Article 1. Definitions; applicability
1.1 In these General Conditions the terms listed below have the following meaning:
a. Landlord: Forkliftcenter B.V.
b. Tenant: the Landlord’s other party.
c. Leased Object: the object that the Tenant leases from the Landlord.
d. Lease: the agreement regarding the leasing/letting of the Leased Object.
1.2 These General Conditions apply to all offers, acceptances, agreements and other acts that relate to the making available of a Leased Object and the provision of services by the Landlord in that context.
1.3 Departures and/or additions to these General Conditions/the Lease will be valid only if agreed on in writing between the Landlord and the Tenant, and will furthermore apply only to the General Conditions/Lease in which the departing provisions are recorded. The applicability of any other general conditions or clauses is excluded, except insofar as such general conditions or clauses have been expressly accepted in writing by the Landlord.
1.4 These General Conditions also apply to other Leases, including follow-up or supplemental agreements to which the Tenant and the Landlord or their legal successor(s) is/are parties.
Article 2. Offers
2.1 Unless otherwise expressly stated, all offers made by the Landlord, in any form whatsoever, are without obligation. The Landlord may revoke an offer without obligation made by the Landlord, also within ten (10) working days after the Landlord received the acceptance by the Tenant.
2.2 Statements and specifications of the Landlord regarding size, capacity, performance or results are approximations only.
2.3 Insofar as the Tenant provides any performance and/or makes any preparations for that purpose, in the apparent expectation or assumption that a Lease will be or has been concluded, the Tenant does so for its own account and risk.
2.4 Any inaccuracies or alleged inaccuracies in the order confirmation must be notified to the Landlord in writing on pain of forfeiture, within two working days of the date of the confirmation by the Tenant.
Article 3. Rent and security
3.1 All prices specified by the Landlord are exclusive of VAT. The VAT due will be charged separately. Insofar as any costs are incurred by the Landlord in making the Leased Object available, such as transport costs, the Landlord may also charge those costs to the Tenant separately.
3.2 If payment by the Tenant of a deposit has been agreed on, the Landlord may suspend the making available of the Leased Object until the deposit has been paid in full. The deposit will be repaid to the Tenant at the end of the Lease, without payment of any interest and while setting off any claim that the Landlord has against the Tenant on any ground whatsoever.
3.3 If in the Landlord’s reasonable opinion the Tenant’s financial position so necessitates, the Tenant will be required at the Landlord’s first request immediately to provide (whether or not additional) security to the Landlord’s satisfaction for the fulfilment of the Tenant’s obligations under the Lease. If the Tenant fails to provide adequate security in a timely manner, the Landlord will have the right to terminate the Lease with immediate effect, without being required to pay any damages.
Article 4. Payment
4.1 The Tenant must pay the Landlord the amounts that it owes it in a timely manner, either in cash at the Landlord or by means of transfer to a bank or giro account to be specified by the Landlord. A payment by giro transfer will be regarded as having been made in a timely manner only if the amount due has been credited to the bank or giro account referred to in the preceding sentence no later than on the date agreed on for that purpose.
4.2 If and insofar as the rent (or any part of the rent) has not been received on the agreed date at the latest, the Landlord will have the right, without prejudice to its other legal or contractual rights and without any notice of default being required:
a. to charge the Tenant interest at 1.5% (one and a half percent) per month on the rent or the unpaid part of the rent as from that date, whereby part of a month will be regarded as a full month; and
b. to suspend the performance of the agreement in respect of which the Tenant is in default of payment, and any other agreements with the Tenant.
4.3 If the Tenant fails also after a written reminder to pay the entire amount that it owes the Landlord within the further term set for that purpose, the Landlord will furthermore have the right to dissolve the agreement with immediate effect.
4.4 The Landlord may furthermore charge the Tenant all the costs that it has incurred in relation to the Tenant both in and out of court in order to protect its rights. The out-of-court costs of collection will amount for each action taken by the Landlord against the Tenant to a minimum of EUR 1,250 (one thousand two hundred and fifty euros).
4.5 A payment by the Tenant will first be deducted from any interest due, then from costs incurred by the Landlord in connection with the Tenant’s failure under the Lease, and only then from rent instalments due, whereby the instalment that first fell due will take precedence over the instalment that most recently fell due. All of this will apply except insofar as the Landlord provides otherwise.
