General Terms and Conditions of Railrelease BV for the leasing of freight wagons – the GTC RRL

1 Scope of application, leased object, purpose of the lease, General Contract of Use for Wagons (hereinafter referred to as the “GCU”)

1.1 These General Terms and Conditions (hereinafter referred to as the “GTC RRL”) form an integral part of any lease agreement (hereinafter: the “Lease Agreement”) for rail freight wagons (hereinafter referred to as “Wagons”) between Railrelease (RRL) BV (hereinafter referred to as the “Lessor”) and Lessee. The Lessor and Lessee are hereinafter together also referred to as the “Parties”. GTC RRL also apply if the Lessor leases wagons to the Lessee on a supply basis whereby no separate lease agreement is concluded. Insofar as there would be any contradiction and/or inconsistency between the GTC RRL and the Lease Agreement, the respective provisions of the Lease Agreement will prevail. The GTC RRL shall apply to all future leases even if no express reference is made to their validity upon expiration of the respective Lease Agreement. Any subsequent agreements, reservations, invalidations, amendments or additions require written confirmation (e.g. by e-mail) by the Lessor before they can come into effect. This also applies to the waiver of the statutory written form.

1.2 The Lessee’s general terms and conditions shall only apply if expressly confirmed by the Lessor and these must be incorporated in the respective Lease Agreement.

1.3 As keeper of a wagon, Railrelease is party to the GCU which regulates the relationship between the wagon keeper and the railway undertaking (hereinafter referred to as “RU”) as wagon user. If reference is made to the GCU in these GTC RRL or in the Lease Agreement, the GCU version valid at the time shall apply: that version will be accessible on the internet at www.gcubureau.org/contract

2 Handover, transfer of risk, handover record, shortcomings

2.1 The Lessor shall deliver the Wagons to the Lessee at the agreed handover station on the agreed handover date. The costs of transfer to the handover station and stabling costs after the handover date shall be borne by the Lessee. The handover day shall be deemed to be the agreed day that Wagons are delivered at a handover station; in such a case, the Wagons shall be deemed to have been handed over at the time they are delivered, so that the Lessee shall assume the costs and risks from that point in time onwards. If the handover cannot be performed on the planned handover day because the Lessee is unable to accommodate the Wagons or the Wagons cannot be stabled, the day on which the Lessor offers the Lessee delivery shall be deemed to be the handover day.

2.2 Unless the Lessor expressly commits to a fixed date for the handover of a Wagon or Wagons, handover date information provided will only be considered a guideline and not represent a binding commitment to hand over a Wagon or Wagons at a specific time. The Lessor cannot be held liable for a delayed handover in such a case, unless such delay is a result of intent and/or gross negligence from the side of the Lessor.

2.3 The Lessor shall deliver the agreed number and type of Wagons, in running order, in usable condition and free from freight residues. The Lessee is obliged to ensure that the Wagons are fit for use and in accordance with the Lease Agreement at the time of handover. Any shortcomings must be documented in the handover protocol and reported to the Lessor within 5 working days after receipt of the Wagons. If the Lessee discovers shortcomings in respect of the Wagons after handover which is not noted in the handover protocol, the Lessee must notify the Lessor of this in writing with adequate photographic evidence within 5 working days, otherwise the Lessee shall lose the right to compensation from the Lessor resulting from such shortcomings and will have to compensate any damage resulting from the delayed notification.

2.4 If the Lessee fails to inspect the Wagons, it will be deemed that the Lessee has accepted them in the condition recorded in the handover protocol presented by the Lessor, even without a signature of the handover protocol by the Lessee.

2.5 The Lessee may refuse to take delivery only if there are defects which prevent operation of a Wagon. In all other cases, especially when shortcomings do not prevent the Wagon from being operated, the Wagon shall be deemed to have been handed over at the time the handover protocol is signed. The lease fee will be due from that day.

2.6 If the handover of all Wagons becomes unfeasible on a permanent basis as a result of force majeure (see section 6.4), the Lessor shall be entitled to reduce the number of Wagons leased to include those Wagons which cannot be delivered on a permanent basis. Permanent incapacity to deliver shall be assumed if the Lessor is unable to provide Wagons to the Lessee for more than four months due to lack of procurable materials or due to other cases of force majeure.

2.7 Upon handover of the Wagons, the Lessee is liable for loss of or damage to the wagons. Risk borne by the Lessee also includes circumstances unattributable to any of the parties, force majeure and third-party liability.

2.8 Where a shortcoming is present at the time of handover or arises subsequently, and if the Lessor is responsible for such shortcoming, the Lessor may elect to remedy the shortcoming or to supply a replacement Wagon. If the shortcomings do not interfere with the operation of the Wagon and do (also) not affect the safety, the Lessor may determine the time when the shortcomings are to be rectified.

