General Terms and
Conditions for Deliveries
and Services

  

General Terms and
Conditions of Purchase for Deliveries and Services

Our Terms and Conditions

General Terms and Conditions for Deliveries and Services 
(As of: July 2014)

1. Validity
1.1 All deliveries, services and offers by RAIL.ONE are subject to these general terms and conditions. These form part of all contracts which RAIL.ONE concludes with its contractual partners (hereinafter referred to as "Clients") regarding the deliveries and services offered by RAIL.ONE. They also apply to all future deliveries, services and offers to the Client, even if they are not agreed separately elsewhere.
1.2 Terms and conditions of the Client or of third parties shall not apply, even if RAIL.ONE does not separately contradict their validity in individual cases. Even if RAIL.ONE makes reference to a written document containing the terms and conditions of the Client or of a third party, or otherwise refers to them, this shall not constitute agreement to the validity of such terms and conditions. These terms and conditions also apply if we provide the delivery or service to the Client without reservation, despite being aware of Client terms which conflict or deviate from these terms and conditions.
1.3 These general terms and conditions apply only to companies, legal entities under public law or special assets under public law within the meaning of Section 310(1) of the German Civil Code (German acronym: BGB).

2. Offers and contract conclusion
2.1 All RAIL.ONE offers are non-binding and without obligation, unless they are expressly identified as binding or contain specific terms of acceptance.
2.2 The ordering of goods or services by the Client is deemed to be a binding contractual offer. Unless the order provides otherwise, RAIL.ONE is entitled to accept this contractual offer within 14 days after its receipt. Acceptance may be given either in writing (e.g. by order confirmation) or through delivering the goods to the Client or through the performance of the service.
2.3 The only decisive element for the legal relationships between RAIL.ONE and the Client is the written contract (in a legal sense: i.e. even if the contract comes into effect as a result of a separate offer and acceptance), inclusive of these general terms and conditions. The contract reflects all agreements made by the contracting parties in full. Verbal commitments by RAIL.ONE before the conclusion of the contract are not legally binding and oral agreements between the parties are superseded by the written contract, unless it expressly arises that they shall remain in force.
2.4 In individual cases, individual agreements with the Client (including collateral agreements, supplements and amendments) will in any case take precedence over these general terms and conditions. A written contract or our written confirmation is decisive in terms of the content of such agreements.
2.5 Legally binding declarations and notifications that are to be issued by the Client to RAIL.ONE after conclusion of the contract (e.g. the setting of deadlines, defect reports, reminders, notice of cancellation or abatement) will be effective only if in writing.
2.6 Statements made by RAIL.ONE regarding the object of delivery or service (e.g. weights, dimensions, utility values, load, tolerances and technical data) and our representations of the same (e.g. drawings and illustrations) are only approximate insofar as their usability for the contractually agreed purpose requires exact conformance. They are not warranted characteristics, rather they are descriptions or identifications of the delivery or service. Customary variations and deviations which occur due to legal provisions or which are technical improvements – as well as the substitutability of components by equivalent parts – are permissible, provided they do not impair usability for the contractually intended purpose.
2.7 RAIL.ONE reserves the right of ownership to or copyright on all RAIL.ONE offers made and cost estimates as well as to/on drawings, diagrams, calculations, brochures, catalogues, models, tools, and other documents and aids provided for the Client. The Client may not make these items – either as they are or in terms of their content – accessible to third parties without RAIL.ONE's express permission, nor disclose them, use them itself or through third parties or reproduce them. At RAIL.ONE's request, the Client must return these items in full to RAIL.ONE and destroy any copies when they are no longer needed in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

3. Prices and payment
3.1 The prices apply for the scope of service and delivery stated on the order confirmation and/or contract. Additional or special services will be charged separately.
3.2 Prices are, unless expressly agreed otherwise, given in EURO and exclude VAT as well as fees and other public taxes and duties. If goods are delivered, this is done ex works, "free on truck/rail", exclusive of packing and customs.
3.3 In the case of sale by delivery to a place other than the place of performance, the Client shall bear the actual cost of transportation from the factory/warehouse and the costs of any transport insurance requested by the Client.
3.4 RAIL.ONE reserves the right to change its prices accordingly if costs increase after conclusion of the contract, especially as a result of collective agreements or material price changes. RAIL.ONE is obliged to proceed in the same manner in the event of cost reductions. RAIL.ONE shall provide the customer upon request with evidence of both cost reductions and cost increases, if and insofar they occur.
3.5 Invoices are due and payable within 30 days from the date of invoice, unless otherwise agreed. The date of payment is deemed to be the date on which RAIL.ONE receives the funds. Cheques are only deemed to have been validly paid upon the relevant funds entering RAIL.ONE’s bank account. Upon expiry of the aforementioned payment deadline, the Client is deemed to be in default. The invoice amount will be subject to the applicable statutory default interest rate during the delay in payment. We reserve the right to claim further damages. With regard to merchants, our entitlement to commercial maturity interest (Section 353 of the German Commercial Code (German acronym: HGB)) remains unaffected.
3.6 The deduction of any discount requires express written agreement.
3.7 Offsetting against counterclaims of the Client or the withholding of payments due to such claims shall be admissible only if the counterclaims are undisputed or legally binding by non-appealable decision. In the event of defects to the delivery or service, the Client's counterclaims remain unaffected in particular in accordance with Section 6.6 of these general terms and conditions.
3.8 If, after conclusion of the contract, it is apparent that our claim for the price agreed is endangered by the Client's inability to pay (e.g. through a petition to institute insolvency proceedings), we are entitled under statutory provisions to refuse performance and– should the situation arise, after a deadline has been set for performance or provision of securities to no avail – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made), we may withdraw immediately; this does not affect the legal provisions regarding the dispensability of setting a deadline.
3.9 Part deliveries will be invoiced immediately and the invoice amounts are to be paid regardless of the completion date of the entire delivery, unless otherwise agreed.

