. Eschelbach Lichttechnik GmbH:
I General provisions
§ 1 Applicability
1. These General Terms and Conditions (hereinafter also referred to as AGB) are basis and part of all contracts finalized between Eschelbach Lichttechnik GmbH dealing with equipment renting or selling and/or involve connected non-cash benefits and services of Eschelbach.
2. These general terms & conditions apply exclusively. Variant customer terms and conditions have no validity.
§ 2 Offer and contract signing
1. Eschelbach Lichttechnik GmbH offers are subject to confirmation. Customer orders have to be placed in written form and are binding for two weeks after order receipt.
2. Eschelbach Lichttechnik GmbH can accept or decline orders.
II. Equipment renting
§ 1 Rental period
The rental period includes the agreed upon day on which the rental equipment is provided in Eschelbach Lichttechnik GmbH warehouse (rental start) and includes the agreed upon day on which the rental equipment has to be returned to Eschelbach Lichttechnik GmbH warehouse (rental end). This applies independently, no matter if the customer, Eschelbach Lichttechnik GmbH or a third party executes transport.
§ 2 Payment
1. If not expressly agreed to otherwise, the rental cost mentioned in the valid Eschelbach Lichttechnik GmbH price list used during contract signing applies.
2. If the payment amount for additional services, such as delivery, mounting, staff support is not regulated contractually, then a just fee is deemed to be agreed upon.
§ 3 Transport
1. If nothing has otherwise been agreed upon, Eschelbach Lichttechnik GmbH does not owe transport of rental equipment. If Eschelbach Lichttechnik provides the transportation of rental equipment through explicit agreement between Eschelbach Lichttechnik and the customer, Eschelbach Lichttechnik can choose to execute transport itself or through a third party. For possible damage claims § 9. titles 1 and 2 will be applied.
2. If Eschelbach Lichttechnik chooses a third party for transport execution, the customer will bring possible damage claims prior against the third party. For this purpose the customer can transfer the third party claim to Eschelbach Lichttechnik and demand due claim in the scope in which Eschelbach Lichttechnik is liable to the customer according to § 7 titles 1 and 2.
§ 4 Customer Cancellation
1. In accordance with the regulations mentioned hereafter, the customer has the right to cancel in writing (cancellation). For its efficacy, the cancellation needs to be submitted in writing.
2. In case of a cancellation, the customer is liable to pay 20 % of the complete payment according to § 2 if the order is cancelled at the latest 30 days prior to commencement of contract, 50 % of the complete payment according to § 2 if the order is cancelled at the latest 10 days prior to commencement of contract and 80 % of the complete payment according to § 2 if the order is cancelled at the latest 3 days prior to commencement of contract, as damages to Eschelbach Lichttechnik. For the date of cancellation, receipt of a written letter of cancellation at Eschelbach Lichttechnik is substantial. Damages will be dropped insofar as the customer can prove that no damage or only small insignificant damage was inflicted upon Eschelbach Lichttechnik.
§ 5 Payment
1. If not otherwise agreed upon, the rent is due without deductions/discounts at the time of the agreed rental start. Payments for other services are also payable at commencement of contract. Eschelbach Lichttechnik is only obligated to handover the rental equipment to the customer if prior complete payment has been made.
2. For the timeliness of payment monies received by Eschelbach Lichttechnik are relevant.
3. If our customer is a contractor according to § 14 BGB, he owes late interest fees of 8 % above the prime lending rate. If our customer is a consumer according to § 13 BGB, overdue payments and all other claims from the contractual relationship will bear a late interest fee of 5 % above the prime lending rate. Raising of further damages caused by the delay is reserved.
4. The customer is entitled to exercise a lien or set-off only with an undisputed or legally binding counter claim. The customer is entitled to unconditionally exercise a lien that is based on this contractual relationship.
§ 6 Surrender of use and defects
1 Eschelbach Lichttechnik rental equipment is technically complicated and therefore extremely sensitive requiring particularly careful treatment and should be controlled by technically trained staff.
