General Leasing Terms and Conditions
Version date: March 2019
To the extent the lessee is an entrepreneur for the purpose of para. 14 of the German Civil Code (BGB) and the contract is part of the business of the lessee’s company, leasing of our mobile heating, cooling and vapor systems will be subject to the following Terms and Conditions. Further, these Terms and Conditions will apply to the extent the lessee is a corporate body under public law or of the public separate estate:
1. The following Terms and Conditions will exclusively apply to the leasing of our systems and the provision of the associated service and of any associated consultancy services. They will also apply to any future business relations, even if not being expressly agreed upon again.
2. Conflicting terms and conditions will not apply, unless we have expressly agreed to them in writing. Our General Terms and Conditions will apply even if we, with knowledge of any conflicting or deviating terms and conditions of the client, provide the services to the client without reservation or if we do not expressly object to the terms and conditions of the client again after receipt. Any deviating and verbal agreements will only be effective if we have accepted them in writing or by telefax or email.
3. In accordance with the provisions of the German Federal Data Protection Act (Bundesdatenschutzgesetz), we herewith inform our contractual partners that we will process your personal data that is required for the management of the business relations with the aid of electronic data processing and will disclose such data only within the company.
II. Offer and Conclusion of Contract
1. We reserve the right to make design modifications or shape changes, to use equivalent or better components and / or materials as well to change the delivery contents even during the period of time between the conclusion of the contract and the delivery of the system provided the intended use will not be negatively affected thereby.
2. We reserve the title, the copyrights and any other rights in and to the documentation that is part of any offer (e.g. illustrations, drawings, labeling). They must not be disclosed to any third parties, unless it has expressly been stated that they are to be circulated.
3. All our offers are subject to change. Any transactions and other agreements must be confirmed by us in writing in order to be binding.
III. Period of Lease and Intended Purpose
1. Any lease contract regarding our system/s will be of a definite duration. If nothing to the contrary has been agreed, the minimum term of lease is 5 working days. In addition, the agreed lease price shall only apply if minimum 90% of the agreed leasing term of an order has been completed. If this is not the case, Hotmobil Deutschland GmbH reserves the right to adapt the leasing price based on the currently valid price list.
2. The lease contract can only be terminated by giving at least three working days’ notice before the lease term ends. The notice of termination must be made in writing and shall be confirmed in writing by Hotmobil. Timeliness of the termination is determined by the date at which HOTMOBIL receives the termination notice sent by the authorized lessee.
3. The period of lease will start at the date of delivery and will end at the date of collection, with the date of delivery and the date of collection being part of the period of lease.
4. If, during commissioning of the system/s or during operation, any defect occurs we are responsible for and which requires decommissioning, the period of lease will be suspended from the occurrence of the defect until its remedy provided that the lessee has informed us about such defect without undue delay.
5. The lessee must not use the system/s or any part thereof for any other buildings than those agreed by contract and must not take the system/s or any part thereof to any other places than those agreed by contract. Without our prior written approval, the lessee will not be allowed to permit the use of the system/s to any third party or to sub-lease the system/s to any third party. The withholding of such approval by us will not lead to the lessee becoming entitled to terminate the lease contract for cause.
6. The system has to be operated by technically qualified staff usually of an approved specialized company and according to the generally recognized codes of practice. We have to be informed, without undue delay, about any maintenance work that has been carried out.
7. No modifications of any kind must be made to any hydraulic, electrical or otherwise mounted equipment. Any costs incurred due to restoration will be charged separately by Hotmobil.
8. Any intervention into the leased item requires the lessor’s prior written confirmation. This provision does not apply to any operating elements which are, according to the operating instructions, required for operating the leased item. This provision also applies to any ancillary components of the leased item such as hose connections.
The prices will be separately stipulated in the lease contract and will be based on the requested period of lease and on the price list as amended from time to time. Any shortening of the period of lease of 10% or more relating to the agreed term of the lease contract will lead to the lessor becoming entitled to an adjustment of the lease costs based on the currently valid price list. A lease extension by the lessee shall be excluded from this stipulation.
Billing will be done based on the actually accumulated lease days. The weekly rate equals to 7 calendar days and the monthly rate to 28, 30 and 31 calendar days.
All our prices are subject to VAT and are denominated in euros. If the lessee has requested to effect a machine collision damage insurance and a third-party insurance, such insurance will be shown separately. Any costs in this respect shall be borne by the lessee.
