General TERMS AND CONDITIONS for the Rental Park of the companies ZAGRO Bahn- und Baumaschinen GmbH, ZWEIWEG International GmbH & Co. KG, GMEINDER LOKOMOTIVEN GmbH, for exclusive use in business transactions vis-à-vis entrepreneurs, legal entities under public law or a special fund under public law
1.1. These General Terms and Conditions of Rental Agreement apply to all rental offers and rental contracts of the Lessor as well as the resulting rentals of rail vehicles, shunting equipment, road-rail vehicles, shunting locomotives, construction, and industrial machinery. These rental contract conditions apply exclusively. The Lessor does not recognise any terms and conditions of the Lessee that conflict with or deviate from these conditions unless he has expressly agreed to their validity in writing. The terms and conditions of the Lessor shall also apply if he carries out the rental to the Lessee without reservation in the knowledge of conflicting or deviating terms and conditions of the Lessee. The Lessor reserves the right to change these conditions at any time.
1.2. Individual agreements made with the Lessee in individual cases (including ancillary agreements, additions, and changes) shall in any case take precedence over these rental contract conditions. For the content of such agreements, a written contract or the written confirmation of the Lessor is decisive.
1.3. Legally relevant declarations and notifications that are to be submitted by the Lessee to the Lessor after conclusion of the contract must be made in writing to be effective.
1.4. Unless otherwise stated, the offers of the Lessor are non-binding.
1.5. All oral and written information about the Rental Object, such as in advertising documents, illustrations, directories or other documents, about technical performance, operating characteristics, and usability for the intended use of the Lessee are only part of the contract with written confirmation by the Lessor.
1.6. The Lessor expressly reserves the right to rent a Rental Object other than the one offered for good reason of the Lessor, if the other Rental Object is suitable for the intended use by the Lessee in a comparable manner and the rental of the other Rental Object is reasonable for the Lessee considering the interests of the Lessor.
1.7. The Lessor reserves the right, upon conclusion of the contract, or during the term of the contract, to demand the provision of a reasonable non-interest-bearing deposit within the meaning of § 315 BGB.
1.8. These General Terms and Conditions of Rental Agreement apply only to a company, a legal entity under public law or a special fund under public law in accordance with § 310 paragraph 1 sentence 1 BGB.
1.9 The General Rental Conditions are available and printable at:
2.1. If the contracting parties have not agreed on a deviating start of the rental contract, the tenancy begins on the agreed day of collection (loading) or delivery of the rented item. If the collection or retrieval of the Rental Object provided by the Lessor by the Lessee does not take place on the agreed date, the Lessor is entitled to terminate the rental contract without notice and to rent the Rental Object elsewhere. The Lessor is entitled to demand compensation from the Lessee for any damage resulting from the Lessee's default.
2.2. The tenancy of a rental contract concluded over a limited period ends at the earliest with the expiry of the agreed term; during this time, an ordinary termination is excluded. If the rental contract is not terminated in writing by one of the contracting parties at the latest one month before the end of the agreed term, it is automatically extended indefinitely and can be terminated in writing subject to a notice period of one month to the end of a calendar month.
2.3. The tenancy of a rental contract concluded over an indefinite term can be terminated in writing by both contracting parties subject to a notice period of one month to the end of a calendar month.
2.4. If a minimum rental period has been agreed within the framework of a rental contract concluded for an indefinite period, an ordinary termination during this minimum rental period is excluded.
3.1. The Lessor is obliged to hand over the Rental Object free of defects and ready for operation. The Lessee is obliged to inspect the Rental Object upon handover for freedom from recognizable defects and operational readiness. The Lessee is obliged to notify later defects immediately in writing.
3.2 With the handover of the Rental Object, all risks arising from a breach of the duty of care about the Rental Object by the Lessor pass to the Lessee, and in particular those of destruction, loss, theft, deterioration, damage, and premature wear and tear. In the event of theft, damage by third parties and other offences, the Lessee is obliged to report immediately to the responsible police station and to secure evidence in this regard as well as to inform the Lessor immediately in all the cases.
3.3 Without prejudice to Section 8 of these rental contract conditions, any liability for damages of the Lessor due to delay is limited to a maximum of two daily net rents per day of delay.
3.4 The Lessee may only put the Rental Object into operation after proper acceptance and instruction by the Lessor or persons commissioned by the Lessor. The Lessor does not owe detailed advice on the use and operation of the Rental Object to entrepreneurs.
