General Terms and Conditions of Business
a. RailAdventure GmbH (“RailAdventure”) is a company providing services involving the railway and other means of transportation. In particular, RailAdventure offers the following services:
- Transportation of railway vehicles and traction units by their own means or, if necessary, by towing;
- Implementation of transit and test drives, including support in the clarification of any technical questions in this respect;
- Shutdown management;
- Planning and implementation of events of a private or public nature.
b. RailAdventure provides its services exclusively on the basis of the respective written contractual relationship and these general terms and conditions of business (“GTB”). Any deviating contractual terms and conditions shall only be recognised by RailAdventure if the company expressly agrees to their applicability in writing.
c. The GTB shall apply to all contractual relationships which are concluded or have been concluded with the respective contractual partner, its legal successor, its subsidiary companies or their legal successors. The GTB shall also apply to future dealings with the said parties, to the extent that the said dealings concern legal transactions within the framework of the field of business of RailAdventure.
d. The GTB of business shall apply to all activities of RailAdventure, regardless of whether RailAdventure provides the services itself or has the services carried out by third parties.
2. Conclusion of the contract / amendments to legal provisions / materials which have been handed over
a. All offer letters of RailAdventure shall be subject to confirmation unless RailAdventure confirms the order issued on the basis of the respective offer letter in writing.
b. RailAdventure issues its offers exclusively on the basis of the legal and administrative provisions applicable at the time of submission of the respective offer, as well as their interpretation by the competent courts and authorities at the time of submission of the respective offer. If these legal and administrative provisions or their interpretation change after the offer has been issued, and if this will affect the execution of the order by RailAdventure, the parties shall amicably agree on a mutually acceptable regulation. If the parties cannot agree on such a regulation, RailAdventure shall be entitled to cancel the order for important reasons.
c. RailAdventure shall retain ownership rights and copyright in respect of all documents or other materials which are handed to the contracting partner of RailAdventure within the framework of the contractual relationship or in its run-up. The materials shall not be made accessible to third parties.
3. Rights and obligations of RailAdventure
a. Should the implementation of a contractual relationship be subject to the current operations on the infrastructure of a railway infrastructure company, RailAdventure shall not be liable in respect of disruptions in the area of the said infrastructure. In particular, changes can be made at short notice in the implementation of the services of RailAdventure. RailAdventure shall endeavour to compensate in agreement with the contracting partner in respect of postponements of the place of performance or time of performance. The liability of RailAdventure in respect of its own fault or fault on the part of its vicarious agents in accordance with Number 7 below shall not be affected.
b. If a contracting partner surrenders goods to RailAdventure within the scope of a contractual relationship, RailAdventure will not be obligated to inspect those goods or carry out measures to maintain them unless this has been explicitly stipulated within that contractual relationship. The contracting partner ensures that the vehicles it surrenders are subject to proper maintenance in compliance with statutory provisions. Otherwise, RailAdventure may refuse to accept the vehicles. Unless expressly agreed in writing, RailAdventure will not assume the role of an Entity in Charge of Maintenance (“ECM)”.
c. RailAdventure shall be entitled to have all of the services which it is obliged to provide under the contractual relationship carried out by third parties, unless otherwise expressly agreed in writing in the respective contractual relationship.
4. Special provisions concerning transportation and transfer
a. RailAdventure transports railway vehicles and traction units by their own means or, if necessary, by towing. The type of transport, and the times and locations for pickup and delivery, shall be set in the offer.
b. Should circumstances arise during transportation and transit that necessitate a different transportation and transit than is intended in the offer (for example, towing instead of self-propelled or due to diversions), RailAdventure shall pass on all additional costs incurred in this respect to the customer, plus a fixed processing fee of 20% of the said costs, provided RailAdventure is not responsible for the said circumstances. Any contractual penalties for late deliveries which have been agreed shall not apply in such cases.
c. The provisions in Number 4 b shall also apply if the vehicle to be transported or transferred has a defect during transportation or transfer for which RailAdventure is not responsible and repairs need to be carried out.
d. Should no express delivery times be set out in the offer/contract, the customer shall not be entitled to assert costs due to supposed late delivery.
e. RailAdventure will not be liable if compliance with a delivery time is impossible due to unforeseeable circumstances (force majeure, strike, etc.) for which RailAdventure is not responsible.
f. RailAdventure will only conclude separate insurance in respect of the vehicle to be transported if specifically so agreed in the offer/order.
5. Special provisions for test drives
a. Test drives which are carried out by RailAdventure for a customer require a significant preliminary phase in planning. In this respect, a preliminary phase of twelve to sixteen weeks is necessary. Should the customer commission RailAdventure less than twelve weeks prior to the requested date, RailAdventure will endeavour to carry out the order. No guarantee can be given in respect of the date requested by the customer in such cases.
b. Due to the significant preliminary phase of test drives, RailAdventure shall prepare a project plan for the organisation. The project costs shall be charged to the customer in the offer phase.
c. Within the framework of the implementation of test drives, RailAdventure shall not assume any care obligations in respect of the rolling stock concerned; the direct possession of the rolling stock shall remain fully with the customer. The customer shall be entitled to take all decisions fully and at any time in respect of the rolling stock concerned and to issue RailAdventure instructions, including detailed instructions, to that extent. RailAdventure shall be liable only in respect of its own breaches of duty and those committed by its vicarious agents, taking Number 7 of these GTB into account.
