These General Rental and Service Terms and Conditions (hereinafter called „Terms and Conditions“) shall apply – notwithstanding written agreements to the contrary made in individual cases – to all business relations between BERNHARD and their clients regarding technical equipment and services, in particular to rental agreements of all kinds on conference, meeting and exhibition technology as well as interpretation equipment and other offers, deliveries and services. The Terms and Conditions shall also apply to all future legal transactions of this kind, without their applicability having to be agreed upon explicitly in each individual case. Contractual terms in contradiction to the Terms and Conditions or deviating from optional law to the detriment of BERNHARD, in particular in terms and conditions or contract forms of the renter, shall always be considered non-mandatory.
- To take legal effect, deviations from the Terms and Conditions are subject to written approval by BERNHARD.
II. Contractual Basis / Quotations
The order placed by the renter shall provide the basis for the services to be rendered and/or deliveries to be made by BERNHARD.
- Quotations submitted by BERNHARD shall be non-binding. Information provided and statements on product characteristics of any kind made in price lists, brochures, product specifications and other printed matter or public communications only give approximate descriptions and are non-binding in any case; the provision of sub-sect. 2 of sect. 922 of the General Code of Civil Law is contracted out, provided this is permitted by law. An order shall become binding for BERNHARD only upon written order confirmation by BERNHARD or upon delivery; silence shall not be taken as acceptance of an order. The renter is obliged to verify the order confirmation immediately upon receipt. If the order confirmation deviates from the order placed, it shall be deemed approved by the renter, unless a written statement to the contrary is received from the renter within a period of 3 days.
- The staff members and sales agents of BERNHARD shall not be authorised to undertake commitments of whatever nature.
III. Rental Property
The rental property shall be and remain the sole property of BERNHARD, which is herewith acknowledged by the renter. Modifications to the rental property, its removal from the place of use or its handing over to third parties by whatever means shall not be permitted without BERNHARD’s written approval.
- Upon BERNHARD’s demand, the renter is obliged to provide written information on the current location of the rental property at any time.
IV. Rental Period
The rental period shall start with the handing over of the rental property from BERNHARD’s storage facility to the renter or to the carrier and end with its return to BERNHARD’s storage facility. It shall, however, not be shorter than the agreed rental period.
- The rental property shall also be deemed handed over as of the agreed date, if BERNHARD are ready for dispatch and delivery and if the rental property is handed over later than agreed or not at all for reasons within the sphere of influence of the renter and/or his assistants.
V. Delivery, Assembly and Return of the Rental Property
In the absence of written agreements to the contrary, the renter has to pick up the rental property from BERNHARD’s storagy facility in Vienna and return it there in orderly and clean condition, ready for operation.
- If a deposit has been agreed upon, delivery of the rental property can only be made upon full down-payment of the deposit.
- The renter has to make sure that the premises, furnishings and supply installations (e.g. power mains, telephone, Internet access, table for engineering set-up, etc.) are available and accessible in time prior to installation of the rental property as agreed with BERNHARD. Power lines have to be operational. The associated costs shall be borne by the renter. Any additional expenses incurred by BERNHARD on account of the fact that the necessary prerequisites for operation of the equipment have not been provided in time by the renter shall be at the renter’s expense.
- Unless otherwise agreed, the installation, adjustment and set-up of the rental property for use on the renter’s premises shall be performed by BERNHARD, subject to an order to that effect placed by the client. Costs incurred in this context shall be borne by the renter. Any extra expenses, e.g. for additional services, handicaps rendering the performance of services more difficult, work on Sundays and public holidays as well as night work and overtime, shall be at the renter’s expense.
- If the renter fails to return the rental property to BERNHARD on time, BERNHARD are entitled to demand additional compensation amounting to 150% of the rent as of the due date until the time the equipment is returned. In such case, BERNHARD are also entitled – notwithstanding the renter’s obligation to return the equipment and without prejudice to any further claims – to take possession of the rental property and remove it from its location, wherever that may be, at the renter’s expense and risk.
VI. Passing of the Risk
Upon transfer of the rental property from BERNHARD’s storage facility to the renter or the carrier, the risk of accidental, negligent or no-fault destruction, theft, damage or loss of the rental property, as well as events such as accidents, force majeure, strike, civil commotion or war shall pass to the renter; the assumption of the risk by the renter shall end only after the due return of the rental property to BERNHARD’s storage facility. BERNHARD are under no obligation to take out transport or other insurance for the rental property.