4.1. The Lessee undertakes to use the Rental Object exclusively at the contractually agreed place of use within the scope of the operational suitability of the Rental Object and to have it operated exclusively by suitable specialist personnel.
4.2. The Lessee may only use the Rental Object on public or limited public transport areas if it has a road permit in accordance with the Road Traffic Licensing Regulations (StVZO). Unless otherwise agreed, the Lessor is responsible for the conclusion of a legally prescribed liability insurance within the meaning of the road traffic regulations and bears the associated costs. The Lessee is responsible for compliance with any regulations applicable to operational and traffic safety, in particular the Road Traffic Act (StVG), the Road Traffic Regulations (StVO) and the StVZO. For third-party damage in rail operation, the Lessee must take out sufficient insurance cover in accordance with the national law of the place(s) of use of the Rental Object (liability insurance). The use of the vehicle may only take place in accordance with the national law of the place(s) of use of the Rental Object and provided that the aforementioned insurances have been concluded.
4.3. The Lessee undertakes to insure the Rental Object during the rental period at his own expense against all typical risks in favour of the Lessor by means of machine or comprehensive insurance at replacement value, in particular against fire, theft, other loss, faulty operation, and construction site accidents of any kind. Upon request, the Lessor must be provided with proof of insurance cover before handing over the Rental Object. The Lessee assigns all current and future claims from the insurance taken out by him to the Lessor. The latter accepts the assignment. Insofar as an assignment of the claims should be excluded in the insurance conditions, the Lessee irrevocably authorizes the Lessor to assert and collect the claim against the insurer.
4.4 The Lessee is liable to the Lessor for fines, fines and penalties that are due to his culpable conduct or non-observance of legal provisions or to the culpable conduct or non-observance of legal provisions by third parties to whom he has left the Rental Object. The Lessor is entitled to pass on personal data of the Lessee to the competent authority in the event of police warning, administrative offence, and criminal proceedings.
4.5. The Lessee may only make installations and changes that do not serve the preservation or repair of the Rental Object with the prior written consent of the Lessor. With the return of the Rental Object, installations become the property of the Lessor without compensation, unless the Lessor has agreed to the installations in writing and an increase in value of the rental property is still available upon return. However, the Lessee is entitled to remove any installations made by him at the end of the contract on the condition that the original condition is restored. At the request of the Lessor, the Lessee is obliged to restore the original condition at the end of the contract at his own expense, unless the Lessor has waived this in writing.
4.6. The Lessor is entitled at any time to inspect the Rental Object and to have it technically examined or inspected. The costs for this shall be borne by the Lessor, unless a defect turns out that the Lessee has not remedied in breach of duty.
4.7. The Lessee is obliged to have all repair work for which he is responsible carried out at his own expense by the Lessor or by a company authorised by the Lessor.
4.8. The transfer of the Rental Object to another place of use requires the prior written consent of the Lessor and proof of the comprehensive insurance cover to be procured by the Lessee, for the risks of theft, fire and other loss, as well as temporary non-traceability. The insurance must be taken out on the Lessor as the beneficiary. Before a corresponding transfer of the Rental Object to another place of use, the Lessee is obliged to provide the Lessor with a corresponding insurance confirmation in accordance with the provisions of this Section 4.8. to be handed over.
4.9. Subletting or other transfer of use to third parties is excluded. Excluded from this are sales partners of the Lessor who carry out a subletting to your end customers.
4.10. Should third parties assert rights to the Rental Object by seizure, confiscation or on the basis of other rights or unauthorized rights or take possession of it authorized or unauthorized, the Lessee is obliged to notify the Lessor immediately and in advance orally or by telephone as well as to inform the third party or third parties in advance of the ownership of the Lessor also immediately and demonstrably in writing and to inform the Lessor of this written notice to the Lessor must also be transmitted without delay. The Lessee is obliged to reimburse the Lessor for all costs of recovery and, at the request of the Lessor, to make reasonable advances for the legal costs, if he is responsible for causing the costs.
5.1. In coordination with the Lessee, the Lessor carries out all service work in accordance with the manufacturer's recommendations and instructions, within the service intervals recommended by the manufacturer, as well as the annual deadline inspection once a year. The UVV check is carried out exclusively in conjunction with due services or in conjunction with repair services, if these are provided within the framework of this rental contract or on the basis of a separate agreement.
