Conditions of lease
Profil Containerservice GmbH, Hamburg
(Commercial Register No. 48735, Local Court Hamburg)
Conditions of lease
- Version: February 2019 -
Note: The ADSp (German Freight Forwarders' Standard Terms and Conditions) apply exclusively to freight forwarding transactions!
To the extent not otherwise agreed to in the Lease, the following terms apply to the lease of containers as well as other items subject to the Lease (referred to hereinafter as Leased Property) by Profil Containerservice GmbH.
1. Lease; Term of the Lease; Termination
1.1 The Lease is binding upon the signature of both parties on the basis of these terms. We hereby object to the application of any General Terms and Conditions of the Lessee. The performance of the contract shall not mean our consent to the Lessee`s General Terms and Conditions.
1.2 The term of the Lease is agreed in the Lease.
1.3 This is without prejudice to the right to terminate this Lease without notice for cause.
2.1 The Lessee may not permit a third party to use/posses, and in particular to sub-lease, the Leased Property without the consent of PROFIL CONTAINERSERVICE GMBH.
2.2 In cases where the use of the Leased Property by a third party/a sublease has been authorized, the Lessee is required to assign its claims against such third party to PROFIL CONTAINERSERVICE GMBH upon request. The Lessee is required, at its own cost and expense, to hold PROFIL CONTAINERSERVICE GMBH harmless from the claims of third parties, in particular any potential liens and rights of retention.
2.3 The Lessee is liable for any culpable acts attributable to a third party as if he had acted himself.
3. Lease Payments; Default
3.1 Monthly lease payments are due in advance on the third business day of each month, and in the case of lease terms shorter than a month are due in full upon the commencement of the lease term and prior to handover.
3.2 In the case of a default in lease payments, in whole or in significant part, for two subsequent months the Lessor may, at its option, terminate the Lease without notice and demand the immediate return of the Leased Property or may require payment in full of all remaining lease payment for the term of the Lease. In cases where the Lease is terminated, lease payments must be made through and until the return of the Leased Property. The foregoing is without prejudice to any additional damages or termination rights to which PROFIL CONTAINERSERVICE GMBH may otherwise be entitled.
4.1 The Leased Property will be made available to the Lessee for takeover at the PROFIL CONTAINERSERVICE GMBH Depot at PROFIL CONTAINERSERVICE GMBH's registered office. The Lessee bears the costs and risk of loss in the case the Leased Property is made available at another agree-upon location. Liability related to making the Leased Property available in a timely manner is limited to cases of PROFIL CONTAINERSERVICE GMBH own fault (where intentional or resulting from gross negligence).
4.2 The Leased Property will be made available to the Lessee clean and in proper condition.
4.3 It is the Lessee's obligation to inspect the Leased Property prior to its acceptance as to its proper condition and to satisfy itself as to the Leased Property's suitability for its intended purpose. Written notice of any defects must be provided immediately, either noted on an interchange or on the confirmation of receipt provided by the freight forwarder for the Lessee’s acknowledgement of receipt. Later complaints as to condition or suitability will not be accepted.
5. Maintenance of the Leased Property; Maintenance and Repair by the Lessee
5.1 The Lessee bears the sole responsibility for the Leased Property for the entire term of the Lease until the return of the Leased Property to PROFIL CONTAINERSERVICE GMBH. The Lessee is required to familiarize itself with existing regulations and to comply therewith. No warranty is given as to the suitability of materials used in the Leased Property for certain freight.
5.2 During the term of the Lease, PROFIL CONTAINERSERVICE GMBH has no obligation to make any modifications to the Leased Property due to changes in any public law regulations. However, in cases where the Leased Property was leased for a specific contractually agreed-upon purpose, PROFIL CONTAINERSERVICE GMBH is authorized to substitute the Leased Property by another Leased Property.
5.3 During the term of the Lease, the Lessee is required to maintain and repair the Leased Property at its own cost and expense. Any lost or damaged accessories are required to be replaced by the Lessee at its own cost and expense. No technical modifications may be made without the written consent of PROFIL CONTAINERSERVICE GMBH. Repairs and maintenance are to be performed by qualified personnel who are required to use only original/genuine parts.
