Terms and conditions of the Damage Waiver and Fire/Theft Scheme for damage to or theft of hired goods

Indu-Tools B.V.
Chamber of Commerce registration no. 24383521

The general hire, delivery and payment conditions of Indu-Tools B.V. apply to all offers made to and hire agreements concluded with the hirer, as well as services provided to the hirer by Indu-Tools B.V. (Chamber of Commerce registration no. 24383521, hereinafter referred to as: “Indu-Tools”) and to all work carried out by Indu-Tools and its affiliated companies on behalf of the hirer within the scope thereof. The hirer has received the general hire, delivery and payment conditions (hereinafter referred to as the “GTC“) before or upon conclusion of the hire agreement. In addition, the GTC can be consulted on the Indu-Tools website under Terms and Conditions; https://www.indu-tools.com/termsandconditions/. The GTC can also be downloaded and printed there.

In accordance with the GTC, the hirer shall be liable for damage to the hired good, damage caused by the hired good, and damage in connection with the hired good.

As set out in Article 4.m of the GTC, the hirer can largely buy off these risks under the conditions as set out below.

Through these schemes Indu-Tools aims to offer the hirer an opportunity to partially limit contractual liability. A deductible per hired good continues to apply. At a percentage surcharge on top of the agreed gross hire price, the hirer can partially limit his contractual liability for unexpected damage to, loss or theft of the hired good by means of one or both schemes. Any other (partly) liable parties and/or third parties, including insurers, do not qualify for these schemes. If Indu-Tools and the hirer agree on one of these schemes, these schemes shall take precedence over the GTC in the event of a conflict. In that case, the GTC shall apply additionally.

The cover, exclusions or specific instructions specified in the agreement with respect to the prevention of damage, loss or theft also form part of the schemes below.

In the event of damage, loss or theft, the hirer shall at all times invoke the regulation(s) below in writing, including by email (info@indu-tools.nl), and demonstrate the applicability of the regulation(s) in writing, with legal and persuasive proof.

General terms and conditions for the damage waiver scheme and fire/theft scheme

Article I. Definitions

1. General hire, delivery and payment conditions
   All definitions used in the schemes and used in the GTC shall have the same meaning as assigned to them in the GTC.
2. Hire Price
   The term “Hire Price” shall be understood to mean the term as set out in Article 7b of the GTC. For the sake of completeness, the text of this article has been included in italics below: “The weekly prices stated in catalogues, on the website or otherwise are based on a minimum hire period of one (1) week. After this first week, the price will be based on the daily price, being 1/5 of the weekly price. Please note: one (1) week = five (5) consecutive working days.Goods with an hour counter are hired out with a maximum of 50 hours of use per week. If registration of the hour counter shows that the hirer has used these goods for more than 50 hours of use per week, a surcharge will apply. The continuous rate for compressors is two (2) times the weekly rate and for aggregates one and a half (1.5) times the weekly rate.For hire periods exceeding four weeks, a separate price may be offered and agreed upon on request, at Indu-Tools’ discretion. Please note: The stated prices are, if applicable, exclusive of surcharges for damage waiver, fire and theft schemes.”
   
3. Material Damage
   Material Damage shall be understood to mean damage that can be directly expressed in monetary terms, i.e. the current market value of and damage to the hired goods and the costs directly related to the damage of (emergency) repair, expert appraisal, storage, transport, research, repatriation, salvage and judicial and extrajudicial costs and loss of hire income, etc. Damage resulting from grief, pain or loss of enjoyment of life is explicitly not included and has been excluded from these schemes.
4. Current Market Value
   Current Market Value shall be understood to mean the original list price, from which the straight-line depreciations over 120 months (taking into account a residual value of 10%) are deducted from the original list price. The Current Market Value is also calculated on the basis of the Current Market Value of the hired good as a whole.
5. Insufficient Care, Careless Use, Act Or Omission
   Insufficient Care, Careless Use, Act Or Omission shall include, but is not limited to: operation by non-qualified or not (legally) certified/authorised persons; late replenishment or incorrect use of fuel, oil, lubricants, antifreeze; incorrect or non-use of stamps; overuse or overloading; incorrect use of or failure to use stamps, overburdening or overloading; transport of trailers and/or other equipment that can be connected to a motor vehicle, by a driver who does not have the correct licence category for a vehicle combination; carrying out repairs; switching off (safety) equipment and/or other systems or sub-systems; tilting due to excessive inclination or uneven or otherwise unsuitable terrain or surface; acting contrary to the instructions of Indu-Tools and/or the manufacturer and/or the manual supplied and/or instructions specifically printed under or in the agreement; incorrect, unsafe or unsuitable transport, vertical transport; causing “overhead” damage (damage above or with point of contact above 1.90 metres, measured from terrain or road surface) during transport and/or traffic participation; failing to take adequate measures to prevent concrete, cement, paint, dirt or spray residues remaining behind; failing to take adequate measures to prevent damage in the event of a forecast storm, thunderstorm or hail, frost or (other) extreme weather conditions (such as a code orange or code red issued by the Royal Netherlands Meteorological Institute [KNMI]); failure to comply or to demonstrably comply with the specific and written instructions for use and/or prevention set out under or in the agreement or the associated user manual; acting in violation of a statutory obligation or municipal bylaw.