4. Delivery and Delivery time
4.1 Deliveries are made from the respective factory. The delivery time is agreed individually or indicated by RAIL.ONE upon acceptance of the order.
4.2 The deadlines and dates proposed by RAIL.ONE for deliveries and services are always merely approximate, unless a fixed period or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery times and dates refer to the time of delivery to the carrier, freight forwarder or other third parties responsible for the transportation.
4.3 Delays shall not be at RAIL.ONE's expense if the Client fails to fulfil its obligations to cooperate or not does not comply in good time, especially when the former must provide regulatory approvals, execution plans, specification documents for the subject matter hereof and/or the clarification of all technical details and advance payments.
4.4 RAIL.ONE may – without prejudice to its rights arising from the Client defaulting – demand an extension of the delivery and performance deadlines or a postponement of delivery and performance dates, where the duration of such extension or postponement is equal in duration to the period in which the Client does not fulfil its contractual obligations vis-à-vis RAIL.ONE.
4.5 RAIL.ONE is not liable for any inability to deliver or for delays in delivery caused by force majeure or other events which were unforeseeable at the time of contract conclusion (e.g. operational disruptions of all kinds, difficulties in procuring materials and energy, transport delays, strikes, lawful lockouts, lack of labour, energy or raw materials, difficulties in obtaining necessary regulatory approvals, governmental actions), for which RAIL.ONE is not responsible. If such events complicate RAIL.ONE's delivery or performance substantially or render it impossible and the difficulty is not merely of temporary duration, RAIL.ONE is entitled to withdraw from the contract. With regard to temporary hindrances, the delivery or performance deadlines will be extended or the delivery and performance dates postponed, where the duration of such extension or postponement is equal in duration to the period of hindrance plus a reasonable start-up period. If the Client cannot be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by sending immediate written notification to RAIL.ONE.
4.6 If RAIL.ONE cannot meet binding delivery deadlines for reasons for which RAIL.ONE is not responsible (non-availability of service), RAIL.ONE will inform the Client thereof immediately and simultaneously give notice of the new expected delivery date. If the service is not available by the new delivery deadline, RAIL.ONE is entitled to withdraw from the contract wholly or partially; RAIL.ONE will immediately refund any payment made by the Client. "Non-availability of service" in this sense refers in particular to delayed delivery by our suppliers – if we have concluded a congruent covering order – where neither we nor our suppliers are at fault or where, in a particular case, we are not obliged to undertake procurement.
4.7 RAIL.ONE is only entitled to make partial deliveries if the partial delivery can be used by the Client within the scope of the contractually intended purpose, if the delivery of the remaining ordered goods is ensured and if the Client does not incur any significant additional expenses or costs (unless RAIL.ONE agrees to assume these costs).
4.8 The occurrence of delayed delivery by RAIL.ONE is governed by statutory provisions. Nevertheless a reminder must be sent by the Client in all cases.
4.9 If RAIL.ONE is delayed in the performance of a delivery or service or if RAIL.ONE cannot perform a delivery or service for whatever reason, then RAIL.ONE's liability shall be limited to compensation for damages in accordance with Section 8 of these general terms and conditions.
4.10 The rights of the Client pursuant to Section 8 of these general terms and conditions and our legal rights remain unaffected, especially in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or supplementary performance).

5. Place of performance, shipping, packaging, transfer of risk, acceptance
5.1 Unless specified otherwise in the order confirmation or the contract, delivery is "ex works" and the place of delivery and service is our respective factory from which the delivery or service is performed. If RAIL.ONE is due to also perform the installation, the place of performance is the place where the installation is to be made.
5.2 The shipping method and packaging are subject to RAIL.ONE's reasonable discretion.
5.3 With regard to the delivery of concrete sleepers, delivery is on loading timber beams which are to be returned to RAIL.ONE – usually in the course of a future delivery. If this does not occur and a reasonable period return (set by RAIL.ONE) elapses unsuccessfully, the Client will be charged 1.50 EURO per beam. In all other respects, any packaging is charged at cost and transferred, or will be taken back if this is expressly agreed or required by legal regulations.
5.4 The risk of accidental loss and accidental deterioration of the goods shall pass to the Client upon handover. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods and the risk of delay are transferred to the Client when the delivery item is handed over to the forwarding agent, carrier or other third party identified to execute shipment (whereby the start of the loading process is decisive). This also applies if partial deliveries are made or if RAIL.ONE has assumed other services (for example shipping or installation). If shipping or the handover is delayed as a result of circumstances for which the Client is responsible, the risk shall pass to the Client on the day on which the delivery item is ready for dispatch and RAIL.ONE has notified the Client thereof.
5.5 The consignment will be insured by RAIL.ONE against theft, breakage, transport, fire and water damage or any other similar risks only at the express request of the Client and at the latter's expense.
5.6 If acceptance has been agreed, such acceptance will govern the transfer of risk. In addition, the statutory provisions of the law applicable to work and services shall also apply accordingly to an agreed acceptance. The acceptance is likewise deemed to have taken place if the buyer is late in accepting.
5.7 If acceptance is to take place, the delivery item is deemed to have been accepted if the delivery and (if RAIL.ONE is also due to perform the installation) the installation is complete, if RAIL.ONE has informed the Client of this with reference to the deemed acceptance according to this Section 5 (5.7) and has prompted the Client to accept, if twelve working days have passed since delivery and installation or if the Client has begun to use the delivery item (e.g. it has commissioned the delivered system) and, in this case, six working days have passed since delivery or installation and the Client has failed to perform acceptance within this period for any reason other than because of an identified RAIL.ONE fault which makes the use of the delivery item impossible or significantly impairs it.
5.8 If the Client is late with its acceptance, or if it fails to cooperate or if our delivery is delayed for other reasons for which the Client is responsible, then RAIL.ONE is entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs pursuant to Section 5.9). We charge lump-sum compensation in the amount of 0.5% of the price of the affected delivery per calendar week, up to a maximum of 5% of the total price of the contract, beginning with the delivery deadline or – in the absence of a delivery deadline – upon notification of readiness for dispatch of the delivery item. Proof of higher damages and our legal claims (in particular: compensation for additional expenses, reasonable compensation and termination) remains unaffected; the lump sum, however, is to be offset against further monetary claims. The Client is entitled to prove that RAIL.ONE has suffered no or considerably lower damages than the aforementioned flat rate.
5.9 Storage costs incurred after the transfer of risk are to be borne by the Client. If storage is by RAIL.ONE, the storage costs are 0.5% of the invoice amount for the stored delivery items per full week. The possibility of asserting and proving additional or lower storage costs remains unaffected.

