en handelsvoorwaarden” of GERKEN Hoogwerkers BV apply.

1.2. You can reach our customer service for questions, complaints and objections on weekdays from 7:00 to 18:00 by calling 0211/97476-0 or by e-mail at webshop@gerken-arbeitsbuehnen.de

1.3. A consumer within the meaning of these GTC is any natural person who concludes a legal transaction for a purpose that cannot be attributed primarily to their commercial or independent professional activity (Section 13 BGB).

1.4. Deviating conditions of the Lessee are not recognized unless the Lessor expressly agrees to their validity.

2. Offers and service descriptions

The presentation of the products in the online store does not constitute a legally binding offer, but an invitation to place an order. Service descriptions in catalogues and on the Lessor's websites do not have the character of an assurance or guarantee.

All offers are valid “while stocks last”, unless otherwise stated for the products. Errors excepted.

3. Ordering process and conclusion of contract

3.1 The Lessee can select products from the Lessor's range without obligation and collect them in a so-called shopping cart using the [add to cart] button. Within the shopping cart, the product selection can be changed, e.g. deleted. The Lessee can then proceed to complete the order process within the shopping cart by clicking the [Continue to checkout] button.

3.2 By clicking the [Order with obligation to pay] button, the Lessee submits a binding request to rent the goods in the shopping cart. Before submitting the order, the Lessee can change and view the data at any time and use the browser function “back” to return to the shopping cart or cancel the order process altogether. Required information is marked with an asterisk (*).

3.3 The Lessor then sends the Lessee an automatic confirmation of receipt by e-mail, in which the Lessee's order is listed again and which the Lessee can print out using the “Print” function (order confirmation). The automatic confirmation of receipt merely documents that the Lessee's order has been received by the Lessor and does not constitute acceptance of the application.

The rental contract is only concluded when the Lessor has delivered the ordered product to the Lessee, handed it over or confirmed it with a second e-mail, express order confirmation or sending of the invoice.

4. Prices and shipping costs

4.1. All prices stated on the Lessor's website include the applicable statutory value added tax. If the Lessee is registered as a company in the store, the prices are shown excluding VAT.

4.2. In addition to the prices quoted, the Lessor charges delivery costs. The delivery costs are clearly communicated to the Lessee on a separate information page and at the end of the order process.

5. Payment modalities

5.1. The Lessee can choose from the payment methods available to him during and before completion of the order process. Hirers will be informed of the available means of payment on a separate information page

5.2. If payment by invoice is possible, payment must be made within 30 days of receipt of the goods and the invoice. For all other payment methods, payment must be made in advance without deduction.

5.3. If third-party providers are commissioned with payment processing, e.g. BS Payone, their general terms and conditions apply.

5.4. If the due date for payment is determined according to the calendar, the Hirer shall be in default by missing the deadline. In this case, the Lessee must pay the statutory default interest.

5.5. The Lessee's obligation to pay default interest does not preclude the Lessor from claiming further damages caused by default.

5.6. The Lessee shall only have a right of set-off if his counterclaims have been legally established or recognized by the Lessor. The Lessee may only exercise a right of retention if the claims result from the same contractual relationship.

6. Warranty for material defects and guarantee

6.1. The warranty is governed by statutory provisions.

6.2. A warranty shall only apply to goods supplied by the Lessor if it has been expressly given. Hirers will be informed of the warranty conditions before the order process is initiated.

7. Liability

7.1. The following exclusions and limitations of liability shall apply to the Lessor's liability for damages, notwithstanding the other statutory requirements for claims.

7.2. The Lessor shall be liable without limitation insofar as the cause of the damage is based on intent or gross negligence.

7.3. Furthermore, the Lessor shall be liable for the slightly negligent breach of essential obligations, the breach of which jeopardizes the achievement of the purpose of the contract, or for the breach of obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the Lessee regularly relies. In this case, however, the Lessor shall only be liable for foreseeable damage typical of the contract. The Lessor shall not be liable for the slightly negligent breach of obligations other than those specified in the above sentences.

7.4. The above limitations of liability shall not apply in the event of injury to life, limb or health, for a defect following the assumption of a guarantee for the quality of the product and in the event of fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.

7.5. Insofar as the Lessor's liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.

8. Storage of the contract text

8.1. The Lessee can print out the text of the contract before submitting the order to the Lessor by using the print function of his browser in the last step of the order.

8.2. The Lessor shall also send the Lessee an order confirmation with all order data to the e-mail address provided by the Lessee. Together with the order confirmation, but at the latest upon delivery of the goods, the Lessee shall also receive a copy of the General Terms and Conditions together with the cancellation policy and the information on shipping costs and terms of delivery and payment. If you have registered in our shop, you can view the orders you have placed in your profile area. We also save the text of the contract, but do not make it accessible on the Internet.