2. Eschelbach Lichttechnik will supply the rental equipment through its warehouse on weekdays (Monday through Friday) between 8 am and 5 pm in a, according to contractually stipulated use, suitable condition for the duration of the agreed upon rental period. After receiving the equipment, the customer is obligated to examine the rental equipment for completeness and defects and has to advise Eschelbach Lichttechnik immediately of a possible incompleteness or defect. Should the customer not examine the equipment or inform Eschelbach Lichttechnik of incompleteness or defects, the transfer will be assumed free of defects/approved, except if the defect was not visible during examination. Should such a defect appear later, Eschelbach Lichttechnik must be immediately advised of such a discovery. Otherwise the condition of the handed over rental equipment will be considered as approved/without defect even with the visible defect. The notification has to be made in written form i.S.v. IV. § 1.
3. If the rental equipment is defective during time of transfer or a defect appears later and customer notification of the defect is made in a timely manner, the customer can demand repairs. This is not valid if the customer him/herself has caused the defect and/ or according to § 7 title 1 section 1 to 3, § 14 title 2 is obligated to upkeep - including repairs. Eschelbach Lichttechnik can choose to fulfil repair requests by providing equivalent rental equipment or repairs. The customer can demand repairs only during the in § 8 title 1 mentioned time period. For repairs, Eschelbach Lichttechnik can charge the customer with transport, travel and labor cost if repairs are linked to disproportionate expenditures. This is regularly the case when rental equipment is overseas.
4. The customer has a right to cancellation or reduction in accordance to §§ 543 title 2 No 1, title 3 BGB if Eschelbach Lichttechnik’ s repairs have been without success or Eschelbach Lichttechnik rejected the cost absorption according to § 6 title 2 section 5. If the customer does not inform the company of the defect or informs it in a late manner, the customer cannot reduce payment, cancel payment or claim damages for the defect according to § 543 title 2 No. 1, title 3 BGB. Damages are also excluded if the customer immediately informs Eschelbach Lichttechnik of the defect, but repairs during the under § 6 title 2 mentioned time frame were not possible. In case of neglected or late notification the customer must refund Eschelbach Lichttechnik for caused damages. Any contributory customer negligence of the defect will exclude the right for cancellation.
5. If multiple equipment is rented and only one equipment part is defect, the customer can only cancel the contract if the rental equipment was rented in a group and the defect significantly impairs the contractually stipulated functionality of the rental equipment.
6. If the customer rents technically complex or difficult to control equipment without using the by Eschelbach Lichttechnik recommended and offered technical staff, the customer is only entitled to a repair claim if he/she can proof that the defect was not caused by user error.
7. The renter is obligated to obtain at his/her cost needed public law approvals for the planned used of the rental equipment. If the assembly is done by Eschelbach Lichttechnik, the company can request that the renter show the public law approval to Eschelbach Lichttechnik. Eschelbach Lichttechnik cannot be held liable for the needed approvals and the intended use of the rental equipment by the customer.
§ 7 Damages
1. The customer is entitled to contractual and legal damage claims only if these have been caused through wilful breach of duty or blunt negligence on Eschelbach Lichttechnik 's part, its legal representatives or executive staff. No-fault damages are excluded according to § 536 title 1 BGB. Eschelbach Lichttechnik will be liable for typical, predictable damages even if they were caused through wilful negligence or acting of a simple vicarious agent or through negligent violations of main contract obligations by Eschelbach Lichttechnik, its legal representatives or executive staff. These limitations of liability prevail also for the benefit of legal guardians and Eschelbach Lichttechnik executive staff.
2. Liability for damages from injuries to life, body or health will remain unaffected due to the limitations of liability.