5.2. The service does not include repair and replacement services in the event of the following damages and malfunctions based thereunder.:
5.3. The service does not include any ongoing operating costs of the Rental Object (e.g. for fuel, lubricants, cleaning, cooling water). The Lessee bears the costs of the operating resources.
5.4. The Lessor shall provide the services and - within a reasonable time after notification of a fault - repair services at the agreed place of use of the Rental Object. The time required for the provision of spare parts orders must be considered in the time required for the provision of repair services. The Lessor is entitled, but not obliged, to fulfil his performance obligations for repair also by providing the Lessee with a replacement item equivalent to the Rental Object.
5.5. For the performance of the service, the Lessee shall make the Rental Object available to the Lessor's fitters at the place of use at a suitable work area. If this is not possible, necessary low-loader transports and the use of a third-party workshop will be invoiced separately. During the presence of the Lessor's customer service staff, the Lessee shall keep an employee at the agreed place of use of the Rental Object at his disposal. If the customer service personnel are unable to carry out the work at the Lessee's premises or only belatedly for reasons for which the Lessee is responsible, or if the Rental Object is not at the agreed place of use, the Lessee must reimburse the Lessor for any additional costs incurred.
5.6. The Lessor is entitled to outsource the services to be provided within the scope of the service to a suitable third-party company and to have them carried out by them.
5.7 The Lessee is obliged to check and maintain the Rental Object at his own expense daily, weekly, monthly in accordance with the operating, safety and control regulations handed over by the Lessor, in particular to regularly check the oil and water levels, not to deeply discharge the battery of electric machines, and to carry out lubrication services. He undertakes to use only technically suitable and legally permissible equipment. Damages resulting from omitted care shall be borne by the Lessee. In all other respects, the Lessee and his vicarious agents must observe the operating and control instructions in full and avoid overloading the Rental Object.
6.1. The Lessee is obliged to return the Rental Object including all possible accessories in due time within the meaning of Section 2 of these rental contract conditions free of defects, cleaned including all keys and papers handed over. The return of the Rental Object by the Lessor is subject to a check of the proper condition.
6.2 Any damage/defects of the Rental Object must be reported by the Lessee to the Lessor in full when returning the Rental Object. If third parties (transport companies) carry out the return transport, the Lessee must notify the Lessor in writing of any damage/defects to the Rental Object.
6.3. Upon return of the Rental Object by the Lessee, the Rental Object shall be inspected immediately. The binding return control (acceptance) for any damage takes place only after the return of the Rental Object in the respective business premises of the Lessor. This also applies if the Lessor carries out the return transport himself. Employees of a transport company commissioned by the Lessor, for example with the return transport, are not entitled to carry out a return control (acceptance) or otherwise make legally binding declarations on behalf of the Lessor. However, in addition to the written obligation to notify the Lessor, the Lessee is obliged to notify the Lessor's transport staff or the transport company of any damage/defects when handing over the Rental Object for return transport. If defects are found during the inspection, the condition of the Rental Object is recorded in a return protocol. Insofar as there is no agreement between the contracting parties on the existence of defects in individual cases, each contracting party is entitled to demand the inclusion of its view in the return protocol. Each of the contracting parties may request the examination of the Rental Object by a publicly appointed expert to be appointed by the Chamber of Industry and Commerce locally responsible for the Lessor. The costs of the expert shall be borne by the Contracting Parties, depending on the outcome of the expert's findings on the existence or absence of deficiencies in the ratio of their success or defeat. The expert must also document, in accordance with the order, the ratio in which the contracting parties are obliged to bear the expert costs.
6.4 If defects, damage or need for maintenance are detected, the Lessor is obliged to notify the Lessee immediately and to enable him to carry out an inspection by inspection. In this case, the Lessee is only obliged to reimburse the repair and maintenance costs if the Lessor proves to the Lessee that the Lessee is responsible for the defects, damage, or maintenance work, or if these were incurred during the rental to the Lessee.
6.5 If the Rental Object cannot be rented elsewhere due to circumstances for which the Lessee is responsible, due to damages, premature maintenance work or due to the lack of return with all accessories or due to other circumstances for which the Lessee is responsible, the Lessee shall be liable for damages. The following Section 6.6 shall apply mutatis mutandis to the scope of the obligation to pay damages. The assertion of further claims for damages of the Lessor remains reserved. However, the Lessor will make every effort to minimise the damage. If the return of the Rental Object is incomplete, in particular about any accessories, the Lessor is entitled and obliged, at his discretion, to provide any available rental accessories or other missing parts on a rental basis and against additional remuneration in order to enable another rental.