9. Final provisions

9.1. The place of jurisdiction and place of fulfilment is the registered office of the Lessor if the Lessee is a merchant, a legal entity under public law or a special fund under public law.

9.2. The contract language is German.

9.3. Platform of the European Commission for online dispute resolution (OS) for consumers: http://ec.europa.eu/consumers/odr/. We are not willing and not obliged to participate in a dispute resolution procedure before a consumer arbitration board.

Rental conditions GERKEN GmbH

1. General / Conclusion of contract:

1.1. Offers are always subject to change without notice. We reserve the right to make price changes and interim lettings. Prices quoted are subject to VAT.

1.2. Without a separate written agreement, the Lessee has no right to be provided with a specific device. The designation of a specific device in the order confirmation is not an agreement in the above sense, but only an internal disposition note. GERKEN is entitled to provide replacement equipment which is technically equivalent and also meets the lessee's operational requirements.

1.3. The Lessee is obliged to inform GERKEN of the location of the rental item.

1.4. Without the prior written consent of GERKEN, the lessee is not entitled to transfer the rental object to third parties.

2. rental period / deposit / delay / handover / return / liability:

2.1. Delivery dates are generally non-binding. Fixed dates must be expressly agreed separately in writing.

2.2. If GERKEN is in default with the handover of the rental object and a fixed date has not been agreed in accordance with 2.1, GERKEN shall only be liable in the case of slight negligence for reasonably foreseeable damage typical of the contract, limited to three times the agreed daily rent for each day of default. If GERKEN does not fulfill its contractual obligation despite setting a grace period, the lessee may withdraw from the contract. Withdrawal does not exclude termination by GERKEN.

2.3. The rent is calculated with a maximum of 8 hours per day for a 5-day week (Monday - Friday). If the rental object is used beyond this and/or on Saturdays, Sundays and public holidays at the place of use, GERKEN reserves the right to charge for these times.

2.4. Agreements on a different period of use require written confirmation by GERKEN.

2.5. If the Lessee does not accept the rented object, this shall be deemed termination if no fixed rental period has been agreed, but only an expected rental period. The lessee is obliged to pay the agreed rent plus ancillary costs and VAT until expiry of the notice period (clause 2.8.), but for at least one day. GERKEN is entitled, but not obliged, to dispose of the rented item elsewhere. Rents obtained in this way shall be credited against the lessee's liability.

2.6. A handover protocol shall be completed and signed by both parties at the same time as the handover of the rental object. The recorded condition of the rented property at the time of handover is binding for both parties. The Lessee shall bear the burden of proof for the existence of any visible or detectable damage or defects not documented there at the time of handover.

2.7. If defects occur after handover of the rental item, these must be reported immediately in writing. The device must be shut down immediately in the event of technical defects.

2.8. Termination before the start of the rental period is excluded unless there is an important reason for which the other party is responsible. If no fixed rental period has been agreed, the cancellation period shall be 1 day if the rent is calculated by days, 2 days if the rent is calculated by weeks and 1 week if the rent is calculated by months.

2.9. At the end of the rental period, the Lessee is obliged to return the rented object to the place where it was made available by 5 p.m. at the latest, having cleaned it. Any deviating agreements must be made in writing.

2.10. Upon return, a return protocol shall be drawn up and signed by the parties. This shall record the time of return and the condition of the rented object and, in particular, document any damage ascertainable upon return for verification purposes. The burden of proof for the incorrectness of the return report shall be borne by the Lessee.

2.11. In the event of late return, the Lessee shall be obliged to pay compensation in the amount of the agreed rent plus ancillary costs and VAT for each additional day or part thereof. If he is in default with the return, he must also pay a contractual penalty amounting to 80% of the agreed rent plus ancillary costs. Otherwise § 546 a BGB applies.

2.12. If the rental object is returned before the agreed end of the rental period for a reason for which GERKEN is not responsible, the lessee is obliged to pay the agreed rent plus ancillary costs and VAT until the end of the contract. In addition, section 2.5. sentences 3 and 4 shall apply.

3. Operating staff / liability of the Lessee:

3.1. The persons intended to operate the rental object must be at least 18 years of age and in possession of the required proof of suitability and/or a valid driver's license, which must be presented on request. The Lessee shall be provided with the operating instructions together with maintenance and safety instructions upon handover. The accident prevention regulations are available for inspection on the business premises. The Hirer may only operate the rented item in compliance with the maintenance and safety instructions. The rented item may only be used as intended. Craning the rented item is prohibited.

3.2. If the rental object is rented with operating staff, the operation is the sole responsibility of this personnel, who may not be called upon for other work, in particular the slinging of loads.

