1.1 These specific terms and conditions of hire for DEKOM AG, Kellerbleek 3, 22529 Hamburg (hereinafter referred to as “DEKOM”) shall apply in addition to DEKOM’s general terms and conditions, which shall govern the present contractual relationship unless otherwise stipulated in these terms and conditions of hire.
1.2 On the basis of a written hire agreement, DEKOM shall hire out and handover to the customer (hereinafter referred to as “hirer”) the devices and accessories detailed in the hire agreement (hereinafter referred to as “hired goods”) along with all software delivered with and/or stored on the devices, in accordance with the following terms and conditions of hire. The hire agreement shall generally be established by a written order confirmation.
2.1 The time and place for delivery of the hired goods by DEKOM shall be detailed in the hire agreement.
2.2 DEKOM shall only install the hired goods if this is agreed separately, otherwise the hirer shall be responsible for installing and commissioning the hired goods. The spatial, technical and other requirements for installation and activation of the hired goods shall be provided in the manufacturer’s documentation and operating instructions for each device or in instructions provided by DEKOM. The hirer shall be responsible for ensuring compliance with these. If the installation is carried out by DEKOM, the hirer shall be obligated to meet all of the requirements for installation and activation, follow all instructions provided by DEKOM, and clarify all remaining queries in good time before the scheduled installation date. Should the hirer fail to do so, they shall bear any additional costs incurred as a result, particularly for a second installation attempt.
3.1 Handover of the hired goods shall take place at the installation site specified in the hire agreement. DEKOM shall be notified in writing before any relocation of the devices. DEKOM may carry out this work themselves, or require a specialist named by DEKOM to be called in for the transportation and installation work involved in the relocation. The hirer shall bear all expenses and consequential costs related to the relocation.
3.2 Third parties may not be granted use of the hired goods by the hirer.
3.3 Software installed on the hardware and other intellectual property rights shall be subject to the licensing terms of the respective software manufacturer or proprietary right holder. The hirer is obligated to observe the proprietary rights of third parties.
4.1 The hirer shall pay DEKOM the rental fee indicated in the hire agreement, plus statutory VAT at the current rate. The period for which the rental fee is charged shall begin on the date of delivery to the hirer, according to the delivery note. Incomplete months shall be charged on a pro rata basis.
4.2 The monthly rental fee shall be due and payable no later than the third working day of each month. In the event of a late payment (payment arrears), DEKOM shall be entitled to charge interest at 8% p.a. above the base rate. Further rights, including the right to claim additional damages arising from the delay, are reserved.
4.3 The payment terms stipulated in § 3 and § 20 of DEKOM’s general terms and conditions shall otherwise apply.
5.1 The hirer is obligated to insure the hired goods at their own expense against damage, destruction and loss through theft, burglary, robbery or looting.
5.2 The hirer is obligated to maintain the hired goods as specified in the technical documentation and operating instructions. They may fulfil this obligation by signing a service contract with DEKOM or by making comparable arrangements. If they do not conclude a service contract with DEKOM, this shall entitle DEKOM to make continued hire of the goods conditional upon evidence of an appropriate service contract. In this case, the hirer shall not be entitled to retain the rental fee until the relevant evidence is provided.
5.3 The hirer is obligated to report defects in the hired goods immediately.
5.4 The hirer shall not be authorised to dispose of the hired goods without prior written consent. The hirer shall immediately notify DEKOM in writing of access to the hired goods by third parties and provide all information known to the hirer which is necessary to prevent access. The hirer shall bear the costs of all measures necessary to prevent access, unless the access is attributable to DEKOM.
6.1 DEKOM shall hand over the hired goods in a condition suitable for use as stipulated in the contract, and maintain this condition throughout the term of the hire contract. The services to be performed by the hirer under point 5.2 shall remain unaffected by this.
6.2 Maintenance obligations beyond the services required from the hirer shall be carried out by DEKOM on business days from Monday to Friday between 8am and 6pm. Maintenance shall be carried out via a telephone hotline and through remote facilities and integrated functions; if necessary maintenance cannot be performed using the aforementioned methods, maintenance shall be provided by carrying out repairs or other fault rectification measures at DEKOM’s registered office (bring-in service). Repairs and other troubleshooting measures shall only be carried out at the installation site specified in the hire agreement where this is specifically stipulated in the hire agreement or service agreement.