6. Warranty, defects
6.1 The statutory provisions apply with regard to the rights of the Client in the event of material defects and defects of title (including wrong and short deliveries as well as improper installation or inadequate installation instructions), unless otherwise specified in these general terms and conditions. In all cases, the special statutory provisions remain unaffected in the case of the final delivery of the goods to a consumer ("recourse of the entrepreneur" pursuant to Sections 478, 479 BGB).
6.2 The basis of RAIL.ONE's liability for defects is predominantly the performance agreement made regarding the condition of the contractual object or service. The thus designated product and service descriptions (including those of the manufacturer) are deemed to form an agreement regarding the nature of the goods or services; these descriptions are submitted by RAIL.ONE to the Client before ordering or assignment have taken place, or are included in the contract. If the condition of goods and services has not been agreed, it will be assessed under the statutory regulations as to whether a defect is present or not. However, RAIL.ONE assumes no liability for official statements made by the manufacturer or by other third parties (e.g. advertising messages).
6.3 The Client's warranty claims require that it has complied with its statutory inspection and notification obligations (Sections 377, 381 HGB). If a defect becomes apparent upon inspection or at a later date, RAIL.ONE must immediately be notified thereof in writing. "Immediately" in this sense means that the receipt of notification must be within two weeks. Irrespective of these inspection and notification obligations, the Client must notify RAIL.ONE of obvious defects (including wrong and short deliveries) in writing within two weeks after delivery, whereby the receipt of notification must be made within this time for it to be valid. If the Client fails to undertake proper inspection and/or notification of defects, RAIL.ONE's liability for non-notified defects is excluded.
6.4 The Client must give RAIL.ONE and the latter's representative the opportunity to view and test the rejected goods and services of the contract and to grant RAIL.ONE and the latter’s representative access to the storage location for this purpose during normal business hours.
6.5 If the delivered goods are defective, then RAIL.ONE may first choose whether RAIL.ONE will remedy the defect (rectification) or deliver non-defective goods (replacement). RAIL.ONE's right to refuse supplementary performance pursuant to statutory requirements remains unaffected.
6.6 RAIL.ONE is entitled to undertake supplementary performance on the condition that the Client pays the purchase price due. The Client is, however, entitled to withhold a proportion of the purchase price corresponding to the defect
6.7 The Client must give RAIL.ONE the time and opportunity for supplementary performance, and must in particular hand over the goods forming the subject of the complaint for testing purposes. In the case of replacement, the Client must return the defective item to RAIL.ONE under the statutory provisions. Supplementary performance does not include the removal of the defective goods or its reinstallation if RAIL.ONE was not originally obligated to install it.
6.8 The expenditure necessary for the purpose of examination and supplementary performance, in particular transport, travel, labour and material costs (and not: removal and installation costs), shall be borne by RAIL.ONE if there is indeed a defect. However, if it is a rectification request by the Client that proves to be unjustified, RAIL.ONE may demand compensation from the Client for related expenses.
6.9 In urgent cases, such as in the case of danger to operational safety or prevention of excessive damage, the Client has the right to remedy the defect itself and demand that RAIL.ONE refund it for the associated, objectively necessary expenses. RAIL.ONE is to be immediately notified – if possible in advance – of self-performance of this type. The right of self-performance does not exist if RAIL.ONE would be entitled to refuse supplementary performance according to statutory provisions.
6.10 If supplementary performance fails or if a reasonable deadline set by the Client for supplementary performance expires without success, or if supplementary performance is deemed unnecessary by the legal provisions, the Client may withdraw from the contract or reduce the agreed price. In the case of a minor defect, however, there is no right of withdrawal.
6.11 Client claims for damages or compensation for futile expenses exist only in accordance with Section 8 and will for the rest be excluded.
6.12 In the case of defects of other manufacturers' components which RAIL.ONE cannot rectify for licensing or factual reasons, RAIL.ONE decides whether to assert its warranty claims against the manufacturers and suppliers on behalf of the Client, or to assign such claims to the Client. Warranty claims against RAIL.ONE exist in the event of such defects under conditions other than these and in accordance with these general terms and conditions only if the enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or is futile, for example, due to insolvency. For the duration of the legal dispute, the limitation period of the Client's relevant warranty claims against RAIL.ONE is suspended.
6.13 The warranty is void if the Client changes the delivery item without RAIL.ONE's consent or if the Client has it changed by third parties and rectification is thereby made impossible or unreasonable. In any case, the Client must bear the additional costs of rectification incurred as a result of the amendment.
6.14 If, as agreed in individual cases with the Client, used items are delivered, this shall take place without any warranty for material defects.

