General Terms and Conditions of Business

1. Scope of applicability
The following General Terms and Conditions of Business shall be effective in conjunction with the laying of running rails by Trackway & Welding GmbH in the capacity of Contractor. Provisions of differing content shall require to have been agreed in writing. Conditions of the Principal of contradictory and/or additional content shall not be held to have become part of any contract(s) concluded unless such condition(s) shall, in individual cases, have been explicitly approved in writing by the Contractor.

2. Conclusion of contract
Quotations of cost and offers of the Contractor shall be non-binding. A given order shall not be deemed to have become concrete until the Confirmation of Order of the Contractor has issued.

3. Scope of order
The scope of order shall be as specified in the quotation and Confirmation of Order of the Contractor. All such items of work as shall not have been specified therein shall be invoiced separately. All such assembly work as shall be required to be carried out additionally or repeated for reasons for which the Principal may be held accountable, shall be charged for separately. Scaffolding, electricity and water connections shall be provided by the Principal. The onus shall lie with the Principal to procure at its own expense any and all such items of approval as shall be required from official agencies, neighbouring parties and/or the building control authority.

4. Prices
Agreement shall be based on a package price inclusive of freight and despatch costs. Statutory Value Added Tax [Mehrwertsteuer] shall be chargeable in addition. Should it transpire subsequent to conclusion of contract, that increases are introduced in respect of material and wage costs, the Contractual Parties shall undertake to re-negotiate to establish an appropriate increase in price.

5. Payment
Of the price agreed, the complete material costs shall be payable as soon as the material is delivered to the building site, a further 35% becoming due and payable upon completion of half of the assembly work, and the remainder upon completion. Where the Principal shall be found to be in default on due date for payment, the Contractor shall be entitled to set a deadline of at least 14 calendar days, and where said deadline shall lapse without result, to advise termination of contract. In such event, the Contractor shall be at liberty to demand payment of the entire amount agreed, namely without obligation to effect subsequent performance. It shall be obligated, however, to make allowance for the savings attaching to such work as shall remain undone as a consequence or for such value as shall accrue through alternative work or shall fail to accrue through action constituting wilful intent.

6. Punctual assembly
The Principal shall be entitled to demand that deadlines for execution be observed subject to the proviso that the requirements attaching to unobstructed commencement of assembly have been satisfied on time and amounts payable have been settled as agreed. Where work shall be delayed for reasons for which the Contractor may not be held accountable, there shall be no obligation on the part of the Contractor to observe delivery deadlines agreed. Where the Principal shall fail to satisfy on time those requirements attaching to assembly, and, as a consequence, a delay/delays shall be incurred, the Principal shall be required to compensate the Contractor for any damage/loss deriving therefrom, and, more specifically, to effect payment for idle time caused, unless said Principal shall be in a position to prove that it may not be held accountable for the delay(s). Daily entitlement shall be of amount equivalent to 3% of the value of order and shall not exceed 15% in so far as one or other Party shall not provide proof of damage/loss of lesser extent.

7. Liability for defect(s) and compensation
The assertion of claim in respect of obvious defects shall not be entertained as of performance of acceptance. Claims in respect of any and all such defects as shall not have been obvious shall be required to be asserted within the warranty period applicable of 5 years as of acceptance. The Contractor shall be liable as provided for under statutory provisions prevailing, however, liability in respect of compensation shall be restricted as specified hereinafter:
  1. liability shall prevail in the event of simple negligence only where there is loss of life, physical injury or damage to health;

  2. liability shall prevail in the event of wilful intent on the part of vicarious agents and/or in the event of gross negligence on the part of the legal representatives, employees or vicarious agents only to such extent as shall be limited to such loss/damage as shall have been foreseeable and shall have occurred in typical manner; said limitation shall not, however, apply to such loss/damage as shall be a consequence of loss of life, physical injury or damage to health;

  3. liability shall also prevail in the event of simple negligence and notwithstanding the provisions contained under a) above where breach of cardinal duty shall be established; it shall be limited, however, as provided for under b.). A cardinal duty shall be taken to be such obligation fulfilment of which shall be a requirement for the contract to be properly implemented in the first place or upon compliance with which the Contractual Partner may reasonably depend on a regular and ongoing basis.

Mandatory provisions prevailing under the Product Liability Act [Produkthaftungsgesetz] shall remain thereby unaffected. The Principal shall not be required to assume liability of extent exceeding the foregoing in the event of any other breach of obligation and, more specifically, in the event of fault upon conclusion of contract or act of tort. Liability on the part of legal representatives, executive personnel, simple employees and vicarious agents shall not be of extent exceeding that of the Contractor itself.

8. Offset
Offset based on amounts receivable other than those which are undisputed or shall have been established under law shall be inadmissible where prior agreement shall not have been sought and secured.

9. Retention of title
Those items supplied by the Contractor shall remain the property of the Contractor until all monies owing under a given contract have been paid and received.

10. Miscellaneous
The contractual relationship shall be governed by German law. Jurisdictional venue shall be Aachen.

Should it transpire that one or other provision(s) under the present General Terms and Conditions of Business is/are, or shall become, ineffective, the effectiveness of the remaining provisions shall not be thereby affected. The Parties shall undertake and be obliged to replace the ineffective provision(s) by such as shall be held to be most consistent with the ineffective provision(s).

Aachen, 2011.11.28