3.3. GERKEN shall only be liable for damage caused by the operating staff - with the exception of statutory liability cases - if the operating personnel have not been properly selected. Liability for damage to loads moved by operating personnel (hook risk) is additionally limited to a maximum of EUR 50,000.00 GERKEN will not assume the slinging risk under any circumstances.

3.4. GERKEN shall only be liable for the provision of cranes as the provision of lifting equipment including operating personnel to the lessee for the performance of work in accordance with the lessee's instructions and crane work as the transportation of goods, in particular the lifting, moving and relocation of loads and/or persons for work purposes with the aid of lifting equipment as the performance of one or more agreed lifting manoeuvres by GERKEN according to its own disposition, in particular also the isolated handling of heavy goods with the aid of a crane, in accordance with the General Terms and Conditions of the German Heavy Transport and Crane Work Association (Bundesfachgruppe Schwertransporte und Kranarbeiten): www.gerken-arbeitsbuehnen.de/en/agb

4. Warranty / Liability / Limitation of liability / Obligations:

4.1. If the lessee has notified GERKEN immediately of any defects in the equipment, GERKEN shall, at its discretion, either rectify the defect or provide an equivalent replacement device. In the event of defects which significantly impair the usability of the rental object, the lessee shall be released from its obligation to pay the rental fee for the period of repair. Furthermore, GERKEN shall not be liable for any damage incurred by the lessee as a result of an initial defect in the equipment for which the lessor is not responsible, unless further liability is stipulated in Clause 4.2./4.3.

4.2. In the event of culpable breach of material contractual obligations, GERKEN shall only be liable for reasonably foreseeable damage typical of the contract, except in the case of physical injury, intent or gross negligence on the part of the managing directors or senior executives. Furthermore, the lessee may only claim damages if the damage is due to intent or gross negligence on the part of GERKEN's managing directors or senior executives.

4.3. The above provisions shall not apply in cases in which liability exists under the Product Liability Act for personal injury or property damage to privately used items in the event of defects in the rented item.They also do not apply in the absence of properties that are expressly warranted if the purpose of the warranty was precisely to protect the hirer against consequential damage.

4.4. Vehicles/equipment registered for road traffic are covered by liability insurance in accordance with the statutory provisions. Damage to the rented object is not covered by the insurance. Vehicles/equipment not approved for road use are never covered by liability insurance.

4.5. The lessee has the option of limiting its liability to GERKEN for damage to the rental object. Special conditions apply for this, which can be viewed at www.gerken-arbeitsbuehnen.de/en/agb

4.6. If the lessee does not return the rental object in the condition stipulated in the contract (e.g. uncleaned, with paint and concrete residue or damaged), the Tenant shall bear the cleaning and/or repair costs. For the repair and/or cleaning time, the Hirer shall pay a flat-rate compensation amounting to 120% of the pro rata rental price paid by him. The Hirer reserves the right to prove that no or less damage has occurred.

4.7. The lessee is not entitled to carry out repairs to the rental object himself or have them carried out by third parties.

4.8. In the event of an accident or loss of the rental object, the police must be called. GERKEN must be notified immediately in the event of any damage.

5. Terms of payment / GERKEN's right of withdrawal:

5.1. The agreed rent plus ancillary costs and VAT must be paid in advance and is due immediately after invoicing. If the invoice is not issued until after the return of the rental object, the rent shall be deferred until then.

5.2. GERKEN is entitled to issue interim invoices.

5.3. If the lessee is one week in arrears with the payment of a due invoice, GERKEN may terminate the rental agreement without notice and, after giving one day's notice, collect the rental object at the expense of the lessee without judicial assistance and dispose of it otherwise. The Lessee must facilitate access to the rental object and its removal.

5.4. The above provision shall apply mutatis mutandis after termination of the contract if the Lessee fails to meet its obligation to return the rented item.

6. Prohibition of set-off and assignment:

6.1. The Lessee may not set off claims, unless these have been legally established or are undisputed, against the rent claims or other claims of GERKEN or assert rights of retention.

6.2. The assignment of claims of the lessee arising from this contract to third parties is excluded.

7. Place of jurisdiction / applicable law:

7.1. If the lessee is a merchant, a legal entity under public law or a special fund under public law, any disputes arising from the contractual relationship - including claims relating to bills of exchange and cheques - must be brought before the Düsseldorf Local or Regional Court. GERKEN is, however, also entitled to bring an action at the lessee's registered office.