6.3 The hirer shall bear the costs incurred by DEKOM for rectifying faults or carrying out repairs, based on DEKOM’s current price list, if these faults or repairs are due to the following causes: improper assembly, installation or activation by the hirer, operating errors, failure to comply with technical documentation or other incorrect handling, technical interference by the hirer or a third party, irregularities in the electrical current or data lines or other factors for which DEKOM is not directly responsible. In cases of doubt, DEKOM shall be entitled to commission a suitable expert to identify the cause of the fault and responsibility for the costs. The expert’s costs shall be borne by the party who is determined in the report to be responsible for the costs. The hirer shall not be entitled to retain the rental fee for the time taken to produce the report. In the event that DEKOM is determined by the expert to be fully responsible for the costs, DEKOM shall be obligated to repay the rental fee to the hirer for the aforementioned period.
7.1 DEKOM’s liability shall be unlimited in the event of gross negligence or wilful intent.
7.2 DEKOM shall be liable for damages resulting from an absence of guaranteed features in the amount of the hirer’s financial interest which was covered by the purpose of the assurance and apparent to DEKOM when the features were guaranteed. Under no circumstances shall foreseeable damages relating to features and possible applications of the hired goods exceed the sum of one contractual year’s rental fee; this shall not exceed the rental fee for the term of the contract.
7.3 In the event of a slightly negligent breach of material contractual obligations which are indispensable to achieving the purpose of the contract, and with which the hirer must therefore be able to expect strict compliance, DEKOM shall, in accordance with statutory provisions, be liable only for contract-specific damages foreseeable by DEKOM on conclusion of the contract, up to a limit of €5,000.
7.4 DEKOM shall otherwise accept no liability on any legal grounds.
7.5 The aforementioned liability limits shall not apply if DEKOM is liable under the German Product Liability Act, or for damages arising from death, physical injury or damage to health caused wilfully or through gross negligence.
8.1 The term of the contract shall be provided in the hire agreement.
8.2 Unless otherwise agreed, the hire period shall begin on delivery of the hired goods or the first attempted installation by DEKOM. This shall also apply if individual components of the hired goods which are non-essential for performance by DEKOM have not yet been delivered.
8.3 There shall be no tacit extension of the term should use of the hired goods continue without objection.
8.4 If no term is specified for the contract, either party may ordinarily terminate the hire contract in accordance with statutory provisions. Termination for good cause shall remain unaffected.
8.5 All terminations shall be in writing; terminations for good cause shall be in writing with a statement of reasons.
8.6 Immediately upon termination of the hire contract, the hirer shall pack the hired goods in the packaging supplied on delivery, and return it in good condition. The hired goods shall be returned by shipping them to DEKOM at the hirer’s expense and risk. In the event of late return, DEKOM reserves the right to continue to charge the hirer the rental fee until handover of the goods, and/or to assert a claim for damages.
8.7 The hirer shall be entitled to cancel the hire contract before handover of the hired goods. In the event of cancellation fewer than 15 days before the agreed handover date, the hirer shall provide the following compensation: 40% of the rental fee in the event of cancellation up to and including two days before handover, 60% in the event of cancellation up to and including 24 hours before handover, and 70% in the event of cancellation less than 24 hours before handover. This calculation shall be based on one year’s rental fee, or the rental fee for the term of the contract if shorter.
8.8 If the hire contract should be terminated without notice, DEKOM shall be entitled to flat-rate damages amounting to 70% of the agreed rental fee for the remaining term of the hire contract.
8.9 In the event of cancellation or early termination (points 8.8 and 8.9), the amount due as a result of these damages shall be payable immediately and without deduction on termination of the hire contract.
Hamburg is agreed as the sole place of jurisdiction, provided that the hirer is a merchant as defined by the German Commercial Code and the contract forms a part of their business, or the lessee has no registered office or place of residence in the Federal Republic of Germany when legal action is taken. DEKOM shall be entitled to bring action before any other legally competent court instead of a court in the place of jurisdiction agreed above.
10.1 Changes or additions to these terms and conditions of hire must be made in writing.
10.2 If any clause in these terms and conditions of hire should be or become invalid, the validity of the remaining clauses shall not be affected. In such a case, the contracting parties shall be obligated to cooperate in drawing up provisions which will achieve a legally valid result that comes as close as possible to the intent of the invalid clause.
Updated: March 2009