AGB

 

Schmidbauer GmbH & Co. KG General Terms and Conditions

1. Applicability

  • 1.1. The general terms and conditions (GTC) stated below apply for all performances of Schmidbauer GmbH & Co. KG in connection with orders for transportation or provision of cranes. All orders for the transportation of goods executed by us are regarded as contracts of affreightment in accordance with the HGB [German Code of Commercial Law). Our performances are based on the conditions below, provided that they are not opposed by other binding regulations. For the provision of cranes the regulations that apply are the BGB[German Civil Code]-regulations for rental contracts in connection with the service/performance procurement contract.
  • 1.2. GTCs of customers deviating from the provisions stated hereinafter and that we do not explicitly accept in writing are not regarded as binding for us, even if we do not expressively reject them.
  • 1.3. Our GTCs will be applicable for all future commercial relations involving transportation of goods or provision of cranes without expressive agreement. Upon first incorporation of theses GTCs a framework contract for such future transactions is arranged.

2. Offer and Order

  • 2.1.All offers are without engagement. Oral agreements require written approval.
  • 2.2. The completion of orders requiring official approval, especially approvals according to § 70 StVZO [German Road Traffic Admission Regulations] and § 29 StVO [German Road Traffic Regulations] is subject to these approvals.

3. Calculation and Prices

  • 3.1. Calculation of prices will be made in accordance with the information by the client. Changes of orders entitle Schmidbauer GmbH & Co. KG to an alteration of prices. Alterations of prices due to an increase of costs or rates are acceptable in the event that our services are to be performed later than four months after the conclusion of the contract. In case prices are increased by more than the increase of cost of living, the client has the right to withdraw from the contract.

4. Consequences of default

  • 4.1. For default of performances induced by us, we will assume liability for an occurred damage only in accordance with the regulations below, provided that no binding statutory regulations dictate otherwise.
  • 4.2. In the event that performances to be completed by us are delayed for binding unforeseeable reasons that occurred without our fault (for example: inevitable events, force majeure, weather conditions, etc.), the agreed period of performance will be extended by the duration of the delay. We shall inform the client immediately about any possible delay. For the event that the period of a delay is inappropriately long, each contracting party can withdraw from the contract without the obligation of compensation. Regardless of the afore mentioned facts, our liability is restricted to the amount of the agreed remuneration, provided that malice or gross negligence are not on hand.

5. Cancellation of the Contract

  • 5.1. The client has the right, upon existence of an important reason, to cancel the contract. The cancellation needs to be made in writing. In this case, the client is obliged to pay the agreed amount of remuneration, provided that the reason for the cancellation was not called forth by us. Expenditures saved as well as proceeds gained from other assignments or culpably not gained profits are to be considered in the calculation of remuneration.
  • 5.2. Schmidbauer GmbH & Co. KG has the right to cancel the contract in the event that before or during the execution of the contract it becomes obvious that the performance cannot be continued or completed in the designated manner, especially if it can be assumed or seems probable that damage will be caused to other and/or own objects and/or assets through the employment of vehicles, machines and working equipment; and if these circumstances were not identifiable at conclusion of the contract and are not the fault of Schmidbauer GmbH & Co. KG. In such an event the client shall pay the remuneration proportionally according to the completed performances. Claims of compensation against Schmidbauer GmbH & Co. KG are not permitted in such a case.

6. Liability

  • 6.1. Schmidbauer GmbH & Co. KG shall perform all orders the company is recruited for in a proper and competent manner and with due expenditure of means and technical resources in reference to all relevant recognised codes of practice.
  • 6.2. In the event that the main performance of Schmidbauer GmbH & Co. KG is the transportation of goods, the statutory regulations on affreightment businesses will be applicable, provided that these terms and conditions do not state otherwise. However, according to these regulations, the liability of Schmidbauer GmbH & Co. KG is restricted to 8.33 Special Drawing Right (SDR) per kilogram of damaged or lost goods.
  • 6.3. For damage on goods lifted by cranes we shall be liable up to the amount agreed in the insurance contract of € 550,000.--, provided that the damage did not result from scienter or grossly negligent behaviour and in the event that the regulations of these terms and conditions do not state otherwise.
  • 6.4. Insurance contracts incorporating a higher amount of coverage can be completed in individual cases and upon request for the invoice of the client, in case a written agreement has been contracted prior to the placing of the order.
  • 6.5. Schmidbauer GmbH & Co. KG is only obliged to insure the goods in case the company is provided with an expressive written document of instruction stating both the insurance value and the dangers to be covered; the mere indication of the insurance value shall not be regarded as a commissioning to effect an insurance.
  • 6.6. For lack of a specifying written agreement, Schmidbauer GmbH & Co. KG will provide insurance according to conditions that are in force in the place of performance.
  • 6.7. For damages to persons and things that were not caused by scienter or grossly negligent behaviour of Schmidbauer GmbH & Co. KG, we shall take on blanket liability on behalf of our third-party insurance General conditions of vehicle insurances and General conditions of third-party insurances for an amount of up to € 1,100,000.-- per damaging event for damages to persons and things.
  • 6.8. Indirect damages that could not be assumed or identified prior to the conclusion of the contract or the execution of the damaging activity are not subject to the liability clause, provided that they were not caused by scienter or grossly negligent behaviour.
  • 6.9. For performances underlying rental contracts in connection with service/performance procurement contracts we shall only be held liable for culpa in eligendo.
  • 6.10. Subcontractors appointed by us as well as employees being recruited for the execution of this order shall also have the right to refer to this limitation of liability.