3. The before mentioned regulations do not apply for equipment sales (III).
§ 8 Exclusion of liability in favour of Eschelbach Lichttechnik
The customer and his/her contractual partners (artists, athletes, audience etc.) have to agree to a corresponding limitation of liability including unlawful claims in favor of Eschelbach Lichttechnik according to § 7. If Eschelbach Lichttechnik is held responsible for damages due to non-implementation of previously mentioned obligations, the customer has to keep Eschelbach Lichttechnik free of damage claims.
§ 9 Customer obligations during rental period
1. The customer has to treat rental equipment with care. If the customer has not booked Eschelbach Lichttechnik service staff, he/she must skillfully execute all necessary maintenance and repairs during the rental period and pay for it. The customer has to repair defects of lighting materials and loudspeaker membranes that occur during equipment use. Furthermore, the customer has to repair or pay for repairs of all caused defects.
2. The rental equipment can only be installed, controlled and demounted by experts according to technical provisions. If equipment is rented from Eschelbach Lichttechnik without support staff, the customer has to see to a continuous compliance with all applicable security guidelines, in particular accident prevention regulations and guidelines of the Association of German Electrics (VDE).
3. The customer has to guarantee undisturbed power supply during rental equipment use. The customer is responsible for damages resulting from power outages or interruptions or fluctuations.
§ 10 Insurance
1. The customer is obligated to duly and adequately insure the general risk of the according rental equipment (loss, theft, damage, liability).
2. The customer has to reimburse Eschelbach Lichttechnik for insurance cost, if Eschelbach Lichttechnik and the customer agree that Eschelbach Lichttechnik will take out insurance. If Eschelbach Lichttechnik does not take out insurance, the customer has to show Eschelbach Lichttechnik proof of insurance upon request.
§ 11 Third-party rights
The customer has to keep the rental equipment free of all burden, utilization, seizure and other legal third party claims. The customer is obligated to immediately inform Eschelbach Lichttechnik of such third party measures and will transfer all necessary documents. The customer will bear the cost for the defense of such infringement, unless the infringements are associated with Eschelbach Lichttechnik 's sphere.
§ 12 Cancellation of rental agreements
1. A rental agreement can be terminated by both parties only for important reasons. This applies also for agreed upon additional services.
2. For the benefit of Eschelbach Lichttechnik an important reason is particularly presented if
a) the customer's economic condition has decreased significantly, e.g. if customer seizures or other foreclosures take place or if insolvency proceedings of customer assets or composition proceedings are proposed.
b) the customer uses the rental equipment contrary to contract.
c) The customer falls behind with rent payment for two consecutive times or with a total amount of two rent payments measured by period and payable rent.
§ 13 Return of rental equipment
1. The rental equipment has to be returned to Eschelbach Lichttechnik ' s warehouse in a complete, organized and clean condition and defect free during the in § 6 title 2 mentioned period, at the latest on the last day of the agreed rental period. The obligation of return extends to defective rental equipment, in particular lighting equipment and other small parts accessories.
2. The return is completed only after unloading and registration of all rental equipment in Eschelbach Lichttechnik 's warehouse. After registration the customer will receive a receipt. Eschelbach Lichttechnik reserves the right to detailed examination of the rental equipment even after registration. An acceptance without complaint does not pass as an approval for the completeness or condition of the returned rental equipment.
3. If the agreed upon rental period is exceeded, the customer has to inform Eschelbach Lichttechnik immediately in writing. Continued usage does not lead to a tenancy extension. For every day that exceeds the agreed rental period, the customer has to pay an usage compensation amounting to the per day agreed payment. This payment is determined by dividing the originally agreed upon total price with the number of days of the originally agreed up rental period. Raising of further claims will be reserved.
4. In case of loss or culpable damage of lighting equipment or other small part accessories, the customer has to refund Eschelbach Lichttechnik with the replacement value, unless the customer can prove that there was no or only minor damage.
§ 14 Long-term rented equipment
1. If the agreed rental period amounts to more than two months or the customer was in possession of the rental equipment for more than two months due to late return, the provisions of this paragraph will be applied in addition.