7. Property rights
7.1 RAIL.ONE, in accordance with this Section 7, guarantees that the delivery item is free of industrial property rights or copyrights. Each party will notify the other immediately in writing if any claims of infringement of such rights are asserted against it.
7.2 In the case that the delivery item violates a third party's industrial property right or copyright, RAIL.ONE will – at its own discretion and expense – modify or replace the delivery item such that no third-party rights are violated, whilst ensuring that the delivery item continues to meet the agreed functions, or will provide the Client with a licence to use it. If RAIL.ONE does not manage to do so within a reasonable time, the Client is entitled to withdraw from the contract or reduce the purchase price accordingly. Any claims for damages of the Client are subject to the restrictions of Section 8 of these general terms and conditions.
7.3 In the event that other manufacturers' products delivered by RAIL.ONE violate any rights, RAIL.ONE – at its discretion – will either assert its claims against the manufacturers and suppliers on behalf of the Client or assign them to the Client. Claims against RAIL.ONE exist in such cases in accordance with Section 7 only if the enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or is futile, for example, due to insolvency.

8. Liability
8.1 Unless these terms and conditions, including the following provisions, provide otherwise, RAIL.ONE is liable under the relevant statutory provisions. RAIL.ONE's liability for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and in tort, and insofar as it is a matter of fault in each case, is however restricted in accordance with this Section 8.
8.2 RAIL.ONE is not liable in cases of ordinary negligence of its bodies, legal representatives, employees or other vicarious agents, unless it is in breach of essential contractual obligations. "Essential contractual obligations" are deemed to be: the timely delivery and installation of the delivery item, its freedom from defects which impair its functionality or usability more than merely insignificantly, as well as consultancy, protection and care duties that enable the Client to properly use the delivery item or which aims to protect the lives and health of the Client's personnel or its property from significant damage.
8.3 Insofar as, according to 8.2, RAIL.ONE is liable on the merits for compensation provisions, this liability is limited to damages that RAIL.ONE foresaw when concluding the contract as a possible consequence of a breach of contract, or which RAIL.ONE should have foreseen in applying customary due diligence. Indirect or consequential damages resulting from defects in the delivery item are also reimbursable only to the extent that such damage is typically to be expected when the delivery item is used as intended.
8.4 In the case of liability for ordinary negligence, RAIL.ONE's liability for property damage and the resulting further financial losses is limited to € 2 million per event, even if it is a breach of essential contractual obligations.
8.5 The above exclusions and limitations apply to the same extent in favour of RAIL.ONE's bodies, legal representatives, employees and other vicarious agents.
8.6 Insofar as RAIL.ONE provides technical information or advice and such information or advice is not within RAIL.ONE's contractually agreed scope of services, this is done free of charge and without any liability accepted.
8.7 The limitations of this Section 8 do not apply to RAIL.ONE's liability for wilful intent, for guaranteed characteristics, to injury to life, body or health or under the German Product Liability Act.
8.8 In the case of a breach of obligations which is not a defect, the Client may only withdraw from or terminate the contract if RAIL.ONE is responsible for the breach of obligations. An unrestricted right of termination by the Client (in particular pursuant to Sections 651, 649 BGB) is excluded. For the rest statutory requirements and legal consequences shall apply.

9. Limitation period
9.1 Unless otherwise agreed, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the period of limitation begins upon acceptance.
9.2 However, if the good is a building or an item used in accordance with its normal use for a building or other structure and has caused its defectiveness (building material), the limitation period is 5 years after delivery, in accordance with legal provisions (Section 438(1) No. 2 BGB). In addition, this does not affect special statutory provisions for claims for restitution of third parties (Section 438(1) No. 1 BGB), nor in the event of fraudulent intent by the seller (Section 438(2) BGB) or in the event of claims for recourse of the entrepreneur for final delivery to a consumer (Section 479 BGB).
9.3 The foregoing limitation period regarding sales law also applies to the Client's contractual and non-contractual claims for damages, based on a defect of the goods, unless the application of the normal statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in a particular case. The limitation period of the German Product Liability Act shall remain unaffected in any case. The statutory limitation periods shall otherwise exclusively apply to the Client's claims for damages in accordance with Section 8 above.

10. Retention of title
10.1 Until the full payment of all present and future RAIL.ONE claims arising from the contract and from any ongoing business relationship (secured claims) RAIL.ONE reserves the ownership of the goods sold.
10.2 The Client will store the goods which are subject to retention of title free of charge for RAIL.ONE; proper storage is to be effected at the Client's expense and separately from the other items; at the request of RAIL.ONE, the goods are to be specially marked and insured against damage, destruction and loss.
10.3 The goods subject to retention of title may neither be pledged to third parties before full payment of the secured claims, nor transferred as a form of security. The Client must inform RAIL.ONE immediately in writing if and insofar as third parties access goods belonging to us.
10.4 In the event of the Client breaching the contract, in particular in the event of non-payment of the purchase price due, RAIL.ONE is entitled, under statutory provisions, to withdraw from the contract and reclaim the goods on the grounds of retention of title and withdrawal. If the Client fails to pay the amount due, RAIL.ONE may assert these rights only if RAIL.ONE has previously set the Client a reasonable deadline for payment (which has not been met) or if the setting of such a deadline is unnecessary according to statutory provisions.
10.5 The Client is entitled to sell on and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
10.6 The retention of title extends to products resulting from the processing, mixing or combining of the goods from RAIL.ONE at their full value, whereby RAIL.ONE is deemed to be the manufacturer. If processing, mixing or combining with third parties' goods which are subject to retention of title, RAIL.ONE will acquire joint ownership thereof in proportion to the invoice value of the processed, mixed or combined goods. In other respects, the same applies with regard to the resulting product as for the goods delivered which are subject to retention of title.
10.7 The Client hereby assigns to RAIL.ONE, by way of security, any debt claims against third parties resulting from the resale of the goods or products, or those which amount to the value of any joint ownership by RAIL.ONE as per the preceding paragraph. RAIL.ONE accepts this assignment. The Client's obligations referred in Section 10.3 also apply in respect of the assigned claims.
10.8 The Client remains authorised to collect the debt claim, in addition to RAIL.ONE. RAIL.ONE undertakes not to collect the debt claim as long as the Client meets its payment obligations vis-à-vis RAIL.ONE, does not fall into arrears, no petition to institute insolvency proceedings has been made and no other defect is present in its performance. If this is the case, then RAIL.ONE may demand that the Client inform RAIL.ONE of the assigned claims and the relevant debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
10.9 If the realisable value of the securities exceeds our claims by more than 10%, RAIL.ONE will release securities (as chosen by RAIL.ONE) upon the Client's request.