4.6 Unless expressly otherwise agreed in writing, the Tenant will not have the right to apply any discount, deduction or setoff to a payment. The Tenant will furthermore not have the right to suspend its payment obligation in the event of any failure on the part of the Landlord.
Article 5. Making available and acceptance of the Leased Object
5.1 Unless otherwise expressly agreed in writing, the Landlord will make the Leased Object available to the Tenant on the date agreed on for that purpose, at the construction site, storage space or warehouse of the Landlord specified by the Landlord. The Landlord will not be in default towards the Tenant in making the Leased Object available until the Tenant has set it a further reasonable term in writing at the end of the original term within which to make the Leased Object available and the Landlord has also allowed that term to pass. All the circumstances must be taken into account in determining that reasonable term.
5.2 If the Tenant fails to take delivery of the Leased Object at the agreed time, for which the Landlord is not to blame, the Tenant will be in default upon the mere occurrence of that event. Without prejudice to its right to reimbursement of all the costs and loss related to the first failure to take delivery, the Landlord will have the right to dissolve the Lease with immediate effect, without any judicial intervention, if the Tenant fails to take delivery of the Leased Object before or on the second date of which the Landlord has given the Tenant notice.
5.3 Upon taking delivery of the Leased Object, or in any event immediately thereafter, the Tenant must carefully inspect the soundness, integrity and completeness of the Leased Object. If the Tenant establishes any defects or deficiencies in that inspection, it must report them to the Landlord in writing no later than three (3) working days after discovery. Any defects that the Tenant has not discovered in time because it failed to carefully inspect the soundness, integrity and completeness of the Leased Object upon or in any event immediately after delivery, or any defects that the Tenant failed to report to the Landlord in writing in a timely manner, cannot be invoked as a ground for reduction of the rent, dissolution of the Lease or payment of damages.
Article 6. Use
6.1 The Tenant must use the Leased Object with all due care, which means, among other things: that:
a. the Tenant may use the Leased Object only for the purpose for which it was leased and within that context is otherwise suitable according to its nature;
b. the Tenant must use the Leased Object in accordance with the instructions given to it by the Landlord by means of instruction booklets or otherwise;
c. the Tenant must continuously inspect the proper functioning of the Leased Object and, except insofar as otherwise agreed, must perform the day-to-day maintenance required in a timely manner in order to continue the proper functioning, all of this in accordance with the manufacturer’s specifications, if available;
d. the Tenant must take all reasonable measures to avoid damage to and/or loss of the Leased Object; and
e. the Tenant may relocate or move the Leased Object from the location where it is intended to be used under the Lease only with the Landlord’s prior consent.
6.2 If a permit is required for the use of the Leased Object, the Tenant must ensure that that permit is obtained in a timely manner, unless otherwise expressly agreed.
6.3 Without the Landlord’s prior written consent the Tenant is prohibited from letting, subletting or granting the use of the Leased Object to third parties, and from otherwise making it available to them.
6.4 If the Landlord wishes to have the Leased Object at its disposal for inspection, maintenance or repairs, the Tenant must fully cooperate after a request to that effect, which cooperation also means that the Tenant, on request, must make a suitable and safe workplace available in accordance with the applicable working conditions and environmental regulations, if necessary also outside the working hours that customarily apply at the Tenant.
Article 7. Attachment; third-party claims
7.1 If an attachment is levied (or is about to be levied) on the Leased Object, or if third parties exercise any claims in respect of the Leased Object, the Tenant will be required immediately to inform the Landlord accordingly. The Tenant must then act in accordance with the instructions given by the Landlord. The Landlord will have the right to make an alternative equivalent Leased Object available to the Tenant.
7.2 If an attachment is levied on a Leased Object belonging to the Landlord also against the Tenant and such attachment gives rise to costs for the Landlord, the Tenant will be required to reimburse all the costs arising from the attachment to the Landlord.