Article II. Applicability

1. Duration of schemes
   The schemes shall only apply during the agreed hire period; the hirer may invoke these schemes only during this period. Invoking these schemes shall only be possible, without prejudice to restrictions of cover, exclusions or other conditions in the GTC, in the event that:- a valid hire agreement has been entered into before commencement of the hire period, including these schemes, and
   – the hirer has demonstrably and timely fulfilled all obligations arising from the agreement, the GTC and these schemes.
2. Type of damage
   These schemes shall apply to Material Damage calculated on the basis of the Hire Price. With respect to the costs directly related to the damage, these are covered by the scheme to the extent the emergency repair, storage or transport is based on a written instruction from the hirer. Loss of hire income is also covered by these schemes; the loss of hire income is calculated on the basis of the Hire Price.As for recovery with respect to the costs of damage assessment, these costs shall only be limited if the damage assessment is carried out by the Technical Service of the hirer. Art. III a. further regulates damage assessment.
3. Scope of the schemes
   The schemes shall only apply to, and therefore cover shall only be provided for, loss events occurring within the Netherlands, Belgium and Germany.

Article III. Scheme cover

1. Method of damage assessment
   The technical service of Indu-Tools assesses the damage. The hirer shall be deemed to have agreed to the damage assessment by the technical service, unless the hirer lodges a substantiated objection within five (5) working days after receipt of the statement or indication of damage provided by Indu-Tools or, if these are not provided, within five (5) working days after receipt of the damage invoice. If the hirer requires a second assessment, the hirer must appoint a loss assessor within five (5) working days from the time the hirer became aware of the loss event, and the hirer shall inform Indu-Tools thereof. If the hirer fails to do so, Indu-Tools may assume that no second assessment has been carried out and consider the damage assessment to be final.
2. Obligations in the event of damage
   Once the hirer has become aware of a loss event or could reasonably have been aware of it, he shall be obliged to:
   – notify Indu-Tools of the event with immediate effect;
   – provide all possible cooperation in the settlement of the damage, including following Indu-Tools’ instructions, consulting with Indu-Tools, providing the requested information and documents (including a fully completed and signed claim form with a description of the facts of the damage) and refrain from any action that may harm Indu-Tools’ interests;
   – in the event of theft or any other crime resulting in damage, immediately report this to the police and subsequently provide Indu-Tools with a copy of the report.
3. General exclusions for both schemes
   If one or more of the obligations of Art. III.b. of these schemes have not been met or not fully been met, the hirer may not invoke this scheme.In addition, these schemes do not apply if the damage, loss and/or theft has arisen from, has been caused by, or the likelihood thereof has been increased by, or has occurred in the event of:
   – terrorism, armed conflict, civil war, pandemic, insurrection, strike, domestic riots and strife, insurrection or mutiny, earthquake, flood, volcanic eruption or atomic nuclear reactions irrespective of how they arose;
   – intent or recklessness on the part of the hirer and/or his personnel and/or agents;
   – Insufficient Care and/or Careless Use, by Acts or Omissions of the hirer and/or his personnel and/or agents;Moreover, these schemes do not apply:
   – if with respect to the loss event the hirer can derive rights from any form of insurance or other provision or could have derived rights from it if the damage waiver and/or fire/theft scheme(s) did not exist.
   – if the hirer has subleased the hired good or has otherwise made it available to third parties (employees of the hirer are explicitly not regarded as third parties) without first informing Indu-Tools and obtaining written permission from Indu-Tools;
   – if the hirer takes the hired goods and/or provided tools outside the borders of the countries to which these regulations apply as set out in Article 2.c. of these schemes, without the express written consent of Indu-Tools;
   – if the hirer uses or has used the hired goods (or has caused others to use or have others use them) for purposes other than those for which the hired goods were originally intended;
   – if a specific exclusion stated in the agreement or the GTC applies;
   – if the hirer has not demonstrably complied with preventive measures and other instructions to prevent damage or theft as set out in the agreement or the GTC, or in the manual of the hired good.