V. Terms of Payment
1. The terms of payment will arise from the lease contract. If no terms of payment are explicitly mentioned, the standard cost rates of 14 days net after receipt of the invoice shall apply.
2. In case of any default in payment, lessor shall be entitled to charge interest on arrears of 8% above the respective base interest rate (para. 288 of the German Civil Code (BGB)). To the extent there is a legal basis, HOTMOBIL will be entitled to charge higher interests. We reserve the right to claim further damages for default in payment.
3. For each payment reminder dunning costs in the amount of EUR 20.00 will be charged as a lump sum.
4. If the lessee is in default and does, despite prior warning, not pay the arrears within a reasonable period of time, HOTMOBIL will be entitled to terminate the lease contract without notice.
5. Regardless of any terms of redemption communicated by the client, incoming partial payments without terms of redemption will at first be credited against any costs, interest receivable and then against the older arrears. HOTMOBIL will provide the client with corresponding statements in this regard.
6. Payment will only be considered as having been made if we can freely dispose of the respective amount.
7. If we become aware of any circumstances that could affect the lessee’s credit standing or in case a check cannot be cashed, we will be entitled to invoice the whole balance due until the anticipated end of the period of lease and to demand advance payments or securities.
8. The lessee may only offset, withhold or reduce certain amounts if the respective counterclaims have become res judicata or are undisputed.
VI. Time for Delivery and for Performance
1. Any delays in the delivery and collection as well in the installation and commissioning of the system/s which are the result of the condition and nature of the operating site (plot of land or buildings and building installations) will be for the lessee’ account.
Additional expenses due to delays in the delivery and collection of the system/s caused by circumstances which were not foreseeable and which we were not responsible for (e.g. traffic jam, operating troubles) will not be borne.
2. In case we are unable to fulfill our obligations in due time due to any force majeure event or any other unforeseeable, extraordinary circumstances or events beyond our control, e.g. operating troubles, strikes, traffic jams and official interventions, or due to any other unforeseeable, unavoidable events HOTMOBIL is not responsible for, the specified time for delivery and for performance will be extended for the time period of such delay. In case of inability of performance because of any of the aforementioned circumstances or events, we will be released from our performance obligation.
VII. Rights of the Lessee in Case of Defects
1. We have to be informed, in writing or by telex, about any defects without undue delay, however, no later than within a preclusive period of two days following receipt of the goods or occurrence of the defect.
2. No warranty will be given as regards any failure of the system/s and the resulting damage suffered by the lessee which has been caused by inadequate or improper use, installation or commissioning or decommissioning by the lessee or any third party, by natural wear and tear, incorrect or careless handling, inappropriate production facilities, incorrect burner settings, inappropriate fuels and chemical or electrochemical and electrical influences, to the extent they are not attributable to our fault, by failure to observe the installation, operating and maintenance instructions and inappropriate changes or corrective maintenance work by the contractual partner or any third parties and by effects of any parts of different origin (e.g. external boiler control units). Warranty as regards the water heaters will only be given if the water to be heated is of drinking water quality. The fill-up water and make-up water has to meet the requirements of the VDI Guideline 2035. If untreated or differently treated heating water is filled into the heating system, the operator / lessee will be liable for any consequential damage (e.g. damage to the boiler caused by overheating due to scaling).
We expressly point out that there are no warranty obligations if wearing parts, such as burner nozzles, low-emission burner guns, fuses, gaskets, combustion chamber lining or flame-swept parts of the ignition or control devices, are worn out through normal, usage-related wear and tear.
Further, we will not be liable for any failures of the system/s which have been caused by air pollution, such as heavy dust accumulation or aggressive vapors, by
oxygen corrosion (e.g. through the use of non-diffusion-resistant plastic pipes in floor heating systems), by setting up the system in inappropriate rooms or by its continued use after detection of defects.
3. The lessee has to ensure that the system/s are kept locked and are secured against any unauthorized access at any time. We will assume no liability for any consequential damage caused in connection with unauthorized access or directly by any acts of unauthorized persons.
1. Except in the case of willful or gross negligence and unless otherwise provided for by the following terms and conditions, no damages can be claimed regardless of the type of the breach of duty, including tort. This applies, in particular, to damages resulting from the operator’s duties. Unless otherwise agreed, Hotmobil Deutschland is not the operator of the equipment and, therefore, cannot be made responsible for the duties resulting from the operation of the equipment.
