General Conditions for the Lease of Machinery / Installation Equipment I. Validity VIII. Special Obligations of Lessee 1.1. These General Conditions for the Lease of Machinery / Installation Equipment (hereinafter: "GC-Lease") 8.1 The lessee is obliged to protect the Leased Property from any overstrain and to ensure proper use, in apply to our business relations with entrepreneurs, legal persons under public law and special funds under public particular, also by trained staff. The lessee is obliged, at its own cost and expense, to service and maintain the law within the meaning of § 310 (1) BGB [German Civil Code]. Leased Property in an expert manner (e.g. refilling of operating materials), or to cause the Leased Property to be 1.2 Our GC-Lease apply to all our present and future legal relations with respect to the lease of serviced and maintained at regular intervals and, in this context, to observe our relevant maintenance, service and machinery / installation equipment (hereinafter: "Leased Property"), unless otherwise agreed upon in writing in use regulations. Repair work will be performed exclusively by us. the individual case. 8.2 The lessee is obliged to comply with and to fulfil all legal and administrative regulations concerning the 1.3 Deviating statements and business conditions of the lessee do not bind us even if we do not object to them possession, the use or the maintenance of the Leased Property. The lessee is obliged to obtain the permits and even if they are not expressly in conflict with our GC-Lease, but only if confirmed by us in writing. necessary for the use / operation of the Leased Property, in particular, permits under public law / approvals of public authorities. We are free from any claims resulting from culpable non-observance of this obligation. II. Offer and Conclusion of Contract 2.1 Our offers are subject to change and non-binding until accepted by the lessee. Our written confirmation is IX. Claims based on Defects decisive for the acceptance and the execution of orders. The acceptance period for an order is two (2) weeks for 9.1 We will, at our cost and expense, keep the Leased Property in serviceable condition and remove all defects us. Objections to our order confirmation must be raised in writing without delay, but not later than one (1) week occurring in spite of proper use, at our choice, either by repair or by replacement, provided that the obligations of after receipt, otherwise the transaction is deemed concluded on the conditions confirmed by us in writing. The the lessee pursuant to Clause III. and Clause VIII. are provably fulfilled. If repair or replacement is possible only execution of the order is subject to availability of the Leased Property pursuant to Clause 5.1. at disproportionate costs, Clause 11.4 applies mutatis mutandis. In the event of termination pursuant to Clause 11.4, the lessee will be reimbursed the rent on a pro rata basis. 2.2 Our representative concluding the transaction is not authorized to make verbal ancillary agreements or to 9.2 If the defect of the Leased Property has been caused by a third party without fault being involved on our part make commitments which go beyond the written contract. Therefore, special agreements with the representative or on the part of the lessee, we will assign our claims against the third party to the lessee against payment of the concluding the transaction are valid only if confirmed by us in writing. necessary repair costs by the lessee. 9.3 The removal of all other defects of / damage to the Leased Property, in particular, any defect / damage caused III. Leased Property by inappropriate or improper use, faulty putting into operation, changes or maintenance measures made contrary 3.1 The Leased Property is leased for exclusive use by the lessee. The lessee may not sublease the Leased to the contract by the lessee or by a third party instructed by the lessee, faulty or careless handling - especially Property, or assign any rights under the contract, to a third party nor otherwise permit a third party to use or co- overstraining -, improper operating means and replacement materials, defective construction work, improper use the Leased Property. Pledging or transfer of ownership as security is not permissible. construction and/or working base, chemical, electrotechnical or electric influences shall be at the lessee's expense 3.2 The Leased Property remains our property during the term of the contract. as far as the defect / damage is not due to our fault. This applies also to corrosion and rust damage. 3.3 The lessee may not damage, change, remove or obliterate the signs, numbers or other inscriptions affixed by 9.4 Any occurrence of malfunction, error, defect or damage must be notified to us immediately. us to the Leased Property. 3.4 The lessee bears the risk for the Leased Property for the whole period from the time when the Leased X. Liability Property leaves our plant or other storage location until received by us again. 10.1 In the event of breach of duty which does not consist in a defect of the Leased Property or which has caused 3.5 Our prior consent shall be required for any change to the Leased Property, in particular, but not limited to, damage in excess of defectiveness, we are liable in accordance with the statutory provisions unless otherwise built-ons and built-ins as well as combination with other objects. In the event that any change is required by provided hereinafter: public authorities, we shall immediately be notified thereof. Changes, built-ons and built-ins made without prior 10.2 Liability for slight negligence on our part or on the part of our servants is excluded. consent shall become our property without compensation. The right of removal is excluded. We can demand that 10.3 The above exclusion of liability does not apply in the event of breach of a guarantee or material contractual the original condition of the Leased Property be restored at the lessee's cost and expense. duty. However, in this case, our liability is limited to compensation for the typically occurring damage. 