2. The customer is responsible for maintenance -and if necessary - also the repair of rental equipment.
3. The customer is obligated to independently conduct all statutory technical tests and repairs of the rental equipment and pay for them. If requested by the customer, Eschelbach Lichttechnik will provide information of upcoming tests and maintenance.
4. If the customer returns the rental equipment without conducting the in titles 2 and 3 owed maintenance, repairs and tests, Eschelbach Lichttechnik can without further notice and without a fixed deadline carry out the necessary work or through a third party on customer expense.
III. Equipment sale
§ 1 Prices
1. If the costumer is a consumer according to § 13 BGB, the sales prices will include the legal sales tax. If the customer is a contractor according to § 14 BGB, the sales price does not include the legal sales tax.
2. For consignment sales it shall be understood that the sales price does not include freight, packaging and insurance cost.
§ 2 Delivery
1. If not otherwise agreed upon, Eschelbach Lichttechnik will determine means and ways of transportation but cannot guarantee the fastest and cheapest possible route.
2. Eschelbach Lichttechnik can fulfil orders in partial deliveries which are to be paid separately each time. If payment of a partial delivery is delayed, Eschelbach Lichttechnik can suspend further order fulfillment.
3. Eschelbach Lichttechnik has to explicitly confirm delivery dates and terms in writing. Delivery periods and dates are only approximate. Delivery dates are met when the goods leave the Eschelbach Lichttechnik warehouse or are marked ready for consignment.
4. Delivery terms will extend accordingly in case of force majeure, strike, non-availability of raw materials or production breakdowns. In this case, or if circumstances occur at Eschelbach Lichttechnik suppliers leading to a services delay, or the merchandise cannot be provided by Eschelbach Lichttechnik, Eschelbach Lichttechnik has the right to cancel the contract. On customer demand, Eschelbach Lichttechnik must declare if the company will make use of the right of recission or will deliver within to be determined suitable terms. The customer is entitled to cancel the contract after setting a suitable grace period of at least four weeks and the period expires without result.
5. The customer can only claim damages for delivery date violation, if the client has set a grace period of at least four weeks and the delivery date violation is based on willful negligence or acting of Eschelbach Lichttechnik, its legal representatives or executive staff. Eschelbach Lichttechnik will be liable for typical, predictable damages even if they were caused through willful negligence or acting of a simple vicarious agent or through negligent violations of main contract obligations by Eschelbach Lichttechnik, its legal representative or executive staff.
§ 3 Passing of risk
1. If the customer is a contractor according to § 14 BGB the risk of accidental loss of goods and accidental merchandise deterioration during delivery, and the risk of consignment sales with merchandise delivery to the carrier or persons or companies assigned to consignment execution, transfers to the customer.
2. If the customer is a consumer according to § 13 BGB the risk of accidental loss of goods and accidental deterioration of the goods sold in consignment sales is also only transferred during equipment handover to the customer.
3. Concerning the delivery, it does not matter if the customer is in delay of acceptance.
§ 4 Terms of payment
1. If not agreed otherwise in writing, Eschelbach Lichttechnik invoices are to be paid free of expense and without any deductions within 10 days after receipt of goods. On expiry of this period, the customer is deemed in default of payment.
2. Incidentally the regulations under figure II § 5 titles 2 to 4 apply.
§ 5 Reservation of title
1. For contracts with consumers according to § 13 BGB, goods remain Eschelbach Lichttechnik 's property up to the complete payment of the sales price. For contracts with contractors according to § 14 BGB, goods remain Eschelbach Lichttechnik 's property up to the complete satisfaction of all claims arising from transactions with the customer.
2. The customer must treat the goods with care. If maintenance and repair work are necessary, the customer will regularly execute it and pay for it.
3. The customer is obligated to inform Eschelbach Lichttechnik immediately of third part access to goods, damage to goods or destruction or in case of seizure. The customer has to inform Eschelbach Lichttechnik immediately in writing of a change in merchandise ownership and customer address.