11. Miscellaneous provisions
11.1 The assignment of claims of RAIL.ONE customers vis-à-vis RAIL.ONE that arise from the business relationship is excluded unless they are monetary claims.
11.2 If the contract or these general terms and conditions contain omissions, other legally effective provisions will be deemed as agreed, where the latter close these loopholes and where the parties would have agreed on such provisions pursuant to the economic objectives of the contract and the purpose of these general terms and conditions had they been aware of the loophole.
11.3 With regard to these general terms and conditions and to all legal relationships between RAIL.ONE and the Client, the law of the Federal Republic of Germany applies, excluding international uniform law; in particular the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply. The requirements and effects of retention of title pursuant to Section 10 are subject to the law of the respective location of the object, insofar as, according to this law, the preference for German law is inadmissible or ineffective.
11.4 If the Client is a merchant according to the German Commercial Code, a legal entity under public law or a special asset under public law, or if the Client has no general jurisdiction in Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between RAIL.ONE and the Client will either be – at RAIL.ONE's discretion – Nuremberg or the registered office of the Client. However, Nuremberg is the exclusive place of jurisdiction in cases of complaint against RAIL.ONE. Mandatory statutory provisions on exclusive jurisdiction remain unaffected by this provision.
11.5 The Client hereby notes that RAIL.ONE stores data from the contractual relationship according to the German Federal Data Protection Act for the purpose of data processing and reserves the right to transmit such data to third parties to the extent necessary to fulfil the contract (e.g. insurance).
11.6 References to the validity of statutory provisions are only given for clarification purposes. Even without such clarification, the statutory provisions apply insofar as they are not directly modified or expressly excluded in these general terms and conditions.

Our Terms and Conditions

General Terms and Conditions of Purchase for Deliveries and Services
(As of: November 2014)