6.6. If it has become impossible for the Lessee to return the Rental Object for a reason for which he is responsible or if the repair costs would amount to more than 60% of the current value in the event of defects or damage for which the Lessee is responsible, the Lessor is entitled to an immediate termination of the rental contract. The Lessee is obliged to pay damages in the amount of the current value of the defect-free and fully operational Rental Object plus a replacement cost lump sum of 2%. This obligation is without prejudice to the Lessor's right to prove and demand the incurrence of higher replacement costs, as well as compensation for use in the amount of the daily rent for a reasonable period of time for replacement by the Lessor, but for a maximum of one month, if the Lessor proves the immediate re-rentability, otherwise in the amount of 65% of the monthly rent for the respective daily pro rata loss. The Lessor is obliged to make all reasonable efforts to minimize the damage. Further claims for damages of the Lessor remain unaffected.
7.1 In return for the transfer of the leased object for use, the Lessee pays the rent agreed in the rental agreement, including any other monthly fees agreed in the rental agreement (the term "rent" is hereinafter understood to include these fees). The rent is exclusive of the statutory value added tax in its respective amount without costs for any transports from the premises of the Lessor, as well as without operating materials and without personnel of the Lessor.
7.2 The rent includes the annual number of operating hours agreed in the rental agreement. The Lessee is obliged to inform the Lessor of the status of operating hours at the end of each contract year and to enable the Lessor to check the operating hours on request. If the agreed annual number of operating hours is exceeded, the Lessor is entitled to recalculate the additional operating hours at the price agreed in the rental contract for the respective contract year. If the term of the rental agreement is less than one year or if the lease ends for other reasons during a contract year, the additional operating hours are determined and calculated on a pro rata basis. The claim to remuneration of the additional operating hours is due upon invoicing.
Multi-shift operation and more difficult assignments must be reported to the Lessor. They will be charged additionally.
A refund or credit of unused operating hours included in the rent during or at the end of the rental contract is excluded. The Lessor's claim to remuneration for additional operating hours shall become statute-barred within a statutory period with the proviso that the statute of limitations shall commence at the earliest six months after the return of the Rental Object to the Lessor.
7.3 The rent is due for payment in advance on the first day of each calendar month. This also applies if invoices issued by the Lessor for accounting purposes for each calendar month are received by the Lessee later. If the rental contract begins during a calendar month, the fee for the period up to the first of the following month is calculated pro rata per day based on the agreed monthly rent and is due for payment at the beginning of the rental contract and invoicing. If the rental contract ends during a calendar month, the fee for this month is also calculated pro rata.
7.4 The Lessor is entitled to transmit his invoices electronically to the Lessee.
7.5 If payment by bank transfer is agreed, the rent and the other amounts owed are to be transferred free of charge to one of the Lessor's specified accounts on the respective due date for the Lessor; decisive for the timeliness of the payment is the receipt on the account of the Lessor.
7.6 In the event of default in payment, the Lessee shall pay default interest at the statutory rate and the statutory lump sum for default; the assertion of further legal claims and rights due to delay remains reserved.
7.7 The Lessor is entitled and in the event of changes in favour of the Lessee obliged to adjust the rent annually to interim changes in the costs for agreed services due to cost changes in the area of wages, salaries and spare parts, as well as in the case of insurance of the Rental Object by the Lessor to interim changes in the insurance costs of the insurance costs.
An adjustment is considered for the first time with effect at the beginning of the second year of the contract and becomes effective in the event of an increase on the date specified by the Lessor, but at the earliest one month after receipt of the notification of the adjustment against the Lessee.
7.8 The Lessor is also entitled and, in the event of changes in favour of the Lessee, to adjust the rent if and to the extent that the statutory taxes, in particular the value added tax, change or new object-related taxes are introduced that relate to the use of the Rental Object and affect the Lessor.
8.1. The settlement of the rent and other claims of the Lessor takes place in advance plus the statutory value added tax in their respectively applicable amount. In the case of a rental contract concluded over a limited rental period, the total invoice amount will be calculated at the first settlement until the planned end of the lease. The monthly advance payments are indicated on the rental invoice with the respective due date and are to be settled by the Lessee in due time.