Art. IV Other rights of Indu-Tools

1. Ownership of the hired good
   All hired goods shall remain the undisputed property of Indu-Tools. Any application of the damage waiver scheme or the fire/theft scheme shall not affect this. Invoicing and/or payment of the damage or a deductible expressly does not imply transfer of ownership to the hirer.
2. Inclusion of the schemes as a condition
   Indu-Tools shall have the right make participation in the damage waiver scheme and/or fire/theft scheme a condition for entering into a hire agreement. Indu-Tools reserves the right to refuse inclusion of the damage waiver scheme and/or fire/theft scheme at any time and without stating reasons.
3. Compensation and claims of the hirer
   The schemes, subject to the conditions set out in these schemes, limit the hirer’s liability, but shall never give rise to any payment or the granting of any compensation or reimbursement of the hire price to the hirer.

Specific conditions for the damage waiver scheme

Article 1. Scope of the damage waiver scheme
The damage waiver scheme may be invoked provided that the conditions stated above and below have been met in cases of Material Damage.

Article 2. Items to which the scheme may apply
This specific scheme applies to those items for which this has been indicated by means of a “yes” in the description of the items in the Damage Waiver Scheme (DWS) column in the agreement/assignment confirmation.

Article 3. Specific exclusions
This damage waiver scheme shall not apply:

1. if the damage is the result of or has been caused by fire, embezzlement, (partial) theft, burglary, loss, disappearance, quarantine or seizure by a government institution;
2. with respect to costs for the cleaning of hired goods and/or damage caused by pollution
3. if there is damage to the tyres of hired goods;
4. if a general exclusion applies (see Art. 3.c and 3.d GTC).

Article 4. Damage waiver scheme deductible
A deductible per event and per hired good applies to the damage waiver scheme. The agreement states for each hired good whether or not the damage waiver scheme applies, as set out in Article 2 of this specific scheme. The table below shows the deductible for the damage waiver scheme based on the object value.

Specific conditions for fire/theft scheme

Article 1. Scope of the fire/theft scheme
The fire/theft scheme may be invoked, provided that the conditions stated above and below are met, in cases of sudden and unforeseen Material Damage resulting from fire, burglary or theft after forced entry.

Article 2. Items to which the scheme may apply
This specific scheme applies to those items for which this has been indicated by means of a “yes” in the description of the items in the Fire/Theft Scheme (FTS) column in the agreement/assignment confirmation.

Article 3. Specific exclusions
The fire/theft scheme does not apply if:
– the damage is caused by or is the result of embezzlement, loss, inventory difference, disappearance, quarantine or seizure by a government institution;
– a general exclusion applies (see VII and VIII of the schemes);
– the additional conditions have not been met (see Art. 5. Specific conditions for fire/theft scheme).

Article 4. Additional conditions for theft cover
The theft scheme may only be invoked if there is cover and none of the aforementioned general and specific exclusions apply and if all of the following conditions and circumstances have been demonstrably met:

1. outside working hours, the hired good is stored or placed in an enclosed space or, if this is physically impossible, on a secured or fenced outside area or construction site;
2. where possible, machines shall be secured with a lock and may only be placed on a semi-trailer or trailer during transport. The locks must be used visibly; if the hirer does not return all the keys handed over at the time, it shall be assumed that the hirer has not complied with this requirement;
3. that the building, container, fence or shed has been entered forcibly. It shall only be assumed that there is forced entry if there are clearly visible external signs of forced entry. An additional condition applies to hand tools, (lamppost) aggregates, compressors and dismantled scaffolding and accessories. Namely, that the recovery of Indu-Tools shall only be limited in the case of theft after forced entry of a properly locked building or a securely locked part of a building, where a building is explicitly not understood to mean a container, work or a management shed;
4. trailers and other machines with drawbar that are suitable for transport behind a motor vehicle must, if they are not placed in an enclosed building but on a demarcated plot, at least be chained to immovable property and furthermore secured with a drawbar lock.

Article 5. Fire/theft scheme deductible
A deductible per event and per hired good applies to the fire/theft scheme. The agreement states for each hired good whether or not the fire/theft scheme applies, as set out in Article 2 of this specific scheme. The table below shows the deductible for the damage waiver scheme based on the object value.

© Indu-Tools B.V. version July 2020