1. Validity, written form
1.1 All deliveries, services and quotations provided by our suppliers or contracting partners (hereinafter "Suppliers") shall be provided exclusively on the basis of the present General Terms and Conditions of Purchase. They shall be part of all the contracts that we conclude with our Suppliers about the deliveries or services provided by them. They shall also apply to all future deliveries, services or quotations to us, even if they are not agreed upon separately again.
1.2 The terms and conditions of our Suppliers or third parties shall not apply, even if we have not separately contradicted their validity in the individual case. Even if we refer to a letter that contains terms and conditions of the Supplier or a third party or refers to these, this shall not constitute any agreement to the validity of those terms and conditions. They do not even become part of the contract if we accept the delivery or work unconditionally, in the knowledge of different or conflicting terms and conditions.
1.3 Our Terms and Conditions of Purchase shall only apply in relation to entrepreneurs as defined by Section 14 German Civil Code, legal persons under public law or special funds under public law.
1.4 All the agreements that are made between us and the Supplier for the purpose of the execution of the present contract shall be laid down in the present contract in writing.
1.5 Individual agreements made with the Supplier in an individual case (including subsidiary agreements, additions and amendments) shall take precedence over General Terms and Conditions of Purchase. The contents of such agreements shall be governed by a written contract or our written confirmation.
1.6 Legally binding declarations and notifications that must be submitted to us by the Supplier after the conclusion of the contract (e.g. the setting of deadlines, reminders, declaration of rescission) must be in writing in order to be valid.
2. Orders and order volume
2.1 Our order shall be regarded as binding when it is submitted or confirmed in writing at the earliest. The Supplier must point out obvious errors (e.g. spelling or calculation mistakes) and any incompleteness in the order, including the order documents, before accepting it, so that it may be corrected or completed.
2.2 Insofar as our orders do not expressly contain a commitment period, we are bound to them for two weeks after the date of the order. The receipt of the declaration of acceptance by us shall determine whether the order is accepted on time. Late acceptance shall be regarded as a new quotation and shall require acceptance by us.
2.3 We are entitled to change the time and place of delivery and the type of packaging at any time by notice in writing, at least 1 week before the agreed delivery date. The same shall apply to changes to product specifications, insofar as these can be implemented within the framework of the Supplier's normal production process, without any considerable extra effort; in such cases, the notice period, in accordance with the previous sentence, shall be at least 2 weeks. We shall reimburse the Supplier for any reasonable additional costs that can be proven to arise as a result of the change. If such changes result in delays in delivery, which cannot be avoided in the Supplier's normal production and business operations with reasonable efforts, the originally agreed delivery date shall be postponed accordingly. The Supplier shall notify us in writing of the additional costs or delays in delivery that it anticipates, on the basis of a careful assessment, in good time before the delivery date, but at least within 2 working days of the receipt of our written notice, in accordance with the first sentence of the present clause.
2.4 We are entitled to terminate the contract at any time with a written declaration, stating the reason, if we can no longer use the ordered products in our business operations due to circumstances that have arisen after the conclusion of the contract. In this case, we shall pay the Supplier for the partial performance that it has provided.
3. Prices, packaging
3.1 The prices indicated in our order shall be binding maximum prices and shall remain binding even if prices increase in the meantime. However, if the Supplier reduces its prices by the delivery date, this reduction shall be passed on to us.
3.2 In the absence of a written agreement to the contrary, the price shall include all the services and ancillary services of the Supplier (e.g. assembly, installation) and all the incidental expenses (e.g. proper packaging, transport costs including any transport and liability insurance) to the shipping address specified in the order.
3.3 If the agreed upon price does not include the packaging and the price for the packaging – which is not just provided by way of a loan – is not expressly determined, this must be invoiced at the proven cost price. We shall only return packaging materials if this has been expressly declared by us in writing or if it is prescribed by law. At our request, the Supplier must, however, take back the packaging at its own expense.
3.4 All prices shall include the statutory VAT, unless it is shown separately.
4. Terms of payment, invoice details, default interest
4.1 Unless otherwise agreed in writing, we shall pay with a 3% discount within 14 days, or net within 30 days after delivery and service and the receipt of a properly prepared invoice. If an inspection or acceptance is agreed, we shall pay within 15 days after the delivery and service, unless otherwise agreed in writing.
4.2 Our order number, the product name, the delivery quantity and the delivery address must be given in all the order confirmations. If one or more of these details is missing and processing by us is delayed as a result, in our normal business operations, we shall not be responsible for resulting delays in the processing or payment, and the payment periods specified in 4.1 shall be extended by the duration of the delay.
4.3 We shall not owe any overdue payment interest. In the event of a default of payment, we shall owe default interest to the amount of five per cent above the basic interest rate in accordance with Section 247 German Civil Code. The statutory regulations shall apply to the start of our default of payment, whereby, notwithstanding this, a written reminder by the Supplier is necessary in each case.
5. Deliveries and delivery time
5.1 The Supplier is not entitled to have the service that it owes performed by third parties (e.g. subcontractors) without our written consent in advance. The Supplier shall bear the procurement risk for its deliveries, unless otherwise agreed in the individual case (e.g. sale of goods in stock).
5.2 The delivery must take place to the address specified in the order. The Supplier is not entitled to provide partial deliveries without our written consent in advance. The Supplier shall bear the responsibility for the strict adherence to the shipping instructions specified in the order or otherwise agreed upon. When the goods are dispatched, we must be sent a corresponding dispatch note with the same contents as the delivery note. The values calculated by our respective plant shall determine the quantities and weights.
5.3 The delivery time (delivery date or period) specified by us in the order or otherwise agreed shall be binding. Early deliveries shall not be permitted. The delivery dates determined by us shall be the dates of arrival or completion. The Supplier is obliged to inform us immediately in writing if circumstances which may lead in the failure to observe the delivery time occur or become evident.
5.4 In the event of a default of delivery, we shall be entitled to all our statutory claims, without limitation, including the right to rescind the contract and the claim to compensation in lieu of performance after the fruitless expiry of a reasonable grace period. If we demand compensation, the Supplier shall have the right to prove to us that it is not responsible for the infringement of the obligations.
5.5 If the Supplier is in default, we may demand a contractual penalty of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We are entitled to demand the contractual penalty in addition to performance or as a minimum value of compensation owed by the Supplier, in accordance with the statutory regulations; the right to claim further damages shall remain unaffected. If we accept the late service, we shall impose the contractual penalty with the final payment at the latest. Further claims and rights remain reserved.
6. Default of acceptance and transfer of risk
6.1 The statutory regulations shall apply to our default of acceptance. The Supplier must expressly offer us its service even if a specific or definable calendar period is agreed for an act or contribution on our part (e.g. provision of material). If we are in default of acceptance, the Supplier may demand compensation for its additional expenses, in accordance with the statutory regulations (Section 304 German Civil Code). If the contract relates to a non-substitutable (custom-built) item to be produced by the Supplier, the Supplier shall only have further rights if we are obliged to make a contribution and are responsible for the omission of this contribution.
6.2 Section 373 German Commercial Code shall not apply, insofar as this regulation grants the Supplier additional rights to those provided for according to the German Civil Code.