7.2. This contract shall be governed exclusively by the law of the Federal Republic of Germany.

Conditions for the GERKEN GmbH indemnity against liability

With reference to 4.5. of the GERKEN GmbH Rental Terms and Conditions, the Lessee and authorized drivers are indemnified by GERKEN against the following risks:

Damage to the rental object due to

incorrect operation,
accident, i.e. due to a sudden external event with mechanical force, and willful or malicious acts by persons outside the company. This also includes pure braking, operational and breakage damage
direct impact of storm, hail, lightning or flooding on the rented object. A storm is defined as a weather-related air movement of at least wind force 8. Damage caused by objects being thrown onto or against the rental object by these forces of nature is included,
a collision of the rented property in motion with furred game within the meaning of § 2 Para. 1 No. 1 of the Federal Hunting Act

This also includes breakage damage to the glazing of the rental item and damage to the wiring due to a short circuit. Damage/destruction of the tires is only covered if it is caused by an event that has also caused other damage to the rental object that is subject to insurance cover.

The exemption from liability does not cover

Damage caused by the driver's behavior as a result of the above-mentioned forces of nature
Damage caused by the transportation of the rented item, in particular when lifting, loading or craning it.

The exemption from liability does not apply to damage caused by intentional behavior. In the event of grossly negligent behavior, GERKEN is entitled to reduce the indemnification in proportion to the severity of the lessee's fault. Gross negligence may be deemed to have occurred in particular if

the maximum clearance height of bridges, underpasses, tunnels, etc. is not observed,
the rental object is moved with the jib not fully retracted and lowered,
the work platform is put into operation on ground with insufficient load-bearing capacity,
the rental object is used contrary to its intended purpose, e.g. for lifting loads, or the maximum load capacity is exceeded,
the rental item is operated by untrained personnel,
the rented item has been driven or operated while intoxicated (alcohol, drugs or medication).

The exemption from liability does not cover soiling of the rental object with paint, paint mist or other adhesions such as concrete or damage caused by welding work or similar. The hirer must ensure that the rental object is properly covered if necessary.

In the event of damage, the hirer must notify GERKEN immediately and provide all necessary information about the circumstances of the damage. In the event of an accident, the police must also be called. Failure to comply with these obligations may result in a reduction of the indemnity in accordance with the severity of the Lessee's fault.

The excess per claim is between Euro 1,000.00 and Euro 4,000.00 as agreed.

General Terms and Conditions of the Federal Specialist Group for Heavy Transport and Crane Work (AGB-BSK Kran und Transport 2013)

I. GENERAL SECTION

1. All our crane and transport services as well as rough assemblies are subject to the following terms and conditions, unless mandatory statutory provisions (e.g. HGB or CMR, CMNI/CLNI, CIM/COTIF or MÜ) provide otherwise.

2. Crane services within the meaning of these terms and conditions are provided in two standard service types:

2.1. Service type 1 - Crane provision refers to the provision of lifting equipment including operating personnel to the client for the performance of work in accordance with the client's instructions and scheduling.

2.2. Service type 2 - Crane work is the transport of goods, in particular the lifting, moving and relocation of loads and/or persons for work purposes with the aid of a hoist and refers to the performance of one or more agreed lifting manoeuvres by the contractor in accordance with its instructions and disposition. This includes in particular the isolated handling of heavy goods with the aid of a crane.

3. Transport services within the meaning of these terms and conditions are the commercial transport of goods as well as the movement or relocation of goods, in particular by means of special transport aids such as heavy-duty rollers, armoured rollers, roller carriages, lifting jacks, air cushions, hydraulic lifting frames and lifting gantries, etc. (so-called floor and cross transports), including the associated transport-related interim storage.

Heavy goods are regularly transported unpacked and unplanned. With the exception of sea freight, the contractor shall only be responsible for packing and planning the cargo as well as loading, stowing, lashing and unloading if this has been agreed. In the case of ship transport, the client agrees to open deck loading.

4. Rough assembly and disassembly are, if agreed, part of the crane or transport service. This includes the assembly or disassembly as well as the fastening or loosening of the load for the purpose of transport preparation or handling. For assembly services going beyond this (final assembly, test run, fine adjustments, etc.), the latest version of the BSK Terms and Conditions of Assembly shall apply.

5. The results of site inspections and special agreements, e.g. regarding the loading and unloading location, crane location, etc., should be recorded by the parties.

6. Contracts for the transport of large and heavy loads and crane movements on public roads require a permit or authorisation from the competent authority, in particular in accordance with § 18 I 2 and § 22 II, IV and § 29 III and § 46 I No. 5 StVO as well as § 70 I StVZO. These contracts are concluded exclusively subject to the condition precedent of the timely granting of a permit or authorisation.

7. If traffic management measures (police escort, etc.) or other conditions and ancillary provisions are imposed by the authorities to maintain the safety and ease of road traffic and/or to protect the road structure, these contracts are also subject to the condition precedent of the timely availability of the security forces and the timely implementation of the official security measures. The contractor undertakes to apply for the necessary official permits and authorisations in good time in accordance with the relevant administrative regulations and to inform the client immediately of any conditions and ancillary provisions relating to the execution of the transport that could impede or obstruct the transport process. The BSK leaflet: Traffic control measures applies.

