General Terms and Conditions of in2systems GmbH for rental and hire-purchase agreements
Status: July 2022
a. These General Terms and Conditions govern the business relationship between in2systems GmbH (hereinafter referred to as the "Lessor") and customers who use the rental or hire-purchase object on the basis of a rental or hire-purchase contract. These GTC shall only apply if the Customer is an entrepreneur (§14 BGB), a legal entity under public law or a special fund under public law.
b. These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that the lessor has expressly consented to their application. This consent requirement applies in any case, for example, even if the landlord in knowledge of the general terms and conditions of the customer performs the services to him without reservation.
II. Rights of use
a. Hardware and software of the rental or lease-purchase object are provided as a uniform system. The lessor grants the customer a simple, non-exclusive, revocable, non-transferable and non-sublicensable right to the weframe One software included in the scope of delivery to use this software, its respective upgrades, patches and updates during the term of the rental or lease-purchase contract for the contractually intended and assumed purpose. In all other respects, all rights shall remain with the lessor.
b. The customer is not entitled to use the software or parts thereof directly or indirectly to
- sell, rent, lease, license, distribute, market or otherwise commercially exploit;
- reverse engineer, decompile, disassemble or reproduce the Software, in whole or in part, or create derivative
software therefrom (except to the extent that the Software enables the User through a specific
function to create, generate or send created content); and
- remove, alter, disable, or circumvent any copyright, trademark, or other proprietary information, notices,
or labels present on or in the Software; and
- perform the Software or any reproduction or adaptation in violation of any applicable law or regulation.
III. Handover of the leased or hire-purchase object; force majeure
a. The customer takes over the rental or hire-purchase object at the agreed place of takeover against signing of a receipt. lf a place of handover is not agreed, the customer's place of business shall be deemed to be the place of handover.
b. Unless otherwise agreed, the Lessor shall deliver the rental or hire-purchase counter-sand carriage paid and duty unpaid to the agreed place of installation, provided this is within the European Union. Any customs clearance costs incurred for delivery to an installation site outside the European Union may be charged to the customer. The lessor shall also undertake the installation of the rental or hire-purchase item and shall ensure that it is ready for operation. The delivery of the rental or hire-purchase item as well as the installation and the bringing about and checking of the readiness for operation shall be carried out at the conditions stipulated in the hire-purchase agreement. Further services of the lessor shall be commissioned and remunerated separately.
c. The installation of the rental or hire-purchase item at a location other than that specified in the rental or hirepurchase agreement shall require the prior consent of the Lessor. The Customer shall bear the expenses and consequential costs associated with the relocation, unless otherwise agreed in the individual case.
d. Force majeure or operational disruptions occurring at the Lessor or its suppliers, e.g. due to riots, strikes, war, lockouts, allocations, etc., which temporarily prevent the Lessor, through no fault of its own, from making the rental or hire-purchase item available on the agreed date, the agreed handover/delivery date shall be postponed by the proportionate duration of the disruptions to performance caused by these circumstances. If a corresponding disruption leads to a delay in performance of more than six months, the customer may withdraw from the contract.
IV. Operational readiness of the leased or hire-purchase item; material defects; defects of title
a. The Lessor shall endeavor to provide the Customer with only brand-new Hardware when the Customer first makes it available for use, but reserves the right to provide the Customer with all or individual Hardware in a "refurbished" condition, i.e. in a quality-assured, generally overhauled and repaired condition. It may happen that the hardware still shows slight signs of use. Any traces of use shall be listed individually in the list of defects attached to the respective acknowledgement of receipt. The customer shall have no right to be provided with brand-new hardware.
b. Upon handover/delivery and, if applicable, installation of the rental or hire-purchase item, the lessor and the customer shall jointly ascertain the condition and proper operational readiness. For this purpose, Lessor and Customer shall satisfy themselves that the leased or hire-purchase item is in a condition in accordance with the contract. Any previous damage not included in the list of defects but not affecting the readiness for operation shall be subsequently recorded in the list of defects. Apart from that, any liability of the Lessor due to defects of the rental or hire-purchase object which already existed at the time of the conclusion of the contract shall be excluded.
c. The customer is obligated to treat the rental or hire-purchase item with care, to protect it from damage and to maintain it in a condition suitable for use in accordance with the contract. The customer shall ensure the proper use and operation of the rental or hire-purchase item. The customer shall follow the productrelated maintenance, care and use instructions, in particular the instructions contained in any operating manuals and documentation. Markings, in particular serial numbers, inscriptions, copyright notices, trademark notices or similar may not be removed, changed or made unrecognizable from the rental or hire-purchase item.
d. The Lessor shall remedy any defects in the leased or hire-purchase item arising during the term of the contract. The customer shall immediately notify any defects in writing in a comprehensible form, stating all information required for the detection and analysis of the defect. In particular, the work steps which
led to the occurrence of the defect, the mode of appearance and the effects of the defect shall be stated. Unless otherwise agreed, the customer shall use the appropriate forms and procedures of the lessor for this purpose. The customer shall support the lessor in eliminating the defect within the scope of what is reasonable.