2.9 If any shortcomings relating to the Wagon are discovered during the handover, for which the Lessor is responsible and which would render the Wagon unsuitable for its intended and contractually agreed use, the Lessee shall be exempted from obligatory payment of the lease fee with effect from the date of written notification of the shortcomings. In the case of other shortcomings that are not fully attributable to the Lessor, the Lessee may exercise their rights at any time in the future insofar as the Lessor will not have remedied the shortcomings or provided a replacement within three months of the Lessee’s notification of the shortcomings.

3 Lease term, termination

3.1 The Lessor provides the Wagons to the Lessee at the agreed lease rate for the agreed lease term.

3.2 The lease term commences on the day of handover as stated in the Lease Agreement, unless the Parties have agreed otherwise. Reference is made to section 2.1 above. If the handover does not take place on the agreed handover date, the lease term shall nevertheless commence unless non-delivery is attributable to the Lessor itself.

3.3 The lease term ends on the agreed day of return as stated in the Lease Agreement unless the Parties have agreed otherwise. Should the return of the Wagons not take place on the agreed return date for reasons attributable to the Lessor, the lease term shall nevertheless end on the agreed return date. If the return does not take place on the same date for any other reasons, the lease term shall end with the effective return by the Lessee. With the exception of consequential damage, the Lessee shall be liable for any damage and additional costs incurred as a result of the delayed return of the Wagons.

3.4 Each lease agreement has a fixed term and can be terminated by either party with a notice period of 3 months before the end of the lease term. In the absence of such notice of termination, the Lease Agreement shall automatically be renewed under the same conditions for the same period as in the originally agreed term, but for a maximum of 1 year. The lease price will be increased by 3% for the renewed term.

• 3.5 An ordinary termination of the Lease Agreement is not possible before the end of the lease term. Either party may with good cause make use of an extraordinary termination of the Lease Agreement with effect from a date before the end of the lease term. Good cause for termination by the Lessor includes, but is not limited to, the following circumstances:
  • the Lessee is in default of its payment obligation for a period exceeding 30 days.
  • the Lessee fails to comply with agreed maintenance or repair obligations as stipulated in the Lease Agreement or does not fulfil the obligation to provide information or – despite notice issued by the Lessor in writing – continues to breach other essential obligations pursuant to the Lease Agreement, including the GTC RRL.
  • the Lessee is the subject to enforcement measures, especially where they relate to the Wagon leased to the Lessee.
  • insolvency and/or winding up proceedings against the Lessee are pending and/or have been initiated.

3.6 Any termination has to be in writing (e.g. e-mail) and served to the other party.

4 Lease, payment modalities

4.1 The Lessee shall pay the Lessor the agreed lease fee per Wagon and for the number of days during the lease term.

4.2 The Lessor shall always send the invoice for the respective month to the Lessee at the beginning of the month. The monthly lease fee is due in advance with a payment period of 30 days after the invoice date.

4.3 The lease fee shall be paid without deduction and/or any set off, no later than the due date stated in the invoice. The Lessee is not entitled to a set-off.

4.4 In the event of loss or damage to a Wagon for reasons for which the Lessor is not liable, the Lessee shall remain obliged to pay the lease fee and in such case is not entitled to terminate the Lease Agreement.

4.5 The lease fee is exclusive of value added tax (VAT), withholding tax, customs duties or other direct or indirect taxes and levies, insofar as these are applicable. Any such costs arising during the course of the lease, even after expiration of the Lease Agreement, shall be borne by the Lessee. If the Lessor receives less than the agreed lease fee due to withholding tax or similar levies, the Lessee shall be obliged to pay the corresponding difference.

4.6 During the lease term, all freight and other charges as well as costs arising from the transport and stabling of Wagons shall be borne by the Lessee.

4.7 The Lessor, as keeper of the wagons, is responsible for ensuring that all Wagons always comply with the applicable and current technical standards during the rental period. Should the Lessor need to make changes to the leased Wagons to ensure that they comply with legal or regulatory guidelines throughout the rental period (“Necessary Technical Adjustments”), the Lessor is authorised to adjust the rent based on the expenses incurred as a result of these adjustments. The Lessor must inform the Lessee of the type, scope and duration of the relevant Necessary Technical Adjustments and the resulting costs. If the technical life span of the Necessary Technical Adjustment exceeds the remaining rental period of the Wagon concerned, the expenses shall be calculated in proportion to the technical life span and the remaining rental period. The adjustment of the rent shall take effect at the end of the month in which the adjusted vehicle is again available to the Lessee.

5 Deployment and use of Wagons, right of inspection, wagon markings, subleasing, transfer, provision

5.1 The Wagon is at the sole disposal of the Lessee during the lease term. The keeper’s right of access in accordance with Art. 9 GCU remains unaffected. The use, disposition and stabling of Wagons during the period from handover to return shall be the responsibility of the Lessee who is to bear the expenses.