6. Cancellations and postponements
a. Should implementation of an order be postponed or cancelled by the customer following issuing of the order, the customer shall refund to RailAdventure the costs incurred up until the point of cancellation/postponement, plus a fixed processing fee of 10% of the said costs, however, as a minimum the fixed fees named under letter b.
b. In case of last minute cancellations/postponements, the customer shall pay the following fees to RailAdventure (in percentage terms of the commissioned order sum) without the need for proof on the part of RailAdventure:
Cancellation/postponement less than 240 hours (up to 120 hours) prior to scheduled commencement of implementation of the order: 15%;
Cancellation/postponement less than 120 hours (up to 72 hours) prior to scheduled commencement of implementation
of the order: 30%;
Cancellation/postponement less than 72 hours (up to 24 hours) prior to scheduled commencement of implementation
of the order: 50%;
Cancellation/postponement less than 24 hours prior to scheduled commencement of implementation of the order: 75%.
Any losses going beyond the above must be proved by RailAdventure.
a. As a rule, RailAdventure shall only be liable in relation to its contractual partners for losses incurred by the latter due to intentional or gross negligent behaviour on the part of RailAdventure or due to a guarantee which has been given by RailAdventure. The same shall apply in respect of damage caused by the vicarious agents of RailAdventure.
b. RailAdventure shall only be liable in respect of damage caused by simple negligence to the extent that this concerns breach of significant obligations (cardinal obligations) by RailAdventure or its vicarious agents. Cardinal obligations are those contractual obligations whose fulfilment allows proper implementation of the contract and on the compliance with which the contracting parties may absolutely rely. Under this regulation, RailAdventure’s liability is limited to typically foreseeable damage.
c. RailAdventure shall incur unlimited liability in accordance with the statutory provisions in respect of violation of life, body or health of the contracting partners, to the extent that such damage concerns a negligent breach of duty on the part of RailAdventure or its vicarious agents.
d. The provisions of the paragraphs above shall apply accordingly for (i) any duty to provide compensation for futile expenses and (ii) the personal liability of the staff, employees, workers, representatives and vicarious agents of RailAdventure.
e. Should RailAdventure assume possession in regards to a means of transport within the framework of the contractual relationship, RailAdventure shall conclude a third party liability insurance policy with the standard coverage. Any damages which go beyond such a standard third party liability insurance policy shall be borne by the contracting partner in the relationship between RailAdventure and the contracting partner. To that extent, the contracting partner shall indemnify RailAdvanture from third-party claims.
f. Compelling statutory liabilities shall not be affected.
a. Invoices of RailAdventure are payable immediately without deductions. In particular, the deduction of discounts is only permissible in case of separate written agreement. Payments to RailAdventure shall be made exclusively to the account named on page 1 of these GTB.
b. The contracting partner shall not be permitted to offset with counterclaims, unless the said claims have become res judicata or acknowledged by RailAdventure in writing. The contracting party may exercise rights of retention only insofar as its counterclaim is based on the same contractual relationship.
c. Default interest shall be charged by RailAdventure to the amount of 9% above the respective base rate of interest per annum. The assertion of higher default damage remains reserved.
d. RailAdventure shall reserve the right to carry out reasonable price adjustments due to changes in wage, material or other costs in respect of services of RailAdventure which take place four (4) months or later following conclusion of the contract.
9. Special provisions concerning events carried out by RailAdventure
a. To the extent that a contracting partner of RailAdventure is located on the infrastructure of German Railways (Deutsche Bahn AG) or another infrastructure operator within the framework of the contractual relationship, the use of the said infrastructure by the contracting partner shall only be permitted to take place in the areas which are accessible to the public. This shall, in particular, concern the train stations, platforms and their public access paths which are operated for passenger transport. In case of infringements by the contracting partner, RailAdventure shall not assume any liability in relation to the contracting partner or third parties.
b. During the event, the participants shall follow the instructions of the persons authorised by RailAdventure. In case of infringements by the contracting partner, RailAdventure shall not assume any liability in relation to the contracting partner or third parties.
c. The contracting partner shall ensure that its state of health during the event is sufficient to cope with such an event within normal parameters.
d. Without the need of a separate request from RailAdventure, the contracting partner shall take the usual measures to avoid damage, in particular injuries, for example holding tight during a trip on transportation equipment.
e. Private photography and filming by the participants shall only be permitted in agreement with a person authorised by RailAdventure. Such recordings shall only be permitted for private use. Commercial use or use for partly commercial purposes shall not be permitted.
f. To the extent that RailAdventure carries out or arranges photography or filming within the framework of the contractual relationship, the contracting partner declares its agreement in respect of the use of such recordings by RailAdventure.
a. The contracting partner shall be responsible for fulfilment of all customs regulations, unless agreed in writing that RailAdventure is responsible for compliance with such provisions.
b. For the services named under letter a, separate charge will be made to the contracting partner.
c. The contracting partner shall be liable for its own errors and omissions, as well as those of its auxiliary staff in respect of compliance with customs regulations, in particular in respect of submission of the relevant information for the customs forms.
11. Statute of limitation
a. All claims against RailAdventure shall lapse within six months.
b. Liability claims in accordance with Number 7 above shall be excluded from the above statute of limitation: such claims shall lapse within the statutory provisions.
a. These GTB and all legal relationships between the parties shall be subject to the law of the Federal Republic of Germany.
b. As a rule, RailAdventure shall formulate its contractual relationships in writing. If a written agreement exists, it is to be assumed in case of doubt that no oral ancillary agreements exist between RailAdventure and its contracting partners. Should any individual provisions of the written agreement be or become ineffective or contain a loophole, the remaining provisions shall not be affected thereby. In such a case, a legally permissible provision which comes closest to the economic purpose of the ineffective provision and/or fills the loophole shall be deemed to have been agreed.
c. To the extent that the contracting partner of RailAdventure is a businessperson, a legal person under public law or a public law special fund, the place of jurisdiction for disputes under the contractual relationship shall be Munich.
Munich, April 2019