e. The warranty period for hire-purchase items shall be 24 (twenty-four) months and shall commence upon delivery of the hire-purchase item at the beginning of the lease. After purchase and transfer of ownership with regard to the contractual product following the agreed lease term, the warranty shall be excluded to the extent permitted by law.
f. In the event of an only insignificant reduction in the suitability for the contractual use, there shall be no claims due to defects of the rental or hire-purchase item. Likewise, claims for such defects shall be excluded if the deviation from the contractual condition is due to improper use or use under non-agreed conditions of use or a non-agreed system environment. The same applies to such deviations that arise due to special external influences that are not contractually assumed.
g. Defects shall be remedied within the Lessor's business hours at the Lessor's discretion by repairing or replacing the leased or hire-purchase item complained about free of charge.
h. Termination by the customer due to failure to provide use in accordance with the contract is only permissible if the lessor has been given sufficient opportunity to remedy the situation and this remedy has failed. A failure is only to be assumed if it is finally refused by the lessor or is delayed in an unreasonable manner or if for other reasons an unreasonableness for the customer is given
i. Warranty rights of the customer are excluded if and insofar as the customer makes or has made changes to the rental or hire-purchase object without the prior consent of the lessor, unless the customer proves that the changes made do not have any effects on the analysis and elimination of the defect that are unreasonable for the lessor.
j. The Lessor or its agents shall be entitled, in coordination with the Customer, to inspect the leased or hirepurchase item and to check its condition and, at its own discretion, to carry out any maintenance measures, upgrades, updates or other necessary measures on site or on a remote basis.
k. The Lessor shall be liable to the Customer for an infringement of third party rights caused by the leased or hire-purchase item only insofar as the leased or hire-purchase item is used by the Customer in accordance with the contract, in particular in the contractually intended environment of use. The liability of the lessor for the infringement of third party rights is limited to the extent permitted by law to third party rights within the European Union.
l. If a third party asserts against the customer that the rental or hire-purchase object infringes its rights, the customer is obliged to notify the lessor immediately in text form. The Lessor is entitled, but not obligated, to the extent permissible, to defend the asserted claims at its own expense. The customer shall refrain from making any statement to the third party prior to a decision by the lessor in this regard. In particular, the customer shall not make any acknowledgement, settlement or other declaration vis-à-vis the third party without consulting the lessor.
m. If the rights of third parties are infringed by the rental or hire-purchase item, in particular by the software, the lessor shall, at its own discretion and at its own expense, procure the right of use for the customer or design the rental or hire-purchase item so that it does not infringe any rights. The interests of the customer shall be taken into account appropriately.
V. Other obligations of the tenant
The customer is obligated to support the lessor to the extent necessary and to create in its sphere of operation all prerequisites required for the proper execution of the contract, in particular to enable an online connection of the rental or hire-purchase item and remote access to the rental or hire-purchase item, in particular for the purpose of analyzing and remedying defects. In particular, prior to delivery of the rental or hire-purchase item, the customer shall create the spatial and technical conditions required for the installation and readiness for operation of the rental or hire-purchase item. The customer is aware that the weframe One system is a cloud-based solution that requires a permanent connection of the rental or hire-purchase object to the Internet. It is the responsibility of the customer to create the technical requirements for this.
VI. Terms of payment
a. Unless otherwise agreed, the invoice amount is due and payable within thirty days from the date of invoice. Payments by the Customer may be made with effect of performance in a cashless manner exclusively to the account specified by the Lessor. In any case, all payments shall be made free of charge for the Lessor. The lessor reserves the right to request a SEPA direct debit mandate from the customer.
b. If the customer is in default of payment, the lessor is entitled to make the further use of the rental or hire-purchase object dependent on the complete settlement of the outstanding claims or in whole or in part only against advance payment. If the customer is in default with a not only insignificant claim, the lessor is entitled to repossess the leased or hire-purchase object in order to secure his property or to avert damage, even without terminating the contract. However, the lessor is obliged to make the rental or hire-purchase object available to the customer again at the customer's expense after payment has been settled in full.
c. The provision of necessary updates and patches of the software during the term of the contract shall be free of charge, unless otherwise agreed in individual cases. All other operating costs of the rental or hire-purchase object (in particular electricity costs and costs for the Internet connection) shall be borne by the customer.
d. Payments by the customer shall first be credited against the oldest claim that has not been settled or has not been settled in full. Deviating redemption provisions of the customer are ineffective.
e. The customer may only offset claims of the lessor if the customer's counterclaim is undisputed or a legally binding title exists; the customer may only assert a right of retention insofar as it is based on claims from the rental or hire-purchase agreement.