2. In case of breach of fundamental contractual obligations, we will assume liability for each case of negligence, but only up to the amount of the foreseeable typical damage. The lessee can make no claims to lost profits, saved expenditures, from third-party claims for damages and to any other consequential or indirect damage, unless a quality feature of the system which has been guaranteed by us aims exactly to protect the lessee against such damage.
3. Those limitations of liability and exclusions mentioned under no. 1 and 2 will neither apply to any claims that are based on fraudulent behavior on our part nor in case of liability for guaranteed quality features, for claims in accordance with the German Product Liability Act (Produkthaftungsgesetz) and for any damage due to injury to life, body or health.
4. The aforementioned exclusions of liability will also apply to our employees, workers, representatives and agents.
IX. Insurance of the Lessor, Right to Inspection and Right to Examination
1. The lessee shall treat the system/s with care and in a workmanlike manner, observe all instructions and technical rules applicable to its operation and check it at regular intervals. In particular, the lessee has to return the system/s in the same condition as it was received.
2. All our system/s are insured against operational risk.
3. Any further risks, including, but not limited to, the water protection risk, will be borne by the lessee.
4. The lessee will be liable for any damage (such as damage due to an accident, loss, theft or inappropriate operation of the system/s) for the repair costs, for the replacement value of the system/s less the residual value in case of an actual total loss. In addition to that, the lessee will also be liable for any consequential damage, including, but not limited to, impairment of value, towing charges, expert’s fees and an administration fee.
5. In case of any damage to the system/s during the period of lease, the lessee will be obliged to inform the lessor in detail and in writing about the event that has caused such damage without undue delay.
6. The lessee shall take any steps which are useful or advantageous to shed light upon the damaging event. In particular, this means that the lessee will have to answer truthfully and completely any questions regarding the circumstances of the damaging event.
7. Upon the lessee’s request, and thus at the lessee’s expense, we will effect a machine collision damage insurance and a third-party insurance.
8. We reserve the right to inspect and examine the system/s at any time or to have the system/s inspected and examined at any time and at our own expense.
9. After expiration of the period of lease or, in case of default in payment of more than five days, we will be entitled to recover possession of the system/s or to request and enforce the assignment of the lessee’s rights to recover possession against any third parties.
X. Applicable Law / Contractual Language
The laws of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods will apply. The contractual language is German.
Any disputes arising directly or indirectly from the contractual relationship shall be exclusively settled by the competent courts at HOTMOBIL’s principal place of business. Further, HOTMOBIL will be entitled to take action before the competent courts at the lessee’s place of business.
1. If a provision of this contract is or becomes inoperative or if the contract contains a so-called lacuna, this will not affect the validity of the remaining content of the contract.
2. Any inoperative provisions or so-called lacunas shall, to the extent this is compatible with the purpose of the contract, be replaced by other provisions which lead to the same result in legal terms and to a similar result which, in good faith, can be deemed acceptable to the contractual parties.
3. Further oral collateral agreements do not exist. Any modifications or amendments to this contract must be made in writing and must be approved by the other contractual party in order to be effective. The same applies to the waiver of the requirement of written form.
Translation for information purposes only. Our German General Terms and Conditions shall apply.
General Terms and Conditions Purchase Contract
Version date: October 2020
These General Terms and Conditions – Purchase – (hereinafter: Purchase Terms) shall apply to all contracts concluded for deliveries and performances between HOTMOBIL Deutschland GmbH (hereinafter: HOTMOBIL) and the purchaser (hereinafter: Purchaser or Client) as entrepreneur in the sense of article 14 of the German Civil Code (BGB) (contract is part of the business of the purchaser’s company). Further, these Terms and Conditions will apply to the extent the purchaser is a corporate body under public law or of the public separate estate:
1. All agreements made between HOTMOBIL and the purchaser in the context of the purchase contract are, in particular, subject to these Purchase Terms. Figure II applies. The version of the Purchase Terms valid at the moment when the contract is concluded shall be decisive.
2. The following Terms and Conditions will exclusively apply to any deliveries and performances under a purchase contract, including service and consultancy services unless otherwise agreed upon by the Purchaser and HOTMOBIL.
3. Conflicting terms and conditions will not apply, unless Seller has expressly agreed to them in writing. Our General Terms and Conditions will apply even if Seller, with knowledge of any conflicting or deviating terms and conditions of the client, provides the services to the client without reservation or if Seller does not expressly object to the terms and conditions of the client again after receipt. Any deviating and verbal agreements will only be effective if Seller has accepted them in writing or by fax or e-mail.