3.6 In the event of access by a third party (seizure, attachment etc.), the lessee shall immediately disclose the 10.4 The provisions in Clause 10.2 and Clause 10.3, sentence 2, do not apply in the event of injury to life, body ownership situation in writing and notify us immediately, making available all necessary documents to us. Any or health or to claims under the Product Liability Act which remain unaffected. compensation claims that might accrue to the lessee as a result of access by a third party are assigned to us here 10.5 The lessee shall return to us the Leased Property at the agreed date and in a state and condition complying and now. The lessee shall bear the costs of any and all measures for removing such interference. with the contract. If the lessee breaches this duty, we can claim compensation for the damage caused to us as a 3.7 Upon request, the lessee shall, after consultation, give us or our agents access to the place of installation of result thereof (e.g. in the form of loss of profit from re-lease). This does not apply if the lessee is not responsible the Leased Property at any time during normal business hours in order to verify the use and the readiness for for the breach of duty. Clause 9.3 remains unaffected. operation of the Leased Property. We will bear the costs of the inspection, except the costs incurred by the lessee itself. XI. End of Lease, Right of Termination 11.1 The lease ends upon expiry of the agreed lease term. IV. Operation, Operating Instructions, Training of Operating Staff 11.2 The lessee may give notice of termination of the contract if the transfer for and permission of use becomes 4.1 The Leased Property may be operated only by an expert, i.e. by trained staff. This qualification is fulfilled by finally impossible for us for a reason for which neither we nor any of the parties is responsible. This right exists the lessee if the lessee and/or its staff have definite, trade-specific experience in dealing with the Leased Property also if, in the event of delayed availability of the Leased Property (Clause 5.1), we let a reasonable deadline fixed and/or similar machinery / equipment or have been trained by us in handling the Leased Property. for us for the transfer for use expire, or the transfer for use and the permission of use becomes partially 4.2 The lessee will be given operating instructions in the German language or (at the lessee's request) in the impossible before transfer of the risk and the lessee has a legitimate interest in rejecting the partial performance. English language. Operating instructions in any other language will be made available to the lessee if the lessee 11.3 The lessee may terminate the contract without notice if we culpably let expire a reasonable period fixed for reimburses us in advance for the translation costs. us for rectifying a defect for which we are responsible or if the removal of the defect by the lessee or by a third 4.3 If the lessee does not have sufficient experience in handling the Leased Property and/or similar machinery / party is not possible or can no longer reasonably be expected. If the lessee justifiably terminates the contract equipment, we will train staff of the lessee in operating the Leased Property on the basis of an order to be placed without notice, we will bear the costs and the risk of the return transport of the Leased Property. separately. Such training will take place at the lessee's business. Our travelling expenses and board and lodging 11.4 We are entitled to terminate the contract without notice for good cause, inter alia, if and when: costs in connection with the training shall be borne by the lessee. In all other respects, our General Conditions for - the lessee is in arrears with one payment of rent or any other specifically agreed payment, in whole or in part, Training and Support (GC-Support) shall apply to the training of personnel of the lessee. for more than two (2) weeks after a reminder, - the lessee transfers the Leased Property or part thereof to a place other than the place specified in the contract V. Delivery, Transport without our consent, 5.1 The execution of the order, i.e. the delivery of the Leased Property to the lessee, shall be subject to - the lessee fails to fulfil its obligations under Clause III. and Clause VIII. immediately after a warning, availability of the Leased Property. At the time of conclusion of the contract, the Leased Property, as a rule, is - the lessee permits a third party (Clause 3.1) or untrained staff (Clause 4.1) to use the Leased Property. not located at any of our facilities, but is used by another lessee (hereinafter: "Previous Lessee"). After return of 11.5 In the event of termination of the contract without notice, we are entitled to claim half of the remaining rent the Leased Property by the Previous Lessee, the Leased Property will be inspected and serviced by us. Hence, the until the end of the lease term as lump-sum compensation. The lessee is entitled to prove that smaller or no availability of the Leased Property depends on the fact that the Previous Lessee returns the Leased Property in a damage has occurred. timely manner and in the contractually agreed state and condition and that the necessary inspection and servicing 11.6 In the event that the lessee does not comply with the contractual agreements in spite of a warning, we may work does not exceed the usual scope and the fixed time frame. We assume no liability for any delay due to a also – without the necessity to terminate the contract without notice – put the Leased Property out of operation respective breach of duty by the Previous Lessee; Clause 11.2 applies with respect to the lessee's right of until compliance or remove it at the lessee's cost and expense. The costs shall be borne by the lessee. termination. 