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General terms and conditions of business for the sectors logistics, equipment, locomotive and human resources of the Nordbayerische Eisenbahn GmbH subsequently called “contractor”

§ 1 Scope of the general terms and conditions of business
Exclusively the contractors terms and conditions of business apply in case of contract conclusion of contractor and customer for the fulfilling of services in the sectors logistics, equipment, locomotive and human resources; other conditions will not be subject matter of the contract, even if the principal is not disagreeing formally.

§ 2 Matter of performance, time frame
(1) As accorded in the contract, the contractor undertakes the supply of staff and/or equipment and machines respectively. Content and extend of the performance to be achieved by the contractor, it determined according to the proposal, which is accepted by the customer in due time. As long as no binding period is mentioned in the proposal, a time limit of 2 weeks after date of proposal is considered as in due time.
If no proposal exists, e.g. call of from basic agreements, the service to be done is specified in the contractor’s acceptance of order. Changes and appendages to the proposal, the contract or parts of it need to be confirmed in written form by the contractor.
(2) Based on the records, requirements and other information provided by the customer, the contractor performs the services with the accuracy, which is usual in the line of business. The contractor can outsource (parts of) the services to another entrepreneur.
(3) For the time period of services the confirmation of the contract is significant, otherwise the contractor’s proposal. However, the contractor is not obliged to perform, as long as the customer does not fulfill the incumbent duties, particularly not delivering the necessary records and documents, licenses or permissions as well as the accorded prepayment.
(4) The contractor is authorized to dismissal without notice, if the customer is late with the acceptance of the services proposed by the contractor, or the customer desists the cooperation incumbent on him according to part 3 or otherwise. The contractor reserves the right for compensation of disprofit caused by the customer’s delay or nonfeasance of cooperation. This applies even if the customer makes use of his right to cancel.

§ 3 Delivery, passing of risk
If a handover with notice of receipt or an acceptance is accorded for the consignment or service, it replaces the quality inspection, acceptance test or official acceptance (e.g. by the federal railway office).

§ 4 Prices and invoices
(1) The payment is based on the contractor’s proposal. If no proposal exists the payment conforms to the order confirmation of the contractor. The purchase tax, regulated by law, is added to payment, even if it is not explicitly specified.
(2) For approval of the done working hours, the contractor will make a paper of hourly earnings. Its original version is to be signed by the customer as a sign of trueness and returned to the contractor. As long as not accorded otherwise, the customer has to make a daily signing possible. If the customer desists to the duty, stated in part 2, he needs to compensate the therefore caused disprofit.
(3) The contractor reserves the right to write up partial invoices according to the law, even before the final fulfilment of the contract of work, service, purchase and leasing respectively.
(4) Only bills will be treated as final invoices, which are explicitly identified so.

§ 5 Payments
(1) The customer is only entitled to exercise rights of summation and retention of payments against undisputed claims or claims which have been established as legally effective.
(2) Claims of the contractor for his fulfilled duties are to be paid immediately by the customer. In general, the payment is processed via bank transfer to the account of the contractor mentioned in the invoice, or a cheque is sent. The payment period is 14 days after invoice date. For the payments timeliness, the payment receipt on the contractor’s account is definitely and the receipt of the cheque by the contractor respectively.
(3) The contractor has the right to claim prepayments or deposits at its own discretion for not yet fulfilled services, when either the customer is more than 10 days in delay with the payment (even if it concerns payment duties from other law subject), or he stopped a payment purposely, or a considerable decline of the customer’s financial circumstances occurred.
The contractor is authorized to stop all services accorded in all contracts with the customer.

§ 6 Delay, compensation
(1) If the customer suffers from disprofit, due to the contractor’s delay of the fulfillment of the contractual services, the customer has the right (other claims are excluded) to be compensated for the delay. For every day of delay this represents 0,3 % of the net value of the contractor’s overall service, but altogether at the most 5 %.
(2) All further leading claims of the customer are excluded, especially claims of compensation of disprofit due to business interruption and lost benefit.

§ 7 Rescission/cancellation because of important reasons
The contractor may cancel the contract or rescind from the contract in case of an important reason. This applies particularly, when the customer made an application to open the insolvency proceeding, or if for the customer’s capital an (also preliminary) insolvency proceeding is opened and the opening was rejected for lack of interest respectively.

§ 8 Guarantee
The contractor is liable for defects of the contractor’s service irrespective to the sections 9 and 10 as follows:
(1) To make modifications and inspections, considered as necessary at the contractor’s own discretion, the customer has to give time and possibility to proceed this modifications after agreement. Otherwise the contractor is exempted from warranty. In urgent cases of endangering the operational safety and in defense of disproportionally great damages, the contractor has to be informed immediately. In these cases the customer has the right to correct the defect in the contractor’s service or to deploy a third party and to claim the cost compensation from the contractor. This applies also if the contractor is in delay with the correction of a defect.
(2) The replacement of staff and equipment, which are not appropriate to the contractual application, is decided by the contractor exclusively.
(3) Further claims made by the customer are excluded, particularly for mitigation or for compensation of consequential harm caused by a defect.

§ 9 Guarantee for collateral duties
The contractor does neither guarantee for the slightly negligent breach of collateral duties nor the wantonly negligent breach of collateral duties caused by auxiliary persons.