Article 8. Defects
8.1 Without prejudice to the provisions of Article 5.3, if the Tenant establishes any defects, deficiencies or damage of or to the Leased Object during the Lease, the Tenant must notify the Landlord accordingly in writing immediately or in any event within three (3) working days. Any defects, deficiencies or damage that has not been reported in writing in a timely manner cannot be invoked as a ground on which to reduce the rent, dissolve the Lease or claim damages from the Landlord.
8.2 After discovering any defect or deficiency of or damage to the Leased Object, the Tenant may continue its use only after consultation with the Landlord. If the Tenant fails to consult the Landlord or to do so in a timely manner, the damage resulting from continued use will be or will remain payable by the Tenant.
8.3 After the Tenant has reported any defect or deficiency of or damage to the Leased Object and it has been established that repair aimed at the further use or preservation of the Leased Object is required, the Landlord will eliminate the defect, deficiency or damage – taking into account the nature of the defect, deficiency or damage and the available manpower and available material – as soon as possible by means of repairs. At the Landlord’s request the Tenant must immediately make the Leased Object available to the Landlord at a place to be designated by it. Without the Landlord’s prior written consent the Tenant may in no event have repairs performed by a third party. The Landlord may provide the Tenant whether or not temporarily with an alternative equivalent Leased Object. The costs of the repair will be payable by the Landlord, except if and insofar as the Landlord proves that the Tenant is to blame for the defect, deficiency or damage. The Tenant will in any event be to blame for (i) any use of the Leased Object without due care or (ii) actions or omissions by third parties for which the Landlord is not responsible by law.
8.4 If the Landlord cannot use the Leased Object for more than one (1) working day due to a defect or deficiency of or damage to the Leased Object for which it is not to blame in whole or in part, it will be entitled to a reduction of the rent in the sense that it will not owe rent for the days on which it cannot make any use whatsoever of the Leased Object after the aforesaid term.
8.5 If (i) the Landlord, also after a written demand to that effect from the Tenant, whereby a reasonable term for repairs is set – taking into account the nature of the defect, deficiency or damage, the available manpower and the available material – has not succeeded in repairing the defect, deficiency or damage; (ii) in light of the nature of the defect, deficiency or damage the Tenant cannot reasonably be required to make further use of the Leased Object; and (iii) the Landlord has not provided any alternative equivalent Leased Object, the Tenant will have the right to dissolve the lease. However, the Tenant will not have the right to dissolve the Lease as long as it has not provided sufficient security in the Landlord’s opinion for the payment of the costs of repair, if the Landlord has so requested pursuant to the provisions of Article 8.3, final sentence.
Article 9. Loss or destruction of the Leased Object
9.1 The Tenant must notify the Landlord of any entire or partial loss (meaning loss of control over) or any partial destruction in a physical sense of the Leased Object immediately after its discovery and must furthermore provide the Landlord with all the cooperation that it requires in connection with the loss or destruction. Destruction will also be deemed to have occurred if in the Landlord’s opinion the costs of repair of or damage to the Leased Object exceed the fair rental value of the Leased Object at that time.
9.2 Unless the Landlord makes an alternative equivalent Leased Object available after the report of the loss or destruction of the Leased Object, the Lease will end in the event of loss or destruction of the Leased Object. If, however, in the event of partial loss or partial destruction of the Leased Object, the Tenant wishes to continue to use the remaining part of the Leased Object, the Lease will be continued at a reduced rent. Unless the parties agree otherwise, the rent will be reduced in the same ratio as that by which the fair rental value of the entire Leased Object has decreased as a result of the partial loss or destruction.
9.3 If the loss or destruction is due to a circumstance for which the Tenant is to blame by law – such as use of the Leased Object without due care – the loss consequently incurred by the Landlord will be payable by the Tenant. In the event of destruction that loss will be calculated on the basis of the replacement value.
Article 10. Return after the end of the lease
10.1 At the end of the Lease the Tenant must notify the Landlord that the Leased Object is again available to the Landlord. After that notification the Landlord must ensure that the Leased Object is collected at the Tenant within a reasonable term. During the period between the notification and the collection of the Leased Object, the Tenant will remain responsible for the care of the Leased Object.