4. The management of a customer account requires personal data. The required data are marked with an “*” at registration. By registering, the Purchaser agrees to the data being used for account management. HOTMOBIL processes these data after the Purchaser’s consent to process requests
and to execute the contract in line with the applicable data protection regulations.
II. Offer and Conclusion of Contract
1. HOTMOBIL reserves the title, the copyrights and any other rights in and to the documentation that is part of any offer (e.g. illustrations, drawings, labeling). They must not be disclosed to any third parties, unless it has expressly been stated that they are to be circulated or after the previous written consent by HOTMOBIL.
2. All HOTMOBIL offers are subject to change. Any transactions and other agreements shall only become binding after written agreement between the Purchaser and HOTMOBIL based on these Purchase Terms.
3. Presentation and advertising of articles by HOTMOBIL shall not be construed as binding offer to conclude a purchase contract.
4. A contract shall only be effective after HOTMOBIL and the Purchase both have signed the written purchase contract subject to these Purchase Terms.
5. Should delivery of the goods ordered by the Purchase not be possible, for example, because the requested goods are not on stock, HOTMOBIL refrains from signing a contract. In this case, no contract shall be concluded. HOTMOBIL shall inform the Purchaser immediately hereof and promptly refund any payments received.
6. Any information and illustrations by HOTMOBIL attached or included shall only be binding to the extent as expressly marked as binding. Minor optical deviations shall not constitute a defect of the purchase item as such.
All HOTMOBIL prices are subject to VAT and are denominated in euros. Furthermore, they are made up as follows:
a. Sales price ex works;
b. Surcharge for supplies (if applicable)
c. Basic amount for commissioning, instruction and handover (if applicable)
d. Cost lump sum for transport plus packaging (if applicable)
e. Tariffs and freight charges
IV. Terms of delivery and payment
1. HOTMOBIL is entitled to partial delivery if this is acceptable for the Purchaser.
2. The delivery term depends on the manufacturing capacity; the customer is informed of the binding delivery term when the contract is concluded, unless otherwise agreed.
3. The contractual payment terms shall be agreed separately in the written purchase contract concluded between HOTMOBIL and the customer.
V. Prices and transport costs
1. All prices are net prices plus the applicable legal value added tax; they include any transport costs.
2. In case of partial delivery, however, the following applies: If HOTMOBIL fulfills the Purchaser’s order by means of partial deliveries acc. to clause IV. no. 1, the Purchaser shall only pay transport costs for the first partial delivery. If partial deliveries are made at the Purchaser’s request, HOTMOBIL shall charge transport costs for each partial delivery.
VI. Terms of Payment, Settlement, Offset
1. The purchase price and the transport costs are due at the moment the order is placed acc. to clause II, unless otherwise agreed. The purchaser may pay the purchase price and the transport costs, at his choice, by means of immediate transfer to HOTMOBIL’s account, by Paypal or credit card.
2. After a successful credit check, payment on account is possible. The payment term shall be fixed individually by HOTMOBIL. HOTMOBIL reserves the right to supply against prepayment only. Deduction of cash discount requires an explicit agreement. HOTMOBIL can only accept discount deduction provided HOTMOBIL receives the payment on the agreed date and/or date mentioned in the invoice.
3. The purchaser is not entitled to offset certain amounts against HOTMOBIL’s claims unless these counterclaims have become res judicata or are undisputed. The purchaser shall also be entitled to offset against HOTMOBIL’s claims, if the purchaser asserts claims for defects or if the counterclaim results from the same purchase contract.
4. The purchaser may only exercise his right of retention if the counterclaim results from the same purchase contract.
5. In case of default in payment, for each payment reminder dunning costs in the amount of EUR 40.00 will be charged as a lump sum.
6. Regardless of any terms of redemption communicated by the client, incoming partial payments will at first be credited against any costs, interest receivable and then against the older arrears. HOTMOBIL will provide the client with corresponding statements in this regard.
V. Time for Delivery and for Performance
1. The delivery date shall be agreed bindingly by HOTMOBIL and the Purchase in the purchase contract based on these Purchase Terms.
