Imprint & Terms & Conditions

General Terms and Conditions:

SK Rail GmbH & Co. KG

General Terms and Conditions of Sale

Hereinafter referred to as SK RAIL

1. Validity of terms and conditions, written form

1.1 SK RAIL delivers all goods and undertakes all services exclusively on the basis of these General Terms and Conditions.

1.2 These General Terms and Conditions also apply to all future contracts between SK RAIL and the customer even if they are not separately agreed again. They replace all terms and conditions that were previously agreed between SK RAIL and the customer.

1.3 Terms and conditions of the customer that are contrary to or deviate from these General Terms and Conditions do not become part of any contract between SK RAIL and the customer. SK RAIL expressly rejects their applicability. This also applies, if SK RAIL carries out an order without reservation whilst being aware of contrary or additional terms and conditions of the customer. SK RAIL equally does not accept terms and conditions even if SK RAIL refers to or replies to correspondence that contains terms and conditions of the customer or a third party or that makes reference to such.

1.4 Separate agreements, additions, modifications and supplementary agreements only apply if confirmed by SK RAIL in writing.

2. Offer and conclusion of contract

2.1 Offers and prices of SK RAIL are not binding and subject to change. Prices and specifications become binding at the moment of conclusion of contract.

SK RAIL reserves the right to make technical changes and changes in shape, colour, and/or weight to goods already ordered; any such changes will be within reasonable limits.

2.2 SK RAIL is entitled to accept a contract offer made through an order by means of an order confirmation within two weeks following receipt of such order. The order confirmation can be made in writing, or by supply of the goods and/or services ordered. Confirmation of receipt of an order does not constitute a binding acceptance of such order.

2.3 If and to the extent that the customer wants SK RAIL to conduct product testing measures, the type, amount and cost of such measures have to be agreed upon in writing. If no such agreement was made at the moment of order confirmation, all cost for such testing measures shall be borne by the customer.

2.4 SK RAIL is entitled to use sub-contractors for the fulfilment of all or parts of its obligations vis-á-vis the customer. Such subcontractors shall be considered as vicarious agents in the terms of § 278 of the German Civil Code (BGB).

3. Delivery time, time of performance, force majeure

3.1 Delivery times and times of performance stated by SK RAIL are to be understood as indicative, non-binding, subject to change and subject to self-supply. Damage claims based on non-observance of delivery times and times of performance are excluded, except in cases where delivery times and/or times of performance have been agreed as “fixed” expressly and in writing.

3.2 If and to the extent that SK RAIL and the customer entered into a purchase or other agreement, but did not bindingly agree on term, production batch size and/or acceptance dates, SK RAIL can, after a period of four weeks after the order confirmation at the latest, request customer to enter into a binding agreement on these issues within 21 days after such request.

3.3 SK RAIL may render partial performances unless such partial performance is not of interest for the customer.

3.4 Insofar as a delivery delay or delivery time was agreed as “fixed”, it refers to the time of transfer to the carrier or freight forwarder or to other companies charged with the transport of the goods. In all other cases, delivery delays and deadlines are deemed to have been observed if SK RAIL was in a position to dispatch the goods in time, insofar as this ability to dispatch was communicated to the customer.

 3.5 If and to the extent that a timely delivery is prevented by either (i) disturbances in the operations of SK RAIL or its subcontractors that are demonstrably of material influence on the operations or (ii) labour disputes in its own organisation or that of its subcontractors, the delay for the performance of SK RAIL’s obligations extends for the duration of such disturbance, but not longer than 14 days.

3.6 If at SK RAIL circumstances prevail, for which SK RAIL is not accountable and that materially impede or make impossible the fulfilment of its obligations by SK RAIL, SK RAIL shall be entitled to rescind the contract, if such impediment is not only of temporary nature. In the event of an unavailability of products, SK RAIL will inform the customer immediately and will reimburse without undue delay any payments it may have received by the customer for such products until that date. In the event of a temporary impediment, the delay for delivery extends for the period of time of such impediment plus an appropriate additional delay.

3.7 If (i) SK RAIL has failed to meet a deadline, and (ii) the buyer sets an appropriate additional delay for delivery or performance, it is entitled, after this period has expired to no avail, to rescind the contract. In this case, statutory claims apply to both the consideration for Track Tec and the claims of the buyer, but only within the limits set in Section 8 below.