6.3 The risk of the accidental loss and the accidental deterioration of the item shall be transferred to us upon handover at the place of performance. If an acceptance inspection is agreed, this shall be decisive for the transfer of risk. In other respects too, the statutory regulations of the law on contracts for work and services shall apply accordingly in the event of an acceptance inspection. If we are in default of acceptance, this shall be deemed equivalent to transfer or acceptance.
7. Liability
7.1 The following shall apply for installation work, repairs and other work and services: the Supplier shall be liable, in accordance with the statutory regulations, in the execution of all its services and also when they are executed by its agents. It shall also be liable for the observance of the statutory regulations, especially the environmental, accident prevention, fire prevention and safety-at-work regulations that apply to our plants.
7.2 The Supplier shall be liable for all damages incurred by us for which it or its agents are responsible, in accordance with the statutory regulations. It shall indemnify us, in particular, from all claims for compensation from third parties, which are asserted against us in connection with its contractual delivery or service, and even release us from instructions from supervisory authorities etc.
7.3 The Supplier undertakes to take out or hold a liability insurance policy and to maintain it for at least six months beyond the end of the contractual relationship. The liability insurance cover must extend to the liability of persons that the Supplier uses for the execution of its work to the extent to which these persons cause damages when performing their tasks arising from the present contract. The amount covered by the liability insurance policy must amount to, per incident, at least € 500,000 for personal injury and damage to property and € 50,000 for financial losses, unless other amounts are stipulated in the order. The Supplier must present us with proof of coverage for this insurance policy on request 10 days after the conclusion of the contract at the latest.
7.4 Our contracting partner and its agents must ensure the careful and safe storage of their property that is brought into our premises. We shall be liable for damages to this property or for the loss thereof etc., in accordance with the following general liability provision in 7.5.
7.5 In the event of wilful intent or gross negligence on our part or on the part of our representatives or vicarious agents, we shall be liable in accordance with the statutory regulations; also in the event of the culpable infringement of essential contractual obligations. If there is no deliberate breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damages. The liability on account of culpable injury to life, limb or health and liability according to the Product Liability Act shall remain unaffected. Unless expressly stipulated otherwise, our liability shall be excluded.
8. Property rights
8.1 The Supplier warrants that the products delivered by it do not infringe any property rights of third parties.
8.2 If a claim is asserted against us by a third party, the Supplier is obliged to indemnify us from these claims at our first written request; the Supplier's obligation to indemnify us shall relate to all expenses that we necessarily incur, resulting from or in connection with the claim asserted by a third party, unless the Supplier proves that it is not responsible for the infringement of the obligations which forms the basis for the infringement of the property rights.
8.3 Our further statutory claims arising from defects in title in the products delivered to us shall remain unaffected. 11.8 shall apply with regard to the limitation period.
9. Protection of title
9.1 We shall retain title or copyright to the orders submitted by us and to the drawings, illustrations, calculations, descriptions and other documents provided to the Supplier. The Supplier may not make them accessible to third parties or use or reproduce them themselves or through third parties, without our express consent. It must return these documents to us in full at our request, if they are no longer required by it in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Copies of these documents produced by the Supplier must be destroyed in this case; the only exception is the storage in the context of the statutory obligations to preserve records and the storage of data for backup purposes in the context of usual data backup practices.
9.2 Tools, devices, templates, models, etc. that we place at the Supplier's disposal or that are produced for contractual purposes and for which the Supplier charges us separately shall remain our property or shall become our property. The same shall apply for material that we provide for the performance of our orders. These items must be marked as our property by the Supplier and stored separately from identical or similar items, kept carefully, protected from damage of any kind, insured against all risk at the Supplier's expense and only used for the purposes of the contract. The costs of their maintenance and repairs shall be borne equally by the contracting partners - in the absence of an agreement to the contrary. However, insofar as these costs can be ascribed to the defects of items produced by the Supplier or to the incorrect use by the Supplier, its employees or its other vicarious agents, they must be borne by the Supplier alone. The Supplier shall inform us immediately of all not insignificant damage to these items and of access by third parties, e.g. seizures and any other kind of restriction of our title. It is obliged to hand over the items to us on request, if it no longer requires them for the fulfilment of the contracts concluded with us.
9.3 Complaints about the material provided by us must be made to the carrier immediately upon the acceptance of the material.
9.4 The processing or conversion of the material provided is always performed for us by the Supplier. If the material provided is processed with other goods that do not belong to us, we shall acquire co-ownership of the new item in the proportion of the value of the provided goods to the other processed goods at the time of processing. In other respects, the same shall apply for the item created through processing as for the material provided. If the goods provided by us are inseparably mixed or blended with other goods that do not belong to us, we shall acquire co-ownership to the new item in the proportion of the value of the goods provided to the other mixed items at the time of mixing. If the goods are mixed in such a manner that the other items can be regarded as the main item, it shall be deemed to be agreed that the owner of the main item shall transfer co-ownership to us on a proportionately.
9.5 The same shall apply in the event of the further processing of the delivered goods by us, so that we are considered to be the manufacturer and acquire title to the product, in accordance with the statutory regulations, with the further processing at the latest.
9.6 Insofar as the security interests to which we are entitled under to 9.4 exceed the purchase price of all our goods subject to a retention of title that have not yet been paid for by more than 10%, we are obliged to release the security interests at our own discretion, at the request of the Supplier.
9.7 The Supplier's retentions of title shall only apply, insofar as they relate to our payment obligation for the respective products to which the Supplier retains title. In particular, the extended or prolonged retention of title is not permitted.
10. Assignment and set-off
10.1 The Supplier shall not be entitled to assign to third parties its claims arising from the contractual relationship. This shall not apply, insofar as monetary claims are concerned.
10.2 We shall be entitled to our full statutory rights of set-off and retention and the plea of non-performance. We are, in particular, entitled, to retain due payments, as long as we still have claims against the Supplier arising from incomplete or faulty services. In the case of defects, 11.11 of the present Terms and Conditions of Purchase shall take precedence.
10.3 The Supplier shall only have a right of set-off or retention on the basis of non-appealable decision or undisputed counterclaims.
11. Warranty
11.1 In the event of material defects and defects in title in the goods (including incorrect and short delivery and incorrect assembly, and inadequate assembly or operating instructions) and in the event of other infringements of obligations by the Supplier, we are entitled to our statutory claims, without limitation, unless otherwise determined below. In particular, we are entitled to demand, at our own discretion, the removal of the defect or the delivery of a defect-free item. In other respects, we are entitled to reduce the purchase price or rescind the contract, in accordance with the statutory regulations. Furthermore, we are entitled to compensation for damages and expenditure, in accordance with the statutory regulations.