VII. Ownership and impairment of the ownership relationship
a. In relation to the customer, the lessor remains the economic owner of the rental or hire-purchase object; in the case of hire-purchase, this applies until all hire-purchase installments have been paid in full. The customer may not sell, give away, transfer by way of security, rent or lend the rental or hire-purchase object. However, the customer shall be entitled to permit its employees and company staff as well as third parties to use the object for the contractually intended purpose. However, the customer must ensure that those persons who are permitted to use the rental or hire-purchase item have been properly instructed in its use. Insofar as persons to whom the use is permitted cause damage to or with the rental or hire-purchase object, the customer shall be liable in addition to these persons.
b. The customer shall keep the rental or hire-purchase object free from third party rights. If the rights of the lessor to the rental or hire-purchase object are infringed or impaired by measures of third parties, in particular by seizure or other events, the customer shall inform the lessor thereof in text form without delay.
c. In case of imminent danger, the customer shall immediately take all measures suitable to preserve and protect the rights of the lessor. The customer shall bear the costs for measures to ward off access by third parties that were not caused by the lessor.
VIII. Exchange, return of the rental or hire-purchase object
a. The Lessor is entitled, but not obligated, at any time to replace individual or all of the leased or hirepurchase items provided at its own discretion with corresponding items of identical construction with identical or improved equipment.
b. At the time of exchange or return, the rented item must be in a condition appropriate to its age and useful life, free of unreported damage and ready for operation. The rented item must be returned together with accessories and any product-related documentation provided. Usual traces of use, taking into account the period of use, shall not be deemed to be damage.
c. A joint record of the condition of the rented item shall be made at the time of exchange or return, taking into account the previous damage, and signed by both parties or their authorized representatives.
d. If the rental object does not correspond to the condition according to lit. b. upon return, the customer is obligated to compensate for the reduced value resulting from the damage incurred during the rental period. If the contracting parties cannot agree on the reduced value to be compensated by the customer, the reduced value shall be determined by a publicly appointed and sworn expert or an independent expert office at the instigation of the lessor; the contracting parties shall each bear half of the costs incurred for this. The expert damage assessment shall be binding on both parties to the contract as an arbitrator's report; the expert report shall not preclude recourse to the courts.
e. The lessor will inform the customer of the further modalities at least one week before the intended exchange or return. The exchange or return shall take place at the place of handover. The customer shall ensure that at the time of the exchange or return the rental or hire-purchase item together with the accessories and documentation provided are ready for collection. Unless otherwise agreed, the customer shall bear the costs for dismantling, packaging and return transport. If, for reasons for which the customer is responsible, an exchange or return is not possible or is delayed, the customer shall bear the additional costs caused thereby.
IX. Liability of the lessor
a. The lessor is liable to the customer, apart from the breach of essential contractual obligations, only in cases of intent and gross negligence of its legal representatives and agents. Material contractual obligations are obligations which enable the proper performance of the rental or hire-purchase agreement in the first place and on whose compliance the customer regularly relies and may rely. Insofar as the lessor is liable for slight negligence, the liability for property damage and financial loss is limited to the foreseeable damage typical for the contract. Liability for other, remote consequential damages is excluded.
b. The above limitations of liability shall not apply in the event of injury to life, limb or health, in the event of fraudulent concealment of a defect, in the event of the assumption of a guarantee or a procurement risk and in accordance with the Product Liability Act.
c. Insofar as the liability of the lessor is excluded or limited, this also applies to the organs, employees, representatives and vicarious agents of the lessor.
a. Each contracting party may terminate the contract without notice for good cause. Any notice of termination must be in writing (registered mail) to be effective.
b. The lessor may in particular terminate without notice if the customer
- suspends its payments if there is evidence of a significant deterioration in the customer's financial situation from which a threat to the customer's solvency is derived or if the customer ceases its business operations;
- as the debtor, offers an out-of-court settlement, ceases to make payments, files for insolvency proceedings or such proceedings are opened against his assets or the opening is refused for lack of assets;
- has made incorrect statements or concealed facts when concluding the contract and therefore the landlord cannot reasonably be expected to continue the contract;
- fails to refrain from serious breaches of the contract despite a written warning or fails to immediately remedy consequences of such breaches of contract that have already occurred;
- if other circumstances occur at the customer's which, after due examination by the lessor, make the further proper fulfillment of the contract appear to be at risk, in particular if the customer uses the rental or hire-purchase object in breach of the contract and the lessor has not expressly consented to this use.
XI. General provisions
a. These GTC as well as the legal relations of the contracting parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the law on the international sale of goods (CISG).
b. For all present and future claims arising from the contractual relationship, the exclusive place of jurisdiction is the Lessor's place of business. However, the lessor is entitled to sue the customer at his place of business. The place of performance for all obligations arising from this contractual relationship is the Lessor's place of business.
c. The customer has to notify the lessor immediately of his change of domicile as well as changes in his company, his bank details or in the legal form and the liability relations of his company.
d. Claims and other rights of the customer arising from the rental or hire-purchase agreement may only be assigned with the prior written consent of the lessor. The Lessor is entitled to assign its claims arising from the lease or hire-purchase agreement. Furthermore, the Lessor is entitled to sell these claims to third parties.