8. The Contractor shall be entitled to engage other companies to fulfil the contractual obligation, unless otherwise agreed.

9. The Contractor shall be entitled to withdraw from the contract to the exclusion of claims for damages if, after careful examination before or during the use of vehicles, equipment or work devices of all kinds and despite all reasonable efforts to prevent damage, significant damage to third party and/or own property and/or assets or personal injury is highly unlikely to be avoided. The exclusion of claims for damages shall not apply if the Contractor has not exercised the due care of a prudent businessman (carrier). In the event of cancellation, the fee for crane services shall be charged on a pro rata basis; the statutory provisions shall apply to transport services.

10. The Contractor shall be entitled to interrupt the assignment immediately in the event of danger to equipment, cargo, personnel and/or third parties. Weather-related interruptions shall not reduce the entitlement to remuneration, taking into account saved expenses, if the weather-related obstacles could not be overcome despite reasonable endeavours.

11. The contractor's performance shall be governed by the crane or transport order or the agreements in the international consignment note. consignment note. Only if this has been agreed shall the Contractor also provide the necessary auxiliary, instruction and other personnel as well as any necessary slingers at the Client's expense. Unless otherwise agreed, invoicing shall be based on time units (hourly or daily rates). Unless otherwise agreed, the obligation to pay commences with the departure of the lifting or transport vehicle from the Contractor's depot and ends with its return. If hourly or daily rates have been agreed, these shall also apply to the arrival and departure times and set-up times. In the case of hourly rates, each half hour or part thereof shall be invoiced; in the case of invoicing on the basis of daily rates, each working day or part thereof shall be invoiced. Fees and costs for official expenses as well as all procurement costs and costs arising from official requirements and other ancillary provisions, as well as police escort fees or costs for the company's own transport security and other costs for officially ordered safety precautions shall be borne by the client, unless otherwise agreed. The agreed amounts are exclusive of value added tax, which shall be paid to the Contractor in addition at the applicable statutory rate.

II. SPECIAL SECTION

1. Section - Crane positioning

Obligations of the contractor and liability

12.1. If the Contractor's main service consists of the designated provision of a hoist together with operating personnel to the Client for the performance of work in accordance with the Client's instructions and disposition, the Contractor shall owe the provision of a hoist which is suitable in general and in particular, which is TÜV and UVV tested and ready for operation in accordance with the relevant statutory provisions and the applicable rules of technology. The contractor shall only be liable for the personnel provided within the scope of the applicable principles of fault in selection.

12.2. Liability for late delivery is excluded in the event of force majeure, strikes, road closures and other unavoidable events, unless the contractor could have averted their consequences by exercising due diligence.

12.3. In all other cases of late delivery the Contractor's liability shall be limited to the typically foreseeable damage - except in cases of intent and gross negligence.

2. Section

Crane work and transport services - Contractor's obligations and liability

13. The contractor undertakes to carry out all orders placed with him properly and professionally using all available means and technical possibilities in compliance with the relevant rules of technology.

14. The Contractor undertakes in particular to use generally and specifically suitable means of transport and lifting equipment that are ready for operation, safe to operate and TÜV and UVV tested in accordance with the applicable regulations. In addition, the Contractor undertakes to provide generally and specifically suitable operating personnel (crane operators and drivers) who are familiar with the operation of the means of transport or lifting equipment.

15.1. If the Contractor's main service consists of crane work and/or transport services, the statutory provisions on the freight business shall apply. The Contractor's liability for damage to goods - except in cases of qualified fault - is limited to 8.33 special drawing rights (SDR) per kilogramme of damaged or lost goods. In the case of transport by ship, the Contractor shall be liable in such cases for a maximum of 2 SDR per kilogramme of gross weight of the consignment or a maximum of 666.6 SDR per package or unit.

15.2. The Contractor waives the defence of limitation of liability in accordance with clause 15.1. for damage to goods up to the amount of € 500,000.00 and for other financial losses up to the amount of € 125,000.00, in each case per loss event.

15.3. The Contractor shall not be liable if the damage was caused by the behaviour of his staff, the ship's crew or other persons in the service of the ship during the operation or other handling of the ship or by fire or explosion on board the ship.

16. If the Client requests a higher amount than that specified in Clause 15.2, this must be expressly agreed before the order is placed, and the Contractor shall be entitled to charge the Client for the costs of corresponding insurance for the higher liability.

17.1. The Contractor shall only be obliged to insure the goods if an express written order to this effect has been issued, stating the insured value and the risks to be covered; the mere statement of value shall not be understood as an order for insurance.