2. HOTMOBIL will not be obliged to commission the object sold, unless such a commissioning has expressly been agreed.
3. In case HOTMOBIL is unable to fulfill their obligations in due time due to any force majeure event or any other unforeseeable, extraordinary circumstances or events beyond HOTMOBIL’s control, e.g. operating troubles, delivery delays on the part of in-suppliers, strikes, traffic jams and official interventions, or due to any other unforeseeable, unavoidable events HOTMOBIL is not responsible for, the specified time for delivery and for performance will be extended for the time period of such delay. In case of inability to effect delivery because of any of the aforementioned circumstances or events, HOTMOBIL will be released from their delivery obligation.
4. Unless expressly otherwise agreed, the place of performance will be the Purchaser’s place of business. If the purchaser requests shipment of the object sold, passage of risk will take place upon handover of the object sold to the forwarding agent, the haulage contractor or any other person in charge for effecting shipment. If no explicit agreement has been made regarding the means of transport, HOTMOBIL will make a choice in this regard for the purchaser with due diligence.
VIII. Duty of Examination and Notification, Warranty / Defect rights
1. HOTMOBIL has to be informed, in writing or by telex, about any defects without undue delay, however, no later than within a preclusive period of three days following receipt of the goods or occurrence of the defect.
2. HOTMOBIL does not accept any warranty claims due to failure to observe the operating instructions and inappropriate changes by the Purchaser.
3. HOTMOBIL expressly points out that the Purchaser’s defect rights do not cover wearing parts, such as gaskets, heating elements) if they are worn out through normal, usage-related wear and tear.
1. HOTMOBIL shall be liable towards the Purchaser in all cases of contractual or non-contractual liability in the event of intent and gross negligence in accordance with the statutory provisions for damages or compensation for futile expenses.
2. In all other cases – unless otherwise regulated under no. 3 – HOTMOBIL will only assume liability for violation of contractual duties the fulfillment of which makes proper execution of the contract possible in the first place and on the observance of which the buyer may regularly rely (so-called cardinal obligation), , but only up to the amount of the foreseeable typical damage. In all other cases, liability by HOTMOBIL shall be excluded subject to the regulation under no. 3.
3. HOTMOBIL’s liability for damages due to injury to life, body or health and under the German Product Liability Act will remain unaffected by the above limitations and exclusions of liability.
4. Those limitations of liability and exclusions mentioned under no. 1 to 3 will not apply to any claims that are based on fraudulent behavior on the part of HOTMOBIL.
5. The aforementioned exclusions of liability will also apply to HOTMOBIL employees, workers, representatives and agents.
X. Retention of title, resale and assignment
1. HOTMOBIL reserves title to the object sold and any accessories until full payment of the purchase price has been effected.
2. The purchaser is entitled to resell the object sold and any accessories in the ordinary course of business. Now already, the purchaser assigns to HOTMOBIL any receivables in the amount of the net invoice amount charged to their customer which the purchaser is entitled to against their customer as a result of the resale of the object sold.
Until further notice, the purchaser will remain entitled to collect the receivables. This will not affect HOTMOBIL’s right to collect the receivables. HOTMOBIL undertakes to not collect the receivables as long as the purchaser meets their payment obligations from consideration collected, is not in default and does not request for the opening of insolvency proceedings regarding the assets of the purchaser. If any of those situations occur, the purchaser will be obliged to notify HOTMOBIL of the assigned receivables and their debtors and to provide HOTMOBIL will all required documents. The purchaser has to inform their customer about such an assignment without undue delay.
3. During the reserved property period the purchaser will be obliged to treat the object sold with due care and to carry out any maintenance work at their own expense. If the purchaser does not fulfill their contractual obligations, including, but not limited to, timely payment of the purchase price, HOTMOBIL will, after having set an appropriate deadline, rescind the purchase contract and request from the buyer or a third party surrender of the goods subject to retention of title.
XI. Applicable Law / Contractual Language
The laws of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods will apply.
The contractual language is German.
1. If a provision of this contract is or becomes inoperative or if the contract contains a so-called lacuna, this will not affect the validity of the remaining content of the contract.
2. Inoperative provisions or so-called lacunas shall, to the extent this is compatible with the purpose of the contract, be replaced by other provisions which lead to the same result in legal terms and to a similar result which, in good faith, can be deemed acceptable to the contractual.
3. There are no other oral agreements. Any modifications or
amendments to this contract must be made in writing and must be approved by the other contractual party in order to be effective. The same applies to the waiver of the requirement of written form.
4. Any disputes arising directly or indirectly from the contractual relationship shall be exclusively settled by the competent courts at HOTMOBIL’s principal place of business. Further, HOTMOBIL will be entitled to take action before the competent courts at the purchaser’s place of business.