11.2 The Supplier warrants that the contractual items comply with the condition, quality and usability agreed by the contract, in particular with our quality regulations, and also with the relevant DIN regulations and the statutory and public authority regulations that apply to their sale and their use and do not infringe the rights of third parties. The product descriptions that - particularly through a designation or reference in our order - are the subject matter of the respective contract or were incorporated into the contract in the same way as the present General Terms and Conditions of Purchase shall be regarded as an agreement as to the condition of the goods in each case. In this respect, it makes no difference whether the product description comes from us, from the seller or from the manufacturer.
11.3 The statutory regulations (Sections 377, 381 German Commercial Code) shall apply to the commercial obligations to conduct an examination and to give notice of defects, with the following condition: our obligation to conduct an examination shall be restricted to defects that are evident in our incoming goods inspection by a visual appraisal, including the delivery documents and in our quality control in spot checks (e.g. transport damages, incorrect and short delivery). If an acceptance inspection is agreed, there shall be no obligation to conduct an examination. In other respects, it depends on the extent to which an examination is feasible in the ordinary course of business, taking the circumstances of the individual case into consideration. Our obligation to give notice of defects for defects discovered later shall remain unaffected. In all cases, our notification of defects shall be deemed immediate and on time if it is received by the Supplier within 10 working days.
11.4 The costs incurred by the Supplier for the purpose of inspection and rectification (including possible dismantling and assembly costs) shall be borne by the latter if it emerges that there was in fact no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, we shall only be liable if we have recognised that there was no defect, or have not recognised this as a result of gross negligence.
11.5 We do not waive our warranty claims as a result of the acceptance or the approval of samples.
11.6 Notwithstanding Section 442 (1) sentence 2 German Civil Code, we shall be entitled to claims for defects without limitation, even if we were unaware of the defect when the contract was concluded, due to gross negligence.
11.7 If the Supplier does not fulfil its obligation to render supplementary performance – at our discretion by removal of the defect (rectification) or by delivering a defect-free item (replacement delivery) – within a reasonable term set by us, we may remove the defect ourselves and demand compensation for the expenditure necessary for this or an appropriate advance payment. If the supplementary performance by the Supplier failed or cannot reasonably be expected of us (e.g. on account of particular urgency, a risk to operational safety or the imminent occurrence of disproportionate damages), there shall be no need to set a deadline; we shall inform the Supplier immediately of such circumstances, in advance if possible.
11.8 Unless otherwise agreed, the warranty period for deliveries of items is 3 years, starting from the transfer of risk. Insofar as an acceptance inspection is agreed, the limitation period shall begin with the acceptance inspection. This 3-year limitation period shall also apply accordingly to claims arising from defects in title. Moreover, claims arising from defects in title shall on no account become statute-barred, so long as the third party can still assert the right against us – particularly in the absence of a period of limitation. The provisions of Section 438 (1) 1. and 2. German Civil Code and Section 634 German Civil Code shall remain unaffected in other respects.
11.9 The periods of limitation under the law governing the sale of goods, including the aforementioned extension, shall apply – to the statutory extent – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for compensation on account of a defect, the regular, statutory period of limitation (Sections 195, 199 German Civil Code) shall apply if the application of the periods of limitation under the law governing the sale of goods does not lead to a longer period of limitation in the individual case.
11.10 With the receipt of our written notification of defects by the Supplier, the period of limitation of warranty claims shall be suspended until the Supplier rejects our claims or declares the defect to be removed or otherwise refuses to continue negotiations concerning our claims. In the event of a replacement delivery and the removal of the defect, the warranty period for the replaced and repaired parts shall begin again, unless we have had to assume from the behaviour of the Supplier that the latter did not feel obliged to undertake the measure, but only performed the replacement delivery or removal of the defect as a gesture of goodwill or for other reasons.
11.11 In the event of the notification of defects, we are entitled to retain three times the amount of the provisional costs of a rectification or replacement delivery until the complete defect-free delivery or production.
12. Product liability, insurance
12.1 The Supplier shall be responsible for all claims asserted by third parties on account of personal injury or material damage that can be ascribed to a faulty product that it has delivered, and is obliged to indemnify us from the resulting liability. If we are obliged to conduct a product recall because of a fault in a product delivered by the Supplier, the Supplier shall bear all the costs associated with the product recall.
12.2 The Supplier is obliged to maintain a product liability insurance policy, at its own expense, with an amount covered of at least € 10 million per incident of personal injury/material damage - blanket cover – for the duration of the present contract; i.e. until the expiry of the limitation period for defects; if we are entitled to further claims for compensation, these shall remain unaffected. The Supplier shall send us a copy of the liability insurance policy on request at any time.
13. Spare parts
13.1 The Supplier is obliged to hold spare parts for the delivered products for the period of ordinary technical use, but for at least 10 years after the delivery.
13.2 If the Supplier intends to cease production of spare parts for the products delivered to us, it shall inform us of this immediately after the decision about stopping production. This decision must be made at least 6 months before production is ceased – subject to paragraph 1.
14. Data protection
The Supplier acknowledges that we store data from the contractual relationship, in accordance with Section 28 Federal Data Protection Act, for the purpose of data processing and reserve the right to transmit the data, insofar as it is necessary for the execution of the contract, to third parties (e.g. insurance providers).
15. Confidentiality
15.1 The Supplier is obliged to keep the terms of the order and all the information and documents provided for this purpose (with the exception of information that is accessible to the public) confidential for a period of 3 years after the conclusion of the contract and only to use them for the execution of the order. It shall return them to us immediately on request, after handling enquiries or after processing orders.
15.2 The Supplier may not refer to the business relationship in advertising material, brochures, etc. without our written consent in advance or display the products manufactured for us.
15.3 The Supplier shall commit its subcontractors to this § 15 accordingly.
16. Place of performance, place of jurisdiction, choice of law, other provisions
16.1 The place of performance for all the Supplier's services shall be the place of business of our plant for which the delivery or service is intended, unless otherwise indicated in the order. The place of performance for the payment is Neumarkt, Germany.
16.2 If the Supplier is a merchant in terms of the German Commercial Code (HGB), a legal person under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the exclusive – even international - place of jurisdiction for all disputes arising from the business relationship between us and the Supplier shall, at our discretion, be Neumarkt, Germany, or the place of performance for the delivery obligation. For actions against us, however, Neumarkt, Germany, shall be the exclusive place of jurisdiction in these cases. Mandatory statutory regulations about exclusive places of jurisdiction shall remain unaffected by this provision.
16.3 The law of the Federal Republic of Germany shall apply to these General Terms and Conditions of Purchase and all the legal relations between us and the Supplier, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Conditions and consequences of the retention of title are subject to the law in the respective place where the item is stored, insofar as the choice of law made in favour of German law is impermissible or invalid.
16.4 References to the validity of statutory regulations shall only be for the purpose of clarification. Even without such clarification, the statutory regulations shall apply, unless they are directly amended or expressly excluded in the present General Terms and Conditions of Purchase.
16.5 If the contract or the present Terms and Conditions of Purchase contain any gaps, they shall be filled with legally valid provisions, which the contracting partners would have agreed upon, if they had been aware of the gap, in accordance with the economic objectives and the purpose of the present General Terms and Conditions of Purchase.

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