General terms and conditions (GTC) of the company BAHNWAGGON, Trier - August 2010 -
The English version of these terms is only for information of our foreign business partners. The original German version of the GTC remains leading.
§ 1 - Activity of the company Bahnwaggon
Bahnwaggon is a trading and brokerage firm, which provides all kinds of railway vehicles, track materials and services in connection with rolling stock. That includes no financial and / or insurance services. Unless otherwise agreed in written form, Bahnwaggon only occurs as a broker for vehicles and services. Bahnwaggon does not have its own vehicles or garages.
The services of Bahnwaggon aimed exclusively for commercial customers and registered associations. At the request of Bahnwaggon, an evidence of commercial activity must be submitted.
In the following, seller and buyer as well as landlord and tenant are called customer.
§ 2 - Scope of the terms and conditions
These terms and conditions apply to all services of Bahnwaggon, and all resulting contracts for service, purchase, leasing and rent. They are also valid outside of Germany in every international business and legal transaction.
The GTC of the customer shall only apply, if they have been accepted in written form by Bahnwaggon (with signature).
§ 3 - Coming into force of the GTC, assignment of the company Bahnwaggon, formation of a brokerage contract
A brokerage contract, which based on this GTC, is formed with the use of our services. The use of our services is:
a) The request for further information for items or services offered by us;
b) Providing information to marketing of objects or services;
c) The assignment to search for specific items or services.
It is immaterial, if the usage made by mail, e-mail, fax, telephone, through the internet or in any other way. A brokerage contract does not require written form.
§ 4 - Dual activity
Bahnwaggon is allowed to work for seller as well as buyer respectively landlord and tenant commissionable and sign with several customers commission agreements during one transaction.
§ 5 - Due Diligence and transfer prohibition
Bahnwaggon convents to handle all information, they received by their customers, with care and don’t inform third parties, unless it is necessary to fulfill the assignment.
All information from Bahnwaggon are specifically intended for the customer. It is expressly forbidden for the customer, to transmit this information to a third party, unless Bahnwaggon gives a written and signed authorization.
If the customer violates against this obligation and a third party, which received the information by the customer, closes the deal, the customer is required to pay the agreed commission plus the applicable VAT.
§ 6 - Information by the customers
Bahnwaggon pointed out, that all information about objects and services was supplied by a customer respectively by a third party, which was authorized by a customer. The information is not checked by Bahnwaggon to its accuracy and completeness. The client informs Bahnwaggon constantly of all relevant circumstances and developments regarding the marketing object. The customer allows the marketing of the objects and services through print and electronic media (Internet and e-mail).
§ 7 - Reimbursement of expanses
In the case, that during a visit, representatives of Bahnwaggon are attending, Bahnwaggon has the right for compensation of the travel expenses by the client. The travel expenses are 0.30 Euro (net) for every driven km and possibly accommodation costs. In the case of an agreement of reimbursement the travel expenses will be charged with the commission claim.
§ 8 - Commission agreement and assignment to marketing
In addition to the already by § 3 created brokerage contract, Bahnwaggon is able to sign a written commission agreement and / or an assignment to marketing with their customers. Both the commission agreement and the assignment to marketing based on this GTC.
§ 9 - Commission and commission claim
Unless in the commission agreement or the assignment to marketing is no other commission rate agreed, the following commission rates shall be deemed to be agreed:
a) For sales contracts of objects located within Germany
4.5 % of the total economic value of the contract, including all related agreements, with a minimum of 750.00 Euro net per vehicle.
b) For sales contracts of objects located outside Germany
5.0 % of the total economic value of the contract, including all related agreements, with a minimum of 1’000.00 Euro net
per vehicle.
c) For rent of freight and passenger cars
Up to the nominal rent of 20 Euro per wagon and day, the commission is 1.00 Euro per wagon and day. Afterwards, the
commission will increase for each part of a 5-Euro-step by 0.25 Euro per wagon and day.
d) For rent of locomotives, as well as service contracts
4.5 % of the total economic value of the contract, including all related agreements.
All commissions are net, plus the applicable VAT (not for foreign entities, established within the EU and VAT number).
With the completion of a sales contract, brokered by us, the agreed commission is earned on the date of conclusion, due and payable immediately after receipt of the invoice. The payment date of the customer will be discount.
With the completion of a rental contract, brokered by us, the agreed commission is earned on the date of conclusion, due and payable on every first day of a month in advance. The payment date of the customer will be discount.
The commission claim remains even if the contract is ex post annulled or changed, is due to lapse because of challenge, or for any other reason turns out to be invalid, which one of the contract partners is responsible for. In each case, the principal is liable for the commission claims, which caused by his conduct a failure of the final contract. By an amicable resolution or rescission of the contract, both parties liable in equal parts.
The set-off of our commission claim with counterclaims is excluded. This doesn’t apply to counterclaims, which are accepted or undoubted by Bahnwaggon and for legally established claims.