5.2 The Wagons are to be handled with proper care and responsibly during the lease term. They can only be used for their intended purpose and in conformity with the provisions in the technical specifications, operating and maintenance manuals as well as the GCU’s provisions. Furthermore, all official regulations and instructions, relevant dangerous goods stipulations and the UIC loading guidelines are to be adhered to. The Lessee is obliged to enforce the obligations set out in the first and second clauses of section 5.2 among all parties handling the wagon during the lease term, in particular the RUs using the wagon.

5.3 The lease fee and maintenance schedule is based on a maximum mileage of 50,000 km for each Wagon per annum. This assumes wagon use with average types of goods and infrastructures under normal operating conditions. If the lease term is less than 12 months, a maximum permitted mileage will apply calculated on a pro rata temporis basis (days hired ÷ 365). The Lessor will evaluate the mileage by means of telematics devices installed on the Wagons. At the request of the Lessor, and no more than quarterly, the Lessee shall report the mileage for the elapsed period in the format specified by the Lessor (year, month, wagon number, kilometres). The Lessee must provide the Lessor, on request, with proof that the mileage of the Wagons has been correctly determined and documented, together with details of how this was achieved. The Lessee is aware of their information obligations according to article 15 of the GCU.

5.4 If the agreed maximum annual mileage is exceeded, the Lessee will be required to pay an additional fee as set out in the Lease Agreement. The Lessee shall not be released from their payment obligation if the respective Wagon travels less than the agreed maximum mileage in another rental year; in this context the Lease Agreement does not permit offsetting lower distances travelled by other Wagons. The additional fee for increased mileage travelled during the previous year will be invoiced in the 1st quarter of the following year or at the end of the lease term, the cut-off date is 31.12 of a year. In the event of extraordinary wear and tear of a Wagon which is not due to exceeding the aforementioned mileage but due to other circumstances, such as the use of a Wagon on exceptionally steep or narrow-curve infrastructures or on railtrack construction sites, the Lessor shall negotiate with the Lessee whether additional fees or, alternatively to the additional cost structure, an increased lease fee shall apply.

5.5 The Lessor may at any time, after obtaining prior consent from the Lessee (not to be unreasonably withheld), inspect the Wagons themselves, or authorise an agent to examine them. The Lessee shall allow and facilitate the Lessor, or a third party commissioned by the Lessor to carry out an inspection at any time. The Lessee’s operational interests shall be taken into account as much as reasonably possible.

5.6 The Lessee is not entitled to use Wagons in areas of conflict or in war zones. This also applies if a region or country becomes a conflict or war zone during the lease term or if there is war in only part of a country.

5.7 Proprietary or keeper markings and any other inscriptions on Wagons are not to be altered or removed by the Lessee. If the Lessee intends to modify or retrofit a wagon, prior written consent is to be obtained from the Lessor. All expenses related to modifications and/or retrofitting are to be borne by the Lessee. These costs will include, but not be limited to restoring the Wagons to their original condition upon expiration of the Lease Agreement (restoration), all maintenance costs for modified components as well as the costs for necessary permits.

5.8 Any subleasing of Wagons will require prior written consent from the Lessor. The Lessee is bound to notify the Lessor in writing without delay upon expiration of a sublease. The Lessee is responsible for all costs and risks associated with subleasing. The Lessee shall not be released from their obligations under the agreed Lease Agreement during the subleasing term.

5.9 Only with the Lessor’s written approval shall the Lessee be permitted to provide Wagons to RUs that are not GCU members. The Lessor shall also have the discretional authority to prohibit the provision of Wagons to certain RUs, irrespective of whether these are GCU members or not. Should the Lessor so request, the Lessee shall provide information on which RUs are used for the conveyance of the wagons. 5.10 If a Wagon is operated by a RU that is not a GCU member and for which the Lessor has not given written approval, the Lessor shall be entitled to terminate the Lease Agreement with immediate effect relating to the Wagons concerned.

6 Liability of the Lessor, Force Majeure

6.1 The Lessee will only be able to claim for damages against the Lessor if such claim is based on the Lessor’s intentional wrongdoing or gross negligence or if the Lessor is liable under mandatory legal provisions. This shall not apply in the event of a breach of material contractual obligations, i.e. obligations the fulfilment of which is a prerequisite for the proper performance of the Lease Agreement and on the observance of which the Lessee may regularly rely. Where such a breach occurs, damages will be limited to foreseeable and usual damage.