17.2. By accepting the insurance certificate (policy), the Contractor does not assume the obligations incumbent on the Client as policyholder; however, the Contractor must take all customary measures to maintain the insurance claim.

17.3. In the absence of any written agreements to the contrary, the Contractor shall insure the goods in accordance with the insurance conditions customary at its registered office.

Obligations of the client and liability

18. The client must create all technical conditions necessary for the proper and safe execution of the order at its own expense and risk and maintain them during the assignment. In particular, the client is obliged to keep the goods to be treated available in a condition that is suitable and ready for the execution of the order. The client is also obliged to specify the dimensions, weights and special characteristics of the goods (e.g. centre of gravity, type of material, etc.) and, in the case of crane services, the attachment points correctly and in good time.

19. The client must obtain the necessary permission from the owners to drive on third-party land, non-public roads, paths and squares and indemnify the contractor against third-party claims that may arise from unauthorised use of third-party land.

20. In addition, the client is responsible for ensuring that the ground, space and other conditions at the place of use and the access routes - with the exception of public roads, paths and squares - allow the order to be carried out properly and safely. In particular, the client is responsible for ensuring that the ground conditions at the loading and unloading site or crane site as well as the access routes are able to withstand the ground pressure and other stresses that may occur. Finally, the client is responsible for all information about underground cable shafts, supply lines, other underground lines and cavities that could impair the load-bearing capacity of the ground at the site or the access routes. The client must point out the location and presence of overhead lines, underground cables, pipes, shafts and other cavities, or other unrecognisable obstacles that could impair the stability and operational safety of the vehicles at the place of use, as well as special hazardous situations that may arise during the execution of the crane or transport service with regard to the goods to be transported and the environment (e.g. hazardous goods, contamination damage, etc.) without being requested to do so. Information and declarations by third parties which the client uses to fulfil its obligations shall be deemed to be self-declarations by the client.

21. After the order has been placed, the Client may not issue any instructions to the personnel deployed by it that deviate from the contractual agreements in terms of type and scope or that run counter to the purpose of the contract without the consent of the Contractor.

22. If the Client culpably breaches the aforementioned obligations, in particular its duty to prepare, notify and co-operate, it shall be liable to the Contractor for any resulting damage. The provisions of Section 414 (2) of the German Commercial Code (HGB) shall remain unaffected by this. The Client shall indemnify the Contractor in full against any claims for damages by third parties arising from a breach of the Client's obligations. In the event that a claim is made against the Contractor under the USchadG or other comparable public, national or international regulations, the Client shall indemnify the Contractor in full in the internal relationship, unless the Contractor has caused the damage intentionally or through gross negligence. The defence of contributory negligence shall remain unaffected by this for both parties.

III. FINAL PROVISIONS

23. The Contractor's services are advance performances and are not entitled to a discount. Unless otherwise agreed when the order is placed, the Contractor's invoices shall be paid immediately upon receipt of the invoice after fulfilment of the order. Offsetting or retention is only permitted with undisputed or legally established counterclaims, unless the client is a consumer. The Contractor shall have a right of lien and a right of retention on the goods or other assets under its control in respect of all due and non-due claims to which it is entitled against the Client arising from the activities specified in Clauses 2 to 4. However, the right of lien and right of retention does not go beyond the statutory carrier's or lessor's right of lien and the general right of retention. With regard to a right of lien and right of retention due to claims from other transport contracts concluded with the client, Section 366 (3) HGB shall apply. The Contractor may also only exercise a right of lien and right of retention due to claims from other contracts concluded with the Client if these are undisputed or have been legally established or if the debtor's financial situation jeopardises the Contractor's claim. In all cases, the period of one month specified in § 1234 BGB (German Civil Code) for the threat of the sale of the pledge shall be replaced by a period of two weeks. If the Client is in default, the Contractor may, after issuing a warning of sale, sell on the open market such quantity of the goods and assets in his possession as he deems necessary to satisfy the claim. In all cases, the Contractor may charge a customary sales commission on the net proceeds for the sale by way of pledge or self-help.

24. The place of fulfilment and jurisdiction, also for cheque and bill of exchange claims between merchants, is exclusively the registered office of the contractor. All contracts concluded by the Contractor shall be subject to German law. This also applies to foreign clients.

25. Insofar as the written form is required for declarations, remote data transmission and any other legible form shall be deemed equivalent, provided that it makes the issuer recognisable.

26. If, for contractual or legal reasons, parts of these General Terms and Conditions are ineffective or not applicable in individual cases, all other provisions shall remain unaffected; § 139 BGB is waived in this respect.