- In the event of transport by a carrier operating for the renter’s account, the renter has to make sure that appropriate transport insurance coverage is provided for the rental property.
VII. Services / Compensation for Services
Upon the client’s request, BERNHARD shall render services, besides the provision of rental equipment, such as interpretation services, stage-set construction, photography, lighting engineering and decoration, etc. BERNHARD are entitled at any time to sub- contract such additional services to licensed sub-contractors. A separate compensation for services shall be charged for such additional services. BERNHARD shall not be held liable for any sub-contractor misconduct.
- The compensation for services does not comprise expenses for the set-up of such additional service facilities after transfer to the renter, cleaning and preparation for use, as well as any repairs, wearing parts and spare parts, conversion work, if required, and similar operations, all of which shall be charged separately.
In the absence of a written agreement to the contrary, all prices shall be ex BERNHARD storage facility in Vienna, excluding freight, packaging and insurance, plus statutory value-added tax.
- The prices quoted by BERNHARD are subject to confirmation.
IX. Terms of Payment
In the absence of a written agreement to the contrary, BERNHARD shall submit an invoice for the rent and the compensation for services upon termination of the rental period. If the rental period is longer than two weeks, BERNHARD are entitled to submit invoices for the rent and/or the compensation for services on a weekly basis.
- The invoices submitted by BERNHARD shall be paid after the receipt of the invoice. Bills of exchange and cheques shall only be accepted on explicit agreement and only in lieu of payment. Acceptance shall be at the value as of the date at which the amount is at BERNHARD’s disposal. Discounting charges and all costs associated with the cashing of the bill or cheque shall be borne by the client.
- Payments effecting discharge of the obligation assumed can only be made to the account specified by BERNHARD or to a representative of BERNHARD presenting an original collection authority made out in the company’s name. Incoming payments shall first be credited against costs, then against interest and finally against the capital.
- In the event of a delay in payment, the renter has to pay interest on payment in arrears in the amount of 10 percentage points above the base rate of interest of the European Central Bank, but not less than 1% per month. Any discounts, reductions or other privileges granted shall be deemed null and void if the renter is in arrears or subject to insolvency proceedings. In the event of a delay in payment, the renter is obliged to cover the dunning and collection charges reasonably incurred for out-of- court recovery of the amount outstanding (e.g. lawyer’s fees, costs of collection agencies, etc.)
X. Obligations of the Renter
The renter is obliged to handle the rental property with care, store it in a safe place that can be locked and offers protection from damage and theft, and use it for no other than the intended purpose.
- Upon handing over of the equipment, the renter has to make sure that the rental property, including accessories, is in good condition. Failure to exercise this right is taken as acknowledgement of delivery in good condition.
- The renter is obliged to obtain sufficient insurance coverage for the rental property against all risks for which the renter or third parties are liable to BERNHARD at his own expense.
- The renter is obliged to notify any damage to or loss of rental property during the rental period to BERNHARD without delay.
- The renter shall bear the full risk of damage or loss of the rental property for the duration of the rental period. This provision also applies, in particular, if the event ends earlier than scheduled. In such case, the renter has to store the rental property in a safe place and protect it from loss, damage, theft, etc., until the end of the rental period.
- Missing parts of the rental property – e.g. headsets, etc. – shall be recovered by the renter from the conference participants at his own expense. Parts of the equipment not returned to BERNHARD within 5 days after the end of the rental period shall be charged to the renter as specified below.
- In the event of total loss of or substantial damage to the rental property or parts thereof, BERNHARD are entitled to demand compensation for the value lost from the renter; in the event of minor damage, BERNHARD are entitled to demand either the costs of repair or adequate compensation for loss of value.
- If BERNHARD demand full compensation for the value lost, the title to the rental property shall pass to the renter only after all claims arising from the rental and service agreement have been satisfied and the demand for full compensation has been met (retention of title). Until such time rental and service fees are due to BERNHARD.
If the rental and service agreement is concluded for a specified period of time, regular termination of the agreement prior to the end of the agreed contract term is excluded.
- If the rental and service agreement is concluded for an indefinite period of time, each party to the agreement has the right to terminate the agreement subject to a two-week period of notice as of the end of the month, unless the renter has waived his right to terminate the agreement prior to a specified date.