4. Dispatch and transfer of risk

4.1 The risk of accidental loss or accidental deterioration of the goods passes to the customer as soon as the object for delivery is handed over to the carrier or freight forwarder or to other companies charged with carrying out the dispatch. This also applies if SK RAIL pays for the transport. The clause is also applicable for partial deliveries.

4.2 If delivery or dispatch is not made for reasons that lie outside the responsibility of SK RAIL, the risk of accidental loss or accidental deterioration of the goods will pass to the customer as soon as SK RAIL reports to the customer its readiness to deliver.

4.3 Customer’s delay in accepting goods shall have the same legal consequences as the handing over of the goods.

5. Prices and payment

5.1 The prices agreed on the day of order, respectively, as far as applicable, the prices as per valid price list of SK RAIL shall apply. If applicable, the rate of Value Added Tax (VAT) applicable at such time as well as the costs for packaging and delivery are not included in these prices. The prices are understood EXW.

5.2 If and to the extent, the parties have not agreed otherwise, invoices of SK RAIL are payable net without deductions upon receipt.

5.3 If the payment period is exceeded, the customer will automatically be in default of payment without a reminder for payment will be necessary.

5.4 SK RAIL is entitled to request reasonable advance payments. 

5.5 SK RAIL can, at its discretion, set off payments of the customer against costs, interest and debts of the customer, and will in this case inform the customer about the way in which such set-off is being carried out.

5.6 The customer only has a right of set-off payment if its counter-claims (i) have been confirmed by final and irreversible judgment of a court, or (ii) are undisputed or are recognized by SK RAIL in writing.

5.7 The customer can only invoke a right of retention on the basis of its own counter-claims if the counter-claims relate to the same contractual relationship and if such counter-claim is established by a final court decision or recognized in writing by SK RAIL. However, the customer does have a right of retention if and to the extent that either (i) SK RAIL has violated its contractual obligations with intent or gross negligence or (ii) it has been determined that the product or service supplied is materially defective.

5.8 If (i) the customer is in default of payment with an amount of 10 % or more of all payments due or (ii) the customer ceases to be insured for payment on deliveries by a commercial credit insurance or (iii) there are reasonable doubts as to the credit worthiness of the customer, SK RAIL is entitled to make the performance of its obligations dependent on advance payments or collaterals.

6. Retention of title

6.1 SK RAIL retains title of ownership and property in delivered goods until all of its claims against the customer arising out of the current business relationship have been met in full. This also applies to goods which have been assembled or mixed with other goods. 

6.2. The customer is entitled to process and to sell the Reserved Goods, if this is part of his going concern and business and as long as SK RAIL is aware of this and as long as the customer is not in default of payment. The customer may not impawn unpaid goods or transfer title in unpaid goods by way of security. All claims arising from the resale or based on any other legal grounds in respect of the Reserved Goods (including all current account receivables) are hereby assigned to their full extent by the customer to SK RAIL by way of security. SK RAIL grants the purchaser revocable authorization to collect in his own name for the account of SK RAIL the claims assigned to SK RAIL. This authorization to collect claims will be revoked, if the purchaser does not fully comply with his payment obligations.

6.3 If third parties seize the Reserved Goods, the customer will advert such third parties to the fact that the Reserved Goods are property of SK RAIL and will notify SK RAIL immediately. Where the customer fails to comply with terms and conditions of the contract - in particular in case of defaults of payment - SK RAIL is entitled to take back the Reserved Goods or, where necessary, to demand the assignment of the customer’s right to possession in respect of third parties. The customer is liable jointly and severally with the third party for the reimbursement of the court and out of court costs of legal action pursuant to § 771 German Code of Civil Procedure (ZPO) or any provision of similar import applicable.

6.4 The redemption, repossession or execution of the Reserved Goods by SK RAIL does not in itself constitute a rescission from the contract.

7. Warranty

7.1 SK RAIL warrants the compliance with the specifications explicitly set forth in the order and order confirmation. All specifications are warranted according to the DIN norms and other applicable international norms. In offer documents and order confirmations, SK RAIL indicates measures and weights to the best of its knowledge. SK RAIL will perform the obligations set forth in the order and order confirmation with the diligence of a prudent merchant and with due regard to the applicable norms and stipulations. Beyond this warranty, SK RAIL only warrants qualities and/or characteristics specifically agreed on in writing between the parties. Claims made by the customer in respect of defects are only valid if it has properly observed its due obligations to check and complain under § 377 of the German Commercial Code (“HGB”).