8.2. The Lessor is entitled to demand an appropriate deposit, advance payment and/or advance payment from the Lessee at any time.
8.3. The calculated amounts are payable to the Lessor within two weeks of receipt of the invoice by the Lessee without deductions at the latest.
Claims for damages can only be asserted by the Lessee against the Lessor in the following cases:
Otherwise, the liability of the Lessor for damages against the Lessee is excluded.
10.1. By signing the rental contract, the Lessee assigns by way of security all present and future claims and claims against his insurers (insofar as this is permissible under the conditions of his insurers) in the amount of the present and future claims of the Lessor as well as all present and future claims against his client about those services of the Lessee for the provision of which the Rental Object was used. The Lessor accepts the assignments. The Lessor undertakes vis-à-vis the Lessee not to disclose the assignment of claims to the third-party debtor(s) as long as the Lessee is not in default, or the tenancy has not been terminated for good cause.
10.2. If the Lessor has terminated the contract for good cause or the Lessee should be in default with the return of the Rental Object, the Lessor is entitled to take possession of the Rental Object without the consent of the Lessee. The Lessee is obliged to allow the Lessor access to the location of the Rental Object and to tolerate the removal.
11.1. The Lessee shall only be entitled to offset counterclaims or withhold payments to the extent that his counterclaims are undisputed, legally established, or ready for decision in legal proceedings.
11.2. The power of the Lessee to assign claims arising from this contract to third parties or to authorise third parties to collect claims or to assert claims arising from this contract is excluded; however, this does not apply to the assignment of pecuniary claims.
The Lessor may refuse the performance incumbent on him vis-à-vis the Lessee if, after conclusion of the rental agreement, it becomes apparent that his claim to the rent is endangered by the Lessee's inability to pay. This right to refuse performance does not apply if, however, the rent is affected or security is provided for it.
13.1. Without prejudice to the ordinary termination in accordance with Section 2.2 of these Rental Agreement Conditions, the Rental Agreement may be terminated extraordinarily by both contracting parties in the event of good cause. If the important reason consists in the violation of an obligation under the contract, the termination is only permissible after the unsuccessful expiry of a period intended for remedy or after an unsuccessful warning.
13.2. An important reason for termination for the Lessor exists if:
To the extent necessary for business transactions, order-related customer data will be collected and processed during the business relationship. This customer data is transmitted internally to sales and service employees of the Lessor and, if necessary, to external business partners for a specific purpose.
The Lessee agrees that his data may also be used for the purpose of sending information about our products and our services to him. The Lessee can revoke his consent at any time.
If rental items are equipped with location modules (Telematic), the Lessee agrees to the collection and processing of location data (GPS) and associated machine data (machine use, engine characteristics and movement) by signing the rental contract/delivery note. The Lessee, in turn, undertakes to comply with all relevant data protection and labour law provisions regarding his employees and other users of the machines, to point out the technical possibilities of the module or the collection, collection and storage of data and to obtain consent to this. He indemnifies the Lessor from any liability in this regard in the event of a claim by third parties.
The Lessee agrees that the services of the Lessor will be billed electronically until revoked. This explicitly includes the dispatch of electronically written invoices, credit notes and, if necessary, reminders while at the same time dispensing with paper shipping.
The confidential and secure treatment of the data within the meaning of the Federal Data Protection Act and other data protection provisions such as the EU-DS-GVO is guaranteed. This applies to the purposeful transmission to third parties, e.g., through the conclusion of contracts for order processing with the inclusion of suitable guarantees with careful selection of the partners and service providers of the Lessor.
15.1. All questions arising from or in connection with the tenancy underlying the contracting parties are subject to the law of the Federal Republic of Germany.
15.2. Unless otherwise agreed in the rental agreement and in these rental conditions, the exclusive place of performance for all obligations arising from the rental agreement is the registered office of the Lessor, provided that the Lessee is a merchant.
15.3. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the tenancy is the registered office of the Lessor, provided that the Lessee is a merchant, a legal entity under public law or a special fund under public law. However, the Lessor is also entitled to appeal to the court at the place of business of the Lessee.
ZAGRO Bahn- und Baumaschinen GmbH | ZWEIWEG International GmbH & Co. KG | GMEINDER LOKOMOTIVEN GmbH