10.2 Unless otherwise expressly agreed in writing, the Tenant must return the Leased Object to the Landlord cleaned and – apart from normal wear and tear of the Leased Object caused by use of the Leased Object in a manner that befits a diligent Tenant – in its original condition, by making the Leased Object available to the Landlord in the place where the Landlord made the Leased Object available to the Tenant in the performance of the Lease. The Tenant may not make the Leased Object available any later than on the day on which the Lease ends upon the expiry of the agreed lease period or otherwise.
10.3 The Tenant must furthermore return to the Landlord, in the manner and at the times described in Article 10.1, any parts of the Leased Object that may have been released during the lease period, for instance as a result of maintenance performed by the Tenant.
10.4 Anything attached to the Leased Object by or at the instructions of the Tenant will become the Landlord’s property and the Landlord will not owe the Tenant any compensation in that context, without prejudice to the Landlord’s right to remove at the Tenant’s expense anything that the Tenant has installed or caused to be installed.
10.5 If the Tenant fails to make the Leased Object available at the time and place that apply to it, the Tenant will be in default without any notice of default or demand from the Landlord being required. The Tenant will then forfeit a penalty, unless otherwise agreed, equal to three (3) percent of the price (excluding VAT) of the purchase of the same or a similar Leased Object, for each day on which the Tenant fails to fulfil the obligation to make the Leased Object available at the time and place that apply to it. In addition to the penalty the Landlord will be entitled to full reimbursement of all the loss incurred by the Landlord as a result of the Tenant’s failure to fulfil its obligation to make the Leased Object available at the time and place that apply to it. The Landlord will in that case furthermore be entitled, and will be expressly authorised by the Tenant, to gain access to the place where the Leased Object is located in order to take possession of the Leased Object. The costs involved will also be payable by the Tenant.
10.6 If it becomes apparent after the Leased Object has been returned that it is damaged or has not been cleaned, the Tenant will be liable for the loss and costs consequently incurred by the Landlord. This last sentence will apply unless the Tenant proves that the damage or the unclean condition of the Leased Object is due to circumstances for which it is not to blame.
10.7 The Tenant will give the Landlord all the cooperation required to enable the latter to gain possession of the Leased Object.
Article 11. Dissolution of the lease
11.1 The Landlord will have the right to dissolve the Lease with immediate effect, without any judicial intervention or notice of default being required, if:
a. the Tenant fails to fulfil one or more of its obligations under the Lease or these General Conditions;
b. a petition for a suspension of payment or a petition in bankruptcy has been filed in respect of the Tenant;
c. an attachment has been levied on all or any part of the Tenant’s assets;
d. all or most of the Tenant’s business is ceased, discontinued or liquidated;
e. the Tenant vacates or apparently permanently departs from all or most of its premises or place of business without prior written notification; or
f. any other circumstance occurs that may give rise to reasonable doubt on the part of the Landlord regarding the fulfilment by the Tenant of its obligations under the Lease.
11.2 The Landlord will not be liable for any damage as a result of dissolution of the Lease as referred to in Article 11.1.
11.3 All the costs arising from dissolution as referred to in Article 11.1 will be payable by the Tenant. Upon dissolution all the Landlord’s existing claims will fall due immediately.
Article 12. Landlord’s liability for damage
12.1 Without prejudice to the other provisions of these General Conditions, it applies to the Landlord’s liability for damage towards the Tenant on the grounds of or in connection with a Lease or Leases between the Landlord and Tenant that:
a. the Landlord cannot be held liable for loss of income and costs related to interruption, standstill and/or re-initiation of a business or work, or part of a business or work;
b. the Landlord can be held liable for loss other than that referred to in (a) only for a total maximum amount of EUR 25,000 (twenty-five thousand euros). However, any damages payable to the Tenant by the Landlord will in no event exceed the amount for which the Landlord’s liability is covered by insurance in the case in question.
12.2 The limits referred to in (a) and (b) will not apply if the Tenant proves that the loss for which the Tenant holds the Landlord liable is due to intent or gross negligence of directors or equivalent executive officers of the Landlord.
12.3 If an event occurs that gives rise to damage for the Tenant or can reasonably be expected to give rise to damage, for which the Landlord may be held liable, the Tenant must notify the Landlord of that event in writing as soon as possible but in any event within ten (10) days after that event. If the Tenant fails to give timely written notification, its entitlement to damages on the grounds of the event in question will lapse.