§ 10 - Duty to provide information about known offers
If a customer already knows an evidence to conclude a contract, which is broker by Bahnwaggon, the customer must inform Bahnwaggon within 48 hours of receipt in written form, a proof must be attached. Otherwise, the evidence is recognized and the customer can no longer rely on such knowledge.
The customer is bound to reject subsequent direct offers by the proven contract partner or second offers by third parties - even if they are made to other conditions - relying to the previous offer of Bahnwaggon, otherwise the customer must pay the full commission to Bahnwaggon.
§ 11 - Replacement and subsequent transactions
A commission of the principal obligation in accordance with the agreed commission rate also exists for a replacement or follow-up business. A follow-up transaction is, for example, if a customer makes use of more or other services form a potential contractor, which are in connection with the activity of Bahnwaggon. The renewal of a rental or lease contract will also consider, by a total currency of all in all of 3 years, as a follow-up business.
It is not necessary, that the replacement transactions have the same economic value as the original offer. Our claim of commission is also given, if the contract is signed by a natural or legal person, who has any personal or economic relationship to the potential buyer.
§ 12 - Information from the customer
The customer is bound to send Bahnwaggon only truthful and updated information, in written and visual form, about his offers. Should Bahnwaggon be damaged by false information, the principal is liable to the complete damage. That includes offers, which are only made to check the price.
The customer will send Bahnwaggon all necessary information, which is needed for a successful fulfillment of the assignment.
The customer has to ensure, that no rights of third parties will be hurt by the information he relinquished. This applies particulary to the drawings and photos for the publication.
§ 13 - Technical conditions of the offers
The customer takes the responsibility to ensure, that the objects at the time of the delivery correspond with the current offer description. This includes not wear because of normal use or storage. Any change of state has to be notified by the customer to Bahnwaggon.
§ 14 - Duty to inform by the customers
The customers voluntarily inform Bahnwaggon about any new progress in direct negotiations.
The customers have to inform Bahnwaggon promptly about a date for signing the contract in written form. Representatives of Bahnwaggon are entitled to be present when the contract is signed and an immediate duplicate or copy of the contract and all ancillary agreements relating thereto, if these are important for calculating and maturity of the commission. Oral agreements of this kind must be advertise Bahnwaggon promptly in written form.
If no representative of Bahnwaggon should be attend by signing the contract the customers are bound to provide Bahnwaggon promptly with all of above mentioned documents by mail or e-mail.
§ 15 - Preemption
Bahnwaggon can’t give any preemption or reservation to any customer. The acceptance goes to the customer who is willing to sign the contract first.
§ 16 - Default and dunning charge
If a debtor with the payment of the commission in default, he will be, according to § 288 BGB, charged default interest in the amount of 5 % above the base rate of the “Deutsche Bundesbank” (German Federal Bank) p.a. If the debtor is a trader, he will be charged default interest from the day of delay in the amount of 8 % above the base rate of the “Deutsche Bundesbank” (German Federal Bank) p.a.
For each dunning letter 10.00 Euro become due, plus the applicable VAT.
§ 17 - Liability and limitation of liability
Claims for damage against Bahnwaggon, with the exception for gross negligence or intentional acts, are excluded. All our information based on third parties, so we can’t guarantee the accuracy or completeness of the information.
The offers are non-binding. Mistakes, prior sale respectively prior rent by Bahnwaggon or the customer will be reserved.
Bahnwaggon is not liable for the solvency of their proven or mediated potential customers.
Claims for damages by loss of profits are excluded.
Bahnwaggon points out that during an inspection in the track bed, safety boots and safety vest are obligatory. Inspections are always done on own risk. The liability of Bahnwaggon during inspections will be limited to gross negligence or intentional acts.
Bahnwaggon is not liable, except gross negligence or intentional acts, for any damages, caused by electronic communication (e-mail and internet). This includes also the Bahnwaggon newsletter.
§ 18 - Limitation
The limitation period for all claims for damages against the company BAHNWAGGON is 3 years. It begins with the date on which the undertaking triggering action for damages has been committed.
§ 19 - Jurisdiction
The place of performance for all of the contractual relationship and obligations and claims of jurisdiction - also for foreign companies - is the headquarters BAHNWAGGON; Trier, Deutschland. German law applies. Overriding law, particularly U.S. trade law or UN law is expressly excluded.
§ 20 - Severability clause
Deviations from our “Terms and Conditions” are available only with our written and signed confirmation.
Should one or more of the following provisions previously invalid, so is the validity of the remaining provisions remains unaffected. This also applies if, within a part of a scheme is ineffective, but another part effectively.
The relevant provision is invalid between the parties replaced by a regulation, the economic interests of the Parties to the next, and, moreover, the contractual arrangements do not alter.
Note:
The use of these GTC, even in part, requires the written and signed permission of the company Bahnwaggon.
Deutschsprachige AGB der Fa. Bahnwaggon im pdf-Format (BahnWaggon_AGB_deutsch.pdf, 147 kB)
English version of the general terms and condition of Bahnwaggon as a pdf-file (BahnWaggon_GTC_english.pdf, 141 kB)