6. Risk of Loss; Liability; Reporting Obligations
6.1 A liability regardless of negligence of PROFIL CONTAINERSERVICE GMBH for initial defects is excluded. In any other case the liability of PROFIL CONTAINERSERVICE GMBH is limited to willful misconduct or gross negligent as well as for negligent violation of life, body or health.
6.2 The Lessee bears the risk of accidental loss and of deterioration of the Leased Property, including threat of war and acts of God, beginning with the commencement of the lease term, however at the latest from takeover of the Leased Property or receipt of the notification that the Leased Property is made available and ready to be picked up until the return of the Leased Property.
6.3 The Lessee is required to handle the Leased Property with the due care of a prudent businessman and to safeguard PROFIL CONTAINERSERVICE GMBH’s interests in any relationships with third parties with the due care and diligence of a prudent businessman. PROFIL CONTAINERSERVICE GMBH is to be notified immediately after becoming aware of any loss of the Leased Property.
6.4 In the case of the loss of the Leased Property, the Lessee is required, at PROFIL CONTAINERSERVICE GMBH’s discretion, to provide an equivalent substitute or to pay monetary damages. The amount of the damages to be paid is based on the value of the Leased Property at the time of its loss according to the provisions of the Lease.
6.5 The Lessee is required, at its own cost and expense, to insure the Leased Property for PROFIL CONTAINERSERVICE GMBH’s benefit against destruction, loss or deterioration. At PROFIL CONTAINERSERVICE GMBH’s request, proof of proper insurance is to be provided by submitting the original insurance policy and the rights under the insurance policy are to be assigned to PROFIL CONTAINERSERVICE GMBH.
6.6 Claims of the Lessee for losses and damage to cargo, as well as for consequential damages, are excluded.
6.7 The Lessee is required to notify PROFIL CONTAINERSERVICE GMBH immediately if a third party claims any rights as to the Leased Property. Where the Lessee fails to provide such notice, it is obligated provide compensation for any resulting damages. To the extent PROFIL CONTAINERSERVICE GMBH was not able to provide remedy due to a failure to provide notice, the Lessee is not authorized to assert any claims against PROFIL CONTAINERSERVICE GMBH and/or to demand compensation.
7. Termination of the Lease; Return
7.1 The Lease is terminated only upon the return of the Leased Property free of defects and in properly maintained condition otherwise upon the return of the Leased Property to such condition. Damage in any form (e. g. resulting from mechanical or chemical actions/effects), in particular internal and external damage, dents, etc. is not considered ordinary wear and tear.
7.2 PROFIL CONTAINERSERVICE GMBH is to be provided notice of the intended return of the Leased Property ten days in advance.
7.3 Following the return of the Leased Property, PROFIL CONTAINERSERVICE GMBH will promptly confirm that it is in proper condition or will have a cost estimate prepared where any damage is noted. In cases where damages are noted, the Lessee will promptly receive an estimate of the costs of returning the Leased Property to its defect-free condition accompanied by a request to authorize the required repairs at its cost and expense. PROFIL CONTAINERSERVICE GMBH has the right to perform the repairs at the Lessee’s expense if the Lessee does not authorize the repairs within one week of receiving the cost estimate. The obligation to make payments under the Lease terminates on the day on which the Leased Property has been returned to its defect-free condition.
7.4 In the event of a total loss with respect to the Leased Property, the term of the Lease ends on the day on which the total loss has been determined by an appraiser and the receipt of compensation by PROFIL CONTAINERSERVICE GMBH for damages in accordance with Section 6.4 of these Conditions of Lease in conjunction with the provisions of the Lease.
8. Final Provisions
8.1 No ancillary verbal agreements have been made with respect to the Lease. Any amendments or additions must be made in writing to be legally effective. The same applies to a waiver of the written form requirement.
8.2 In the event that one or more of the provisions of these Conditions of Lease are invalid, the parties will agree to a comparable provision which approximates the commercial purpose of such invalid provision in a legally permissible manner as close as possible, without affecting the validity of the remaining provisions.
8.3 German material law is applicable to all legal disputes arising under this agreement. If the buyer is a businessman in the meaning of the German Commercial Code or a public corporation the place of jurisdiction is Hamburg (Landgericht Hamburg) or, at PROFIL CONTAINERSERVICE GMBH's option, the Lessee's registered office.