7.2 The warranty period is one year commencing the date when the goods are delivered.

7.3 Apart from this, the statutory rules of warranty apply subject to the proviso that SK RAIL may, in its discretion, either repair or replace defective deliveries or services. The customer is only entitled to exercise its further statutory rights if (i) two attempts by SK RAIL to repair or replace have failed or (ii) such supplementary performance has been refused by SK RAIL or has not been carried out in an appropriate way; however, even then, only within the limits set in Para 8 below. If in such case the customer opts to rescind from the contract, the customer cannot prevail himself of any damage claims with respect to the defect. If the customer opts for damage claims, the defective object remains with the customer except where this is unreasonable or something else was specifically agreed on in writing between the customer and SK RAIL.

7.4 If and to the extent that SK RAIL’s obligations include or are composed of services to be performed for the customer in the meaning of § 631 of the German Civil Code (BGB), the acceptance by the customer of such work will take place in the plant of SK RAIL in which such work was performed. Upon notice of readiness for acceptance, the customer will conduct such acceptance at his own cost. To the extent possible and practical, the customer will agree conduct partial acceptances. SK RAIL can set an appropriate time limit for conducting acceptance. If no acceptance is conducted within such time limit, SK RAIL may in its discretion either (i) ship the respective good or (ii) store the respective good at the customer’s risk and expense; with either of these measures, SK RAIL’s payment claim becomes due. The customer is not entitled to refuse acceptance on ground of immaterial defects.

8. Liability

8.1 SK RAIL is liable for intent or gross negligence. For slight negligence, SK RAIL is only liable if it culpably fails to fulfil an essential contractual obligation, whereas the liability is limited to the damage that is predictable and would typically occur.

8.2 The mere delivery of defective goods as such does not constitute a failure to fulfil essential contractual obligations.

8.3 Further liability - irrespective of the legal nature of the claim made - is excluded. This applies particularly to claims based on violations of contract or tort.

8.4 SK RAIL is not liable for consequential damages such as lost profits or intangible damages.

8.5 Claims for damages against SK RAIL are statute-barred one year after delivery of the goods, unless is charged with intent or gross negligence. The statute of limitations for claims based on tort remains unaffected by this.

8.6 SK RAIL’s liability is generally limited to the extent of coverage provided by its company liability insurance. Upon request an overview upon the extend of coverage will be provided. Liability due to culpable harm to life and limb remains unaffected. This also applies to mandatory liability in accordance with the German Product Liability Act (ProdHaftG).

8.7 Insofar as the liability of SK RAIL is excluded or limited, this also applies in respect of the personal liability of employees, staff, free-lancers, representatives and agents of SK RAIL or acting on behalf of SK RAIL .

9. Indemnification

If and to the extent that SK RAIL performs any of its obligations, supplies of goods or services, on the basis of drawings or other specifications provided by the customer, and the performance of such obligations violates third parties’ rights, the customer will defend SK RAIL against and indemnify SK RAIL with respect to any such claims.

10. Confidentiality

The customer will use all business and company secrets that he is made or becomes aware of during the business relationship exclusively for the purpose of the performance of its agreements with SK RAIL. The customer will exploit such business and company secrets neither during nor after the business relationship and will keep them secret vis-á-vis third parties during and after the business relationship.

11. Applicable law, place of jurisdiction, severability

11.1. Applicable law for these General Terms and Conditions and all legal relationships is the law of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods. Place of performance for deliveries and payments is the respective plant of SK RAIL in which the ordered good is manufactured as set forth in the order or order confirmation. The exclusive place of jurisdiction for the customer for all disputes resulting directly or indirectly from or in connection with the contractual relationship is Munich, Germany. The same applies if the customer does not have a place of jurisdiction in Germany or if its place of residence or habitual abode is unknown at the time of the legal action. SK RAIL reserves the right to take legal action against the customer at his place of residence, his registered business address or where a branch office is located.

11.2 The statutory place of jurisdiction for payment default proceedings remains unaffected.

11.3 Should a provision in these General Terms and Conditions or a provision within the context of other agreements with the customer be or become invalid, the validity of all other provisions in these General Terms and Conditions or other agreements shall, in cases of doubt, be unaffected.

December 2018