6.2 Insofar as the Lessor is not liable under section 6.1, the following shall apply: the Lessor’s liability for damages resulting from delay shall be limited to an amount not exceeding the daily fee for the respective Wagon. The Lessor’s liability for damage resulting from delay and other claims of the Lessee for damages under the Lease Agreement as well as the Lessor’s liability for shortcomings existing at the beginning of the lease term or occurring during the lease term shall be limited to a total amount of three months’ lease fee for the respective Wagon.

6.3 The Lessor shall not be liable to the Lessee if and to the extent that the Lessor’s failure to satisfy their obligations as wagon keeper, Lessor or ECM (Entity in Charge of Maintenance) was due to the Lessee’s breach of their obligations to provide information or to cooperate.

6.4 In the event of Force Majeure, the Lessee will not be entitled to lodge a claim against the Lessor based on the Lease Agreement nor on any other grounds. Instances of Force Majeure include, but are not limited to, natural disasters, war, hostilities, war-induced damage, civil unrest, riots, sabotage, strikes and lockouts during labour disputes or insolvency (including the Lessor’s suppliers and subcontractors), robbery, pillage, epidemics, pandemics, confiscation or any other seizure of Wagons resulting from official or governmental measures.

7 Liability of the Lessee

7.1 During the lease term, the Lessee shall be liable to the Lessor for all damage caused by failure of the Lessee or third parties to use the Wagons in a manner that is not in accordance with section 5.2 or that is in any other way contrary to the Parties’ agreement or the law.

7.2 The Lessee shall also be liable for any damage caused to third parties through the Wagon or its load, unless the Lessor is responsible for the damage. The Lessee shall indemnify the Lessor against any such liability from third party claims.

7.3 If the Lessee fails to fulfil their obligations with regard to handling, care and maintenance of a Wagon, the Lessor shall be entitled to take necessary measures themself in respect of the same Wagon. Costs resulting from the above (e.g. transport costs to and from a workshop, labour, repairs and spare parts) shall be borne by the Lessee.

7.4 The Lessee is liable, regardless of the cause, for the loss or partial or complete destruction of a Wagon and for any consequential damage associated with such a claim (e.g. salvage costs). Where loss or damage occurs, the Lessee is bound to notify the Lessor by e-mail without delay of such loss or damage to dispo@railrelease.com and must promptly provide the Lessor with all necessary documentation for the entitlement of any claims against third parties (e.g. a damage report pursuant to Appendix 4 of the GCU).

7.5 If a Wagon is damaged or lost while in the custody of a RU that is not a member of the GCU, the Lessor shall not be adversely affected as a result. In such a case, the Lessee shall indemnify the Lessor as if the RU in question had joined the GCU, in addition to the liability regulated in these GTC RRL.Page 7 of 12 Version 001a // 01.11.2023

7.6 In the event of loss of a Wagon, the Lessee shall be obliged to pay monetary compensation at the Lessor’s discretion based on the insurance value in accordance with section 8.2. The replacement value as defined in Annex 5 of the GCU shall only apply in the absence of an insurance value.

7.7 In the event of partial damage to a Wagon, the Lessee shall reimburse the Lessor the costs of the complete restoration of that Wagon. In the event of complete damage to a Wagon, which precludes its restoration, section 7.6 shall accordingly apply. The provisions of the GCU shall additionally apply

7.8 If and to the extent that the Lessee has paid full compensation to the Lessor, the Lessor shall, upon request from the Lessee, assign any claims it may have against third-party claimants based on the same incident involving damage and up to the amount paid by the Lessee. However, the Lessor assumes no liability for the validity and enforceability of such claims. The same applies to the Lessor’s claims against third parties for compensation for loss of use – for this purpose, as set out in Appendix 5 of the GCU – in the event that the Lessee has continued to pay the lease fee to the Lessor during the period of loss of use of a Wagon.

7.9 The Lessee shall, upon request from the Lessor, assign any claims against third parties who were responsible for loss or damage to a Wagon or who could be held liable for doing so. 7.10 The Lessee shall also be liable for the consequences of a breach of their obligation to provide information to the Lessor, irrespective of whether such obligation is based on the Lease Agreement, the GCU or regulatory or statutory provisions. 7.11 The Lessee shall, upon an initial request, indemnify the Lessor in respect of any third-party claims arising from the use of a Wagon. The same applies to any obligation to pay administrative costs or fines, which supervisory authorities impose on the Lessor resulting from the condition of a Wagon where the Lessee is responsible for that condition. In the event of contributory negligence on the part of the Lessor, the amount of indemnity payable shall be reduced by an amount proportionate to the Lessor’s contributory negligence.

8 Liability insurance, property insurance

8.1 In addition to legally required insurance, the Lessee has to take out insurance which fully covers the liability assumed by the Lessee under these GTC RRL in accordance with section 7 for damage to a Wagon and/or damage to third parties for the duration of the rental term. The Lessee shall present proof