12.4 All claims for payment of damage of the Tenant towards the Landlord will lapse twelve months after the event that gave rise to the loss, except insofar as loss is involved that was reported to the Landlord in a timely manner in accordance with the provisions of the preceding paragraph.
12.5 The Tenant indemnifies the Landlord against any and all third-party claims related to Leased Object let to the Tenant by the Landlord, except insofar as the Tenant proves that such claims relate to loss for which the Landlord would be liable towards the Tenant, with due observance of the provisions of paragraphs 12.1 and 12.2, if the Tenant had held the Landlord liable for that loss. This indemnification also applies to the costs incurred by the Landlord in connection with a third-party claim.
Article 13. Insurance
13.1 If the Landlord has made the Leased Object available together with insurance against damage, destruction and loss, it applies, without prejudice to the other provisions of these General Conditions, that:
a. the Tenant must care for the Leased Object in a manner befitting a diligent Tenant;
b. the Tenant must immediately report any damage to or destruction or loss of the Leased Object to the Landlord in writing; and
c. the Tenant will be obligated to reimburse to the Landlord the loss that incurred by the Landlord as a result of damage to or destruction and/or loss of the Leased Object, if and insofar as the insurance taken out by the Landlord does not offer any cover, for instance because of the deductible or because the damage to or destruction and/or loss of the Leased Object was caused by gross negligence of the Tenant, because the Tenant failed to report the damage, destruction or loss to the Landlord in a timely manner, or because the insured amount is insufficient to cover all the loss resulting from the damage to or loss of the Leased Object.
Article 14. Joint and several liability
14.1 If the Tenant consists of more than one legal entity or natural person at any time during the Lease, each of those legal entities and/or natural persons will be jointly and severally liable towards the Landlord for the obligations arising from the Lease.
Article 15. Transfer of rights and obligations
15.1 The Tenant may transfer rights or obligations under the Lease to a third party, or have them taken over by a third party, only with the Landlord’s prior written consent. The Landlord may make that consent subject to conditions.
15.2 The Landlord will have the right to transfer ownership of the Leased Object and the rights and obligations under the Lease concluded with the Tenant to a third party. The Tenant expressly agrees beforehand that the rights and obligations under the Lease and these General Conditions and the ownership of the Leased Object will be transferred to a third party
Article 16. Force majeure
16.1 If it is established during the performance of the Lease that it cannot be performed as a result of circumstances unknown to the Landlord or as a result of an event of force majeure, the Landlord will have the right to demand that the Lease is amended in such a way that performance is possible, unless performance will in no event be possible due to the event of force majeure. If the Landlord is prevented by an event of force majeure from performing the lease, the Landlord will have the right to suspend the performance of the Lease and consequently cannot be held to any delivery term. The Tenant cannot exercise any right to reimbursement of loss, costs or interest on that ground.
16.2 Events of force majeure on the part of the Landlord are circumstances of a factual, legal or other nature that, whether or not foreseeably, through no fault of its own, prevent the timely performance of the Lease or render it extremely onerous. Such circumstances include: strikes, lightning strikes, work-to-rule actions and lock-outs, plant occupations, interruptions in production as a result of machine malfunctions, breakdowns in the supply of power and water, or fire, etc., import, export and production bans and other government measures, transport restrictions, and failure on the part of suppliers and auxiliary persons, all of this insofar as the Landlord cannot be blamed for those circumstances. War, threat of war, mobilisation, riots, martial law, fire, accidents or sickness of staff and operational breakdowns will also be regarded as events of force majeure.
Article 17. Governing law and competent court
17.1 This Lease is governed exclusively by Dutch law. The Vienna Sales Convention does not apply.
17.2 Any and all disputes that may arise regarding or in connection with the Lease, including disputes regarding the existence and validity of the Lease, will be settled by the competent court in the district of The Hague, the Netherlands. [However, the parties may nevertheless submit a dispute that has arisen to an arbitral tribunal in consultation, which arbitral tribunal will in that case be appointed in accordance with the rules recorded in the Articles of the Court of Arbitration for the Metal Industry and Trade in The Hague, which will pass its award with due observance of the Articles of that Court.]