General Terms and Conditions
General terms and conditions for the hire of equipment from and the provision of related services by Neumann&Müller GmbH & Co. KG
I. Inclusion of the General Terms and Conditions
(1) These general terms and conditions apply for the hire of equipment from and the provision of related services by Neumann&Müller GmbH & Co. KG (hereinafter: N & M) to the exclusion of any other terms and conditions. The application of any terms or conditions of business or hire on the part of the Lessee is hereby expressly excluded.
II. Provision to Third Parties and Use in other Countries
(1) The Lessee may only allow third parties to use the hired equipment (whether for a fee or without charge) or take it out of the country with the Lessor’s express permission.
III. Duration of Hire, Return
(1) Where the Lessee continues to use the hired equipment beyond the expiry of the agreed hire period, the hire agreement shall not be extended, even without N & M’s objection.
(2) Where the hired equipment is not returned on time, N & M may require payment of the agreed hire rate for the amount of time by which the hire period is exceeded as compensation for use. This shall not affect N & M’s right to make any further claims for damages.
IV. Right of Retention / Offset Prohibition
(1) The Lessee shall have no right of retention in the hire equipment after the expiry of the hire period.
(2) The Lessee may only have an offset right in respect of claims against N & M where the claims in question are uncontested or have been given legal effect. This does not apply to claims resulting from a deliberate act / breach of duty by N& M.
V. Termination of the Agreement
(1) The contract may only be terminated by either party where there is a serious reason. A prior threat of termination is not necessary.
(2) A serious reason includes:
a) a culpable breach of the catering agreement or the stage directions by the Lessee; or
b) a culpable breach of the agreed conditions of payment by the Lessee.
(3) Where a right of termination due to a serious reason has been exercised, especially due to a culpable breach of duty as defined by cls V(2)(a) or (b) of these general terms and conditions, the Lessee shall be liable to pay N & M compensation of a sum determined by reference to the fee agreed upon, less any payments already made and any costs or purchases which may have been saved or avoided by N & M.
VI. Duties of the Lessee
(1) The Lessee shall handle the hired equipment with care and take note of any instructions from N & M in relation to the hired equipment.
(2) The Lessee shall be under an obligation to protect the equipment listed in the appendix to this hire agreement / in the quotation against damage and loss, especially against weather damage and theft. This especially applies during installation, rehearsal, performance and dismounting times.
(3) Should any faults in the equipment become evident during the hire period, the Lessee shall report the fault to N & M immediately.
(4) The Lessee shall be responsible for ensuring that the location at which the hire equipment is to be set up is suitable for the equipment. Any additional costs incurred by N & M due to inappropriate set-up locations shall be borne by the Lessee.
(5) In cases of hire of wireless microphone systems in frequency ranges III (VHF), IV and V (UHF), or radio equipment, the Lessee shall ensure that the use of such systems is carried out in line with the current regulatory provisions of the Post and Telecommunications Authority (Regulierungsbehörde für Post und Telekommunikation / RegTP).
VII. Default Interest
Where the Lessee is a consumer (private customer), default interest on outstanding payments shall be charged at a rate of 5% above the base interest rate of the German Civil Code, or 8% above the base interest rate of the German Civil Code otherwise.
VIII. Liability of the Lessee / Penalty Clause
(1) The Lessee shall be liable to N & M pursuant to legal regulations to the extent that these are not varied below.
(2) The Lessee shall be liable to pay the replacement cost of the hire equipment in cases of loss, or in cases of damage in which repairs are not possible or would not be economically feasible. The Lessor must make a reasonable “new for old” adjustment to his claim. In cases of loss, or in cases of damage in which repairs are not possible or would not be economically feasible, the Lessee has the right to prove less severe damage or to prove to N & M that a replacement below the new price would be possible and reasonable.
(3) N & M reserves the right to make a claim with respect to damage going beyond that outlined in cl VIII(2).
(4) Where desired, the Lessee may limit its liability to N & M for damage to the hired equipment through a limitation of liability agreement (Equipment Insurance). Where a limitation of liability agreement is entered into and subject to cl VIII(6), the Lessee shall only be liable to pay N & M compensation for damage to the hired equipment up to the excess agreed upon (cl VIII(5)). The Lessee’s third party liability is not affected. The Lessee is advised to take out an individual third party liability insurance policy.
(5) The excess for equipment insurance claims is:
- 25% of the repair costs/replacement cost, not exceeding EUR 2,500.00 in cases of loss or damage caused by theft, burglary, robbery or plundering; or
- 10% of the repair costs/replacement cost, not exceeding EUR 1,022.00 in all other cases.
(6) The aforementioned limitations of liability shall not apply where the equipment is not returned on time for reasons for which the Lessee or his agent is responsible, or in cases of breach of the provisions of cl II. Furthermore, the limitations of liability shall not apply where the Lessee or his agent contributes to the damage by an act or omission of gross negligence or intent. In addition to this, no limitation of liability shall apply to any damage which goes beyond pure property damage to the hire equipment; in such cases, the liability shall be determined pursuant to cls VIII(1)-(3).
(7) A contractual penalty shall be added to any existing rights to compensation held by the Lessor.
IX. Warranty by N & M
(1) N & M’s warranty with respect to faults is based on the legal regulations.
(2) Where the warranty obligation includes an obligation to pay compensation, the provisions of cl X shall apply, unless the right to compensation is based on a warranty made by N & M with respect to the characteristics of the hired equipment or a guarantee made by N & M.
X. Liability of N & M
(1) The liability for compensation of N & M and its agents shall be determined pursuant to legal regulations to the extent that these are not varied below.
(2) Personal Injury
N & M shall be fully liable for any personal injury caused by negligent or intentional breaches of duty by N & M.
(3) Damage to Property
(a) N & M shall limit its liability for damage to property or economic loss caused by negligent breaches of contractual duties, especially the duty to provide the hire equipment in the state provided for by the contract to the amount of coverage provided by its liability insurance policy (EUR 5,000,000.00 for damage to property and EUR 100,000.00 for economic loss).
(b) N & M shall not limit its liability for damage to property or economic loss caused by intentional or grossly negligent breaches of duties. In business dealings, the liability for a grossly negligent breach of duty by an agent who does not hold a managerial role is limited to the amount of coverage provided by N & M’s liability insurance policy (EUR 5,000,000.00 for damage to property and EUR 100,000.00 for economic loss).
(c) Any other liability is excluded. This also applies to N & M’s liability for compensation for non-performance due to an initial defect in the hire equipment for which N & M is not responsible. This exclusion of liability does not apply where N & M has given a guarantee with respect to a characteristic of the hire equipment or a warranty.
(4) Where N & M has limited or excluded its liability, the exclusion or limitation of liability shall also apply to non-contractual claims (claims in tort).
XI. Amendments / Language / Jurisdiction / Severability Clause
(1) Amendments or additions to this contract may only be made in writing.
(2) The contract language is German. Where the contract has been translated into another language, in full or in part, the German version remains binding.
(3) To the extent that is legally possible, this contract shall be governed by German substantive law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) The place of jurisdiction for all disputes arising from this contract in business dealings or with respect to any public corporations shall be Stuttgart (Germany), notwithstanding N & M’s right to bring an action before courts of other jurisdictions.
(5) Should a contractual provision be or become invalid, it shall not affect the remaining content of this contract. In such cases, the parties shall be under an obligation to replace the invalid provision with a new, valid provision which most closely approximates the economic purpose of the invalid provision, as long as the invalid provision is not a general term or condition. This procedure shall also apply where a gap becomes clear during performance of the contract.