5.2 Delivery of the Leased Property takes place ex warehouse which is also the place of performance. At the XII. Return lessee's request, the Leased Property will be sent to a different place of destination. We are entitled to determine 12.1 Upon termination of the contract, the lessee shall immediately return to us the Leased Property in proper ourselves the carrier or forwarding agent, the routing, the means of transport and protection, unless self- and especially in clean and complete condition – taking into account wear and tear which is normal for the lease collection and/or collection by a third party has been agreed upon and the lessee has not given any special term and which will be at our expense – (place of performance: our warehouse). The lessee waives the right of instructions in this regard. Clauses 5.4 and 6.1 remain unaffected. retention. 5.3 If the lessee is in default of acceptance, we are entitled to terminate the contract without previous notice after 12.2 External defects of and damage to the Leased Property will be notified by us in writing without delay after prior warning or to fix a reasonable period for the lessee to accept the Leased Property stating that we will repossession (i.e. after arrival of the Leased Property at our warehouse). Other defects and damage can no longer otherwise dispose of the Leased Property after expiry of the fixed period and make available to the lessee a be complained about after expiry of one (1) month after repossession. corresponding Leased Property within a reasonably extended period. 12.3 Before dispatch or collection, we may ourselves examine the Leased Property or have it examined by an 5.4 The costs of the transport of the Leased Property from us to the lessee and, upon termination of the contract, expert. The expert is to determine the extent of any defects and damage, the probable cost of rectification thereof from the lessee to us shall be borne by the lessee. Likewise, the lessee shall bear the packaging and loading costs and the decrease in value of the Leased Property, if any. Each party shall bear half of the examination costs. If including securing the load. the expert does not ascertain any defect or damage, we will bear the costs of the expert in full. 12.4 Defects of and damage to the Leased Property over and above the normal wear and tear and/or caused by VI. Rent, Security Deposit, Fees improper use shall be at the lessee's expense. 6.1 Unless expressly otherwise agreed upon in writing, the rent does not include ancillary costs such as costs of loading and unloading, including securing the load, packaging, freight / transport, mounting and dismounting, XIII. Place of Jurisdiction, Choice of Law repair, maintenance, spare parts and tool costs, provision of operating materials and personnel as well as costs of The place of jurisdiction for any and all disputes between the parties arising from the contractual relationship is accessories. Berlin. German law applies to the relationship between the parties including for cross-border transactions the 6.2 Unless otherwise agreed upon, the rent shall be payable monthly in advance, not later than by the third United Nations Convention on Contracts for the International Sale of Goods (CISG). The German version of working day of the month. these GC-Lease shall exclusively be authoritative. 6.3 The lessee may set off only counterclaims that have become res judicata or that are uncontested against our claims or may retain payment only on the same conditions. In all other respects, the lessee has no right of set-off against due claims to which we are entitled or to retain any payment. BKP Berolina Polyester GmbH & Co. KG 6.4 We can ask the lessee to provide a security deposit before delivery / shipment of the Leased Property. Unless Date: November 2008 otherwise agreed upon, a security deposit in an amount equal to the rent for three (3) months shall be provided. Alternatively, we can demand that the lessee provides a payment guarantee/surety payable upon first demand of a big German bank to secure any and all claims under the lease contract. 6.5 The lessee is responsible for any public law fees, contributions, customs duties and other charges levied during the term of the contract on the basis of the lease, the possession and/or the use of the Leased Property. This applies also to the costs of inspections required by public authorities. VII. Insurances 7.1 The lessee is obliged, at its own cost and expense, to take out a (third party liability) insurance in our favour for the term of the lease which covers damage to the Leased Property caused by the lessee. The minimum insurance sum is EUR 500,000 or the equivalent amount in a different currency. 7.2 Upon request, the lessee will forward the confirmation of cover and/or the security note [Sicherungsschein] of the insurer or submit the same for inspection. The lessee hereby irrevocably assigns to us all its rights under the insurance contracts concluded on the basis of the lease contract and notifies its insurer thereof.
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