7. Execution of the orders

  • 7.1. The client shall perform all preliminary works that are required for the execution of the order and shall provide for the appropriate technical conditions to his/her own expenses and maintain these conditions during the entire duration of the execution of the order.
  • 7.2. In order to gain the necessary access to other properties or non-public streets and places for the correct execution of the order, the client obtain an approval from the respective owner(s) or other authorised persons shall to his/her own risk and expenditures. The client shall dispense Schmidbauer GmbH & Co. KG from any claims by owners, authorised persons or other third parties that might result due to unauthorised utilisation of private property. The client shall be liable for claims resulting from the infringement of such obligations to the full extent.
  • 7.3. The client shall be responsible for the appropriate state of the ground, the location and the other facilities — public streets, ways and places excluded facilitating the correct and safe execution of the order. The client shall especially be responsible for the appropriate state of the ground at the place of loading and unloading and/or the location of the crane, showing adequate resistance towards pressure and other strains. Finally, the client is responsible for all particulars about subterranean cable ducts, supply lines, other subterranean conducts and cavities that might influence the load-bearing capacity at the location of performance or the access roads. The client shall provide information about any such subterranean conducts, lines or cavities without being asked. In the event that the client fails to implement his/her obligation of notification, he/she shall be liable for all resulting damages, including any damages/consequential damages to things and assets including vehicles, machines and working equipment of the contractor. In the event that damage occurs to a third party as consequence of the failure to implement the obligation of notification, the client shall dispense Schmidbauer GmbH & Co. KG from any resulting claims for compensation.
  • 7.4. The client is obliged to notify Schmidbauer GmbH & Co. KG in writing and prior to the execution of the order about a person responsible for his/her performance. In case the client fails to state a person, the person responsible on site or the person approving the correct performance by signing the confirmation of performance shall be deemed responsible. Statements or explanations of third parties, who are recruited by the client for performing the above mentioned obligations, shall be regarded as statements or explanations made by the client.
  • 7.5. On placement of the order, the client is obliged to maintain an adequate and appropriate state of the goods to be handled, required for the execution of the order, as well as to provide correct information about dimensions, weights, hoisting points and other specifications of the goods such as centre of gravity, type of material, etc., that are essential for the safe execution of the order.
  • 7.6. In the event that the client provides the hoisting equipment, mountings and hoisting points, the client shall accept full responsibility for the appropriateness of the above mentioned hoisting means as well as in this context for the compliance with all statutory regulations, especially regulations for accident prevention equipment for the hoisting of loads during hoisting operations VBG 9a and other technical regulations. In case damage occurs as a result of the employment of inappropriate hoisting means by the client, the contractor shall be dispensed of all claims for compensation. In case damage occurs on the crane of the contractor as a result of the employment of inappropriate or defective hoisting equipment by the client, the client shall compensate the contractor for this damage including any damage occurring on hoisting means as well as any consequent damage of materials.
  • 7.7. In the event that the client gives instructions of any kind, the client shall be responsible for any consequences resulting hereof. For performances on/with cranes, especially for recovery operations Schmidbauer GmbH & Co. KG shall not perform services according to a contract for affreightment or services but only in accordance with a service/performance procurement contract. The personnel employed by the contractor for the execution of the above mentioned contract are deemed as vicarious agents of the client and are subject to instructions by the client. Success is not owed.
  • 7.8. We reserve the right to have orders placed to us executed by subcontractors.
  • 7.9. Defaults, downtimes and latency times for personnel, cranes, vehicles and machines that are caused by the client, shall be at his/her expense.

8. Payment and Netting

  • 8.1. Our invoices are due for immediate payment after reception strictly net and free of expense. Netting of counterclaims of any kind is only permitted provided that these claims are approved by us or are legally binding.

9. Data Protection

  • 9.1. In connection with this order, the client agrees for his data to be stored and possibly passed on to third parties, provided that they are required for the execution of the order.

10. Concluding Remarks

  • 10.1.Provided that these terms and conditions do not incorporate any deviating regulations, the regulations of GüKG [German Good Transportation Code], of HGB and BGB apply, and especially for contracts for the provision of cranes the regulations of rental contracts in connection with service/performance procurement contracts apply.
  • 10.2. Place of performance is the location of our respective commissioned branch, in doubt, however, the location of our headquarters in Gräfelfing near Munich, Germany.
  • 10.3. The place of jurisdiction for legal disputes resulting from the contract concerning business transactions with business people or legal entities under public law is Munich, Germany.
  • 10.4. In case parts of these general terms and conditions are or become invalid or do not apply for contractual or legal reasons, the other regulations stated in this document shall not be affected.
  • 10.5. Any disputes — even in connection with foreign orders are subject to German law.

Schmidbauer GmbH & Co. KG, Seeholzenstr. 1, 82166 Gräfelfing
represented by Schmidbauer Komplementär-GmbH
this represented by Management: Werner Schmidbauer and Dieter Moser
District court Munich HRA 40107;
HRB 158284 (Schmidbauer Komplementär-GmbH)  
Status as of August 2015