XII. Early Termination
BERNHARD have the right to terminate the rental and service agreement prior to the date provided for in the agreement, if the renter is in arrears with some or all of the payments due under the rental and service agreements for ten days despite reminder, makes detrimental use of the rental property, or violates any other provision of the rental and service agreement.
- In the event of early termination of the rental and service agreement, the entire rent and the entire service compensation are due to BERNHARD up to the point in time at which the renter could have terminated the rental and service agreement; expenses saved are to be deducted from the payments to be made.
- BERNHARD only give a warranty for characteristics of the rental property and the service facilities that have been pledged explicitly and in writing. BERNHARD give no warranty for technical defects and, in particular, no warranty for a specific return; thus, compensation for damages and avoidance on the ground of error are excluded.
- As regards deficiencies and losses, it is agreed that the renter has to examine the rental property and report any deficiencies immediately according to Section 377 of the Commercial Code, with the deadline for reporting a deficiency being reduced to 7 days by mutual consent. However, reporting a deficiency does not entitle the renter to retain amounts payable.
- If BERNHARD are under a warranty obligation, deficient parts of the rental property shall be either repaired or exchanged, according to BERNHARD’s choice, within a reasonable period of time. Rental reduction, avoidance or adjustment of the contract on grounds of error, claims for damages or recission of the contract by the renter are excluded. The renter has to support BERNHARD in the elimination of deficiencies and the associated service provision; failure to do so shall make the renter’s claims null and void.
- If BERNHARD fail to eliminate deficiencies, despite a justified complaint by the renter and a reasonable period of grace set in writing, the renter has the right to withdraw from the contract or to demand an appropriate reduction of the rent until such deficiencies are eliminated. If the deficiencies are insignificant, the renter does not have the right to either withdraw from the contract or demand a reduction of the rent payable.
Any liability on the part of BERNHARD, if at all provided for under these Terms and Conditions, shall be limited to grossly negligent or intentional losses and, in any case, to the value of the rental property, and shall not be higher than EUR 200,000.00. Any claims by the renter to compensation for consequential damage, purely pecuniary losses, loss of profit and third-party losses, even though BERNHARD may be liable for such losses, are excluded under all circumstances.
- BERNHARD’s liability for losses suffered by the client due to offences committed by third parties and losses caused through actions performed by BERNHARD – although not included in the scope of the contract and not paid for separately – upon the explicit request of the client or a person acting within the client’s sphere of influence (e.g. transmission or modification of data) is also explicitly excluded.
- In any case, claims for damages have to be enforced through court action within one year of the occurrence of the loss, as they will otherwise be excluded.
XV. Exclusion of Set-off / Assignment
Any set-off of the renter’s claims against claims by BERNHARD shall be excluded.
- The renter is not entitled to assign his claims against BERNHARD to third parties or to dispose of such claims for the benefit of third parties; claims thus assigned or disposed of shall have no legal force.
The deposit serves as a security for all obligations of the renter arising from or in the context of the Rental and Service Agreement, including interest, fees, losses and costs. In the absence of any claims by BERNHARD, the deposit is to be returned without interest to the renter after return of the rental property.
XVII. Restrictions on Title
In the event of any restriction on title imposed by public authorities or courts (attachment, bailment, seizure), the renter is obliged to notify the owner of the property immediately and in writing. The renter shall bear all costs of court or out-of-court action required to avert or remove such restriction.
All statutory fees payable in connection with the contract shall be at the renter’s expense, who shall indemnify BERNHARD against such fees. This also applies to stamp duty and other fees payable on legal transactions.
XIX. Concluding Clauses
If individual provisions of these Terms and Conditions are or become ineffective / void, this fact shall have no effect on the validity of the remainder of the provisions. The ineffective / void provisions shall be replaced by those which serve the economic purpose of the ineffective /void provisions as closely as possible.
- Modifications of or amendments to these Terms and Conditions have to be made in writing; this also holds for any arrangement waiving the requirement to make agreements in writing.
- Austrian substantive law shall exclusively apply to these Terms and Conditions, excluding Private International Law and other collision norms (Rome Convention, UN Sales Convention) within the legally permissible limits. The place of performance and the venue for all legal disputes shall be Vienna.