§ 10 Limitation of guarantee
A further guarantee, as designated in the sections 6, 8 and 9, is excluded without the consideration of the asserted claims state. This applies particularly for claims of compensation due to fault in contract negotiations, positive contract violation or due to tortious claims according to § 823 BGB.
The disclaimers, there mentioned, are not applied in case of intent und wanton negligence of institutions, leading staff or auxiliary persons as well as for culpable breach of essential contractual obligations. In case of culpable breach of essential contractual obligations the contractor is liable only for the contractual typical loss and reasonably predictable loss. This case of culpable breach excludes the case of intent und wanton negligence of institutions, leading staff or auxiliary persons.
Furthermore, the disclaimer does not apply for the takeover of guarantees, which intent especially to protect the customer from loss of this type and for injuries of bodies, lives or health.

§ 11 Act of nature beyond control
The contractor is not liable for damages, caused by events beyond control, riots, war, natural events or other events, which are representable by the contractor (e.g. strikes, lockout, traffic disturbance, national or international orders of higher authority).

§ 12 Privacy and data security
The customer is obligated with respect to us to treat confidentially all information and data, which becomes known to him within the framework of the business relationship. In addition, the data will not be passed on to third parties. The commitment does not extend with the completion of any contract.

§ 13 Place of judgment and applicable law
(1) For all disputes arising from or in connection with the order the place of judgment is Aschaffenburg, Insofar as the contract parties are merchants, publicly incorporated companies, or special funds under public law.
The contractor is also authorized to sue at the place of the customer.
(2) Place of fulfillment is the reception place of the customer, which is specified in the contract.

§ 14 Final clause
Should individual provisions of a contract be or become ineffective or contestable, the contract remains otherwise undisturbed by this partial ineffectiveness. The ineffective or disputable provision shall be replaced by a provision which comes commercially as close as possible to that which was intended when the contract was concluded.

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General terms and conditions of business for the commercial leasing of employees according to the “Arbeitnehmerüberlassungsgesetz” (AÜG)

1. The Nordbayerische Eisenbahn GmbH (lender) supplies its temporary workers to its customers (hirers) according to the “Arbeitnehmerüberlassungsgesetz” (AÜG).

The license was given the 28th June 2006, according to article 1 § 1 AÜG by the Federal Employment Agency Regional Directorate Bavaria. All fundamental attributes of the function are to be accorded exclusively with the NbE GmbH.

In case, the occupational safety regulations, which are accorded with you or they are compulsory regulations, are not fulfilled, the hirer is liable for expenses thereby generated.

The Nordbayerische Eisenbahn GmbH reserves the right to dismissal without notice.

2. If a leased employee refuses or breaks up the taking up of employment, the NbE substitutes the employee. If a substitution is not possible, the NbE is exempted from the assignment.

3. All employees from the NbE GmbH are contractually obliged to treat all matters of the hirer’s business confidentially.

4. For approval of the done working hours, the contractor will make a paper of hourly earnings. Its original version is to be signed by the customer as a sign of trueness and returned to the contractor. As long as not accorded otherwise, the customer has to make a daily signing possible. If the customer desists to the duty, stated in clause 4.1, he has to compensate to the contractor the disprofit thereby caused.

4.1 The contractor reserves the right to write up partial invoices according to the law, even before the final fulfilment of the contract of work, service, purchase and leasing respectively.

4.2 Only bills will be treated as final invoices, which are explicitly identified so.

5. The lender is liable for the leased employees to be generally qualified for the designated job. However the lender is not obliged to verify the correctness of working papers (especially certificates of the employees). Also he is not obliged to get police certificates of good conduct.

5.1 The NbE GmbH assumes no liability for the actions of the leased employees, as well as for slightly negligent breach defined by the NbE GmbH itself. The hirer is not permitted to consign his employees with money, commercial papers or other objects of value. If he does so, the hirer exclusively assumes liability.

5.2 The hirer can not make any claims of compensation for direct and indirect losses to the NbE GmbH, which legal ground ever he has.

6. If our employee does not start his employment or stays away from work at hirer’s company, the hirer has to give us notice immediately.

7. We reserve the right to keep back our services, if the hirer does not fulfill his duty or parts of it, and we already allowed a reasonable extra time. These duties are identified in this contract, in a former contract of supply of temporary workers or from any other business relationship to us.

8. The NbE GmbH is further authorized, to dismissal from the contract of employee leasing without notice due to an important reason. Particularly reasons are:

8.1 The hirer is in delay with his duty of payment from an earlier contract and has also exceeded the time extension.

8.2 The hirer refuses to fulfil his duties according to the leasing contract.
The fulfilment of the hirer’s duties seems to be highly endangered, because of e.g. a considerable decline of the hirer’s financial circumstances due to an application to open the insolvency proceeding, execution measures, or acts of protest.
The hirer does not fulfil his compliance of the accident prevention and the occupations health and safety regulations.

9. During the period of the working agreement with the NbE GmbH, the hirer commits himself not to poach the NbE GmbH employees and not to make use of possible breach of working agreement of our employees in an immoral manner.

10. All necessary data will be registered by data processing and circulated within the scope of the contract.

11. The invoices of the NbE GmbH are based upon the papers of hourly earnings. These papers are to be presented weekly by the NbE GmbH employee to the hirer for signing. The invoices are to be paid without deduction, within 14 days after receiving. The hired employees are not authorized to the collection of financial documents.

Claims, for which reason ever made by the hirer, can not be deducted.

12. Changes and appendages to the contract have to be done in written form, in order to be effective.

Should individual provisions of a contract be or become ineffective or contestable, the contract remains otherwise undisturbed by this partial ineffectiveness.

13. Place of judgement is Aschaffenburg.

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