4. In the event of non-contractual customer conduct, in particular default of payment or non-performance of an obligation as per titles 2 and 3 Eschelbach Lichttechnik can withdraw from the contract and demand the surrender of the reserved goods.
5. If the customer is a contractor he is entitled to resale goods during regular business activities. Claims acquired by the customer as a result of the resale of reserved goods are hereby assigned to Eschelbach Lichttechnik in advance in the full amount. Eschelbach Lichttechnik accepts the assignment. After assignment the contractor is entitled to claims integration. Eschelbach Lichttechnik may report the assignment and reserve the right to collect payment if the contractor is in default of payment.
6. The processing or transformation of goods is performed by the customer on Eschelbach Lichttechnik 's behalf. If further processing occurs with third-party goods, Eschelbach Lichttechnik shall be entitled to co-ownership of the resulting new goods in a ratio of Eschelbach Lichttechnik 's reserved goods to new goods. The same valid, if the goods are mixed with other non Eschelbach Lichttechnik goods.
§ 6 Warranty
1. If the customer is a consumer according to § 13 BGB, the same statutory requirement applies, provided the term of limitation for defects is one year, two years for newly produced goods. Damages for defects of used goods fall under the statute of limitations after one year.
2. Sales of used goods to a contractor according to § 14 BGB happen under exclusion of any Eschelbach Lichttechnik defect liability. § 444 (Non-liability) remains unaffected.
3. If the customer is a contractor according to § 14 BGB, Eschelbach Lichttechnik guarantees the following for defective new goods:
3.1 The guarantee initially only includes repairs or replacements selected by Eschelbach Lichttechnik.
3.2 If fulfillment fails, the customer has the right to choose between payment reduction (reduction) or contract cancellation (cancellation). For minor contract violations, in particular minor defects, the customer cannot cancel the contract.
3.3 The contractor has to indicate the defect in writing within seven days after receipt of goods. Otherwise, enforcement of exclusion of liability is ruled out unless the defect was invisible. If such a defect appears later, it also has to be indicated in writing within seven days. To meet the deadline, timely mailing is enough. The contractor must fully prove all qualifying conditions, in particular the defect itself, for the period of defect detection and claim timeliness.
3.4 The warranty term is minimum one year after goods delivery.
3.5 For contractors according to14 BGB the goods composition deems to be the manufacturer's product description, as agreed upon. Public comments, recommendation or manufacturer advertising do not present a contractual indication of goods composition.
§ 7 Damages
1. The customer is entitled to contractual and legal damage claims only if these have been caused through willful breach of duty and blunt negligence on Eschelbach Lichttechnik‘s part, its legal representatives or executive staff. Eschelbach Lichttechnik will be liable for typical, predictable damages even if they were caused through willful negligence or acting of a simple vicarious agent or through negligent violations of main contract obligations by Eschelbach Lichttechnik, its legal representatives or executive staff.
2. The previously mentioned limitations of liability do not affect customer claims from product liability. The limitations of liability do not apply for damages attributed to Eschelbach Lichttechnik from injuries to life, body or health.
IV. Forms/Final provisions
§ 1 Written form
If written form is agreed on or provided in these General Terms & conditions (AGB), it will be preserved through fax transmission and as electronic document with a qualified electronic signature.
§ 2 Final provisions
1. There were no additional oral agreements.
2. If a term of contract, including general terms & conditions, should be ineffective or included ineffectively in the contract, the efficiency of other provisions or the contract will remain unaffected. The parties commit to agree to an alternative substitute regulation that will closest meet the parties' economic desires.
3. German law is obligatory for these general terms and conditions and all business relations between Eschelbach Lichttechnik and the customer. The contract and negotiation language is German.
4. Place of execution is the principal office of Eschelbach Lichttechnik. If the customer is a merchant, a private person residing permanently abroad or a corporate body under public law, the principal office of Eschelbach Lichttechnik is the exclusive place of jurisdiction.