(as at 01.10.2013)

GERKEN GmbH terms and conditions of repair

for exclusive use in business transactions with entrepreneurs, all legal entities under public law or a special fund under public law

§ 1 General information

1. These terms and conditions apply to maintenance work (repairs) on construction and industrial machinery, construction equipment and their parts. Contract supplements, amendments and ancillary agreements must be confirmed in writing by the contractor in order to be valid.

2. The same applies to conflicting terms and conditions of the client without them having been expressly rejected.

3. With the transfer of the repair order, the authorisation for test drives and test operations shall be deemed to have been granted at the same time.

§ 2 Cost details, cost estimate, cancellation by the client

1. As far as possible, the client shall be informed of the estimated repair price when the contract is concluded, otherwise the client may set cost limits.

If the repair cannot be carried out at these costs or if it proves necessary to carry out additional work or use additional parts or materials, the costs may be exceeded by 20%.

2. If it becomes apparent during the execution of the work that the costs will be exceeded by more than 20 % in the interests of proper execution, the client must be informed of this and is deemed to have given his consent if he does not immediately object to an extension of the work.

3. If a cost estimate with binding price estimates is desired before the repair is carried out, this must be expressly requested by the client. Such a cost estimate shall only be binding if it is submitted in writing and expressly designated as binding.

4. If the client cancels the contract, whether due to the cost estimate being exceeded or for other reasons, the client must, however, pay the work and costs incurred up to that point, as well as the costs that can no longer be avoided, including the expenses for ordered and already procured spare parts and the profit.

§ 3 Due date and payment of the invoice amount

1.The invoice amount is due upon completion or acceptance of the repair, but no later than the date of receipt of the invoice.

The invoice amount is to be paid without deduction.

2. The Contractor may demand advance payment.

3. Complaints about an invoice must be made in writing and within 14 days of the invoice date.

4. The retention of payments or offsetting against claims of the Client that are disputed by the Contractor, are not recognised and have not been legally established is excluded.

5. The prices do not include value added tax. This will be invoiced separately to the client.

§ 4 Participation of the client

1. When carrying out the repair work, the client must provide support to the repair personnel at his own expense.

2. The client shall be responsible for the protection of persons and property at the place of repair.

3. The client is obliged to ensure appropriate working conditions and safety at the repair site.

4. The repair manager must be informed of the safety regulations to be observed - as far as necessary. Any violations of the safety regulations by the repair personnel must be reported to the contractor by the client.

§ 5 Technical assistance provided by the client

1. If necessary, the client is obliged to provide suitable assistants in sufficient numbers and for the required time at his own expense.

2. The assistants must follow the instructions of the persons entrusted with the management of the repairs by the contractor. The Contractor assumes no liability for the labour provided.

3. The client is obliged to provide the energy required for the repair (e.g. lighting, operating power, water) including the necessary connections at his own expense.

4. If necessary, the client shall provide theft-proof rooms for the storage of the repair personnel's tools and heatable recreation rooms at its own expense.

5. The client shall provide all materials and operating supplies at his own expense and carry out all other actions necessary for the adjustment of the repair item and for carrying out the testing.

6. The client must ensure that the repair work can begin immediately after the arrival of the repair personnel. Any delays for which the client is responsible shall be borne by the client.

7. If the client does not fulfil his obligations, the contractor is entitled but not obliged to carry out the actions in his place and at his expense.

8. The statutory rights and claims of the Contractor shall otherwise remain unaffected.

§ 6 Deadline for carrying out the repair

1. The information on repair times is based on estimates and is therefore not binding.

2. In the event of unforeseeable operational hindrances, e.g. work stoppages, work stoppages due to illness of skilled workers, difficulties in procuring spare parts, delays in delivery or performance by suppliers and official interventions, as well as in the event of force majeure and labour disputes, even binding delivery dates shall be extended accordingly.

3. Demonstrable damage incurred by the customer due to the contractor's delay shall be compensated, but in the case of slight negligence only up to a maximum of 5% of the net repair price. All further claims for compensation are excluded in the event of slight negligence, notwithstanding § 12 No. 3.

4. If the customer grants the contractor in default a reasonable period of time - unless there is a statutory exception - and this period is not complied with, the customer shall be entitled to withdraw from the contract in accordance with the statutory provisions. Further claims do not exist - notwithstanding § 12 No. 3.

§ 7 Acceptance of a repair, takeover by the client

1. The Contractor shall notify the Client of the completion of a repair. The sending of the invoice shall also be deemed notification. Acceptance must take place within 2 weeks of notification.

2. If the repair has not been objected to by the client at the time of acceptance or if acceptance has not taken place within the time limit, the subject matter of the contract shall be deemed to have been duly accepted.

3. If the Client is in default of acceptance, the Contractor shall be entitled to charge the Client for storage costs or, in this case, to store the subject matter of the contract at a third location.

§ 8 Risk bearing and transport

1. If the client has been notified of the completion of the repair, the risk shall pass to him.

2. The outward and return transport of the item to be repaired shall in principle be the responsibility of the client, who shall also bear the risk of loss or damage during transport.

3. If, as agreed, transport is undertaken by the contractor, this shall be at the expense and risk of the client, even if the transport is carried out using the contractor's vehicles.

4. The contract items handed over by the client for repair are not insured against fire, theft, transport and storage damage, etc. These risks must be covered by the client or the contractor. These risks must be covered by the Client or will be covered by the Contractor at the express request and expense of the Client.

§ 9 Retention of title, extended lien

1. Title to the installed units, spare parts and accessories shall remain with the Contractor, insofar as it can be reserved, until full payment has been made.

2. The contractor shall be entitled to a lien on the client's repair item that has come into his possession on the basis of the contract due to his claims arising from the repair contract. The right of lien may also be asserted for claims arising from work carried out earlier, deliveries of spare parts and other services, insofar as they are connected with the item to be repaired. The right of lien shall only apply to other claims arising from the business relationship insofar as these claims are undisputed or have been recognised by declaratory judgement.

3. As a precaution, in the event that the Client is not the owner of the repaired device or machine, the Client assigns the claim and the expectancy of transfer of ownership or retransfer to the Contractor after complete settlement of existing claims of third parties and hereby irrevocably authorises the Contractor to perform for the Client. However, the Contractor is under no obligation to fulfil in place of the Client.

§ 10 Old parts

The disposal of old parts and other items that can no longer be used is the responsibility of the client. Insofar as statutory provisions are issued that stipulate otherwise, the Client undertakes to reach an appropriate agreement with the Contractor regarding the utilisation. It should be assumed that the contractual partners will use the services of third parties to fulfil the recycling obligation.

§ 11 Claims for defects

1. The Contractor shall be liable to the Client for any repair defects in such a way that it shall, at its discretion, rectify the defects by repair in its workshop or at the location of the item to be repaired. Further claims of the Client are excluded - notwithstanding No. 3 and § 12.

2. Claims for defects shall lapse 12 months after acceptance of the repair. The discovery of such defects must be reported to the Contractor in writing without delay. If the Client has improperly carried out repair work itself or had it carried out by a third party without the Contractor's consent, the Contractor shall not be liable. The same shall apply if parts in need of replacement are not replaced at the Client's request.

3. If the Contractor - taking into account the statutory exceptions - allows a deadline set for subsequent fulfilment to elapse without success, the Client shall be entitled to the statutory right of reduction. This right of reduction shall also exist in other cases of failure of subsequent fulfilment. Only if the repair is demonstrably of no interest to the client despite the reduction can the client withdraw from the contract in accordance with the statutory provisions.

4. Of the direct costs arising from the subsequent fulfilment, the Contractor shall bear the costs of the replacement part including shipping as well as the reasonable costs for dismantling and installation, provided that the complaint is to be regarded as justified.

§ 12 Other liability of the Contractor and exclusion of liability

1. If, through the fault of the Contractor, the object of the contract cannot be used by the Client in accordance with the contract as a result of omitted or faulty execution of proposals and advice before or after conclusion of the contract as well as other contractual ancillary obligations - in particular instructions for operation and maintenance of the object of the contract - the provisions of §§ 11 (1) - (4) and 12 (3) shall apply accordingly, excluding further claims by the Client.

2. The Contractor shall be liable for property damage culpably caused by the Contractor outside the liability for defects. In the event of slight negligence, liability shall be limited in terms of reason and amount in accordance with the conditions and amount of any liability insurance taken out or to be taken out. If no liability insurance has been taken out, liability for slight negligence shall be limited to the amount of the fee for the repair.

3. In addition to these provisions, damages, including indirect damages, regardless of their nature and regardless of the legal grounds on which they are asserted, shall only be compensated by the Contractor

in the event of gross negligence,
in the event of injury to life, limb or health,
in the event of culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is jeopardised, with regard to the foreseeable damage typical for the contract,
in the case of defects that have been fraudulently concealed or
in the case of defects whose absence the contractor has guaranteed,
in cases where liability exists under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the subject matter of the contract,
Liability is otherwise excluded.

§ 13 Place of jurisdiction

If the Client is a merchant, a legal entity under public law or a special fund under public law, the place of fulfilment for payments and the exclusive place of jurisdiction - also for legal action in proceedings involving documents and bills of exchange - for both parties and for all present and future claims arising from the business relationship shall be the Contractor's head office or - at the Contractor's discretion - the head office of the branch office which concluded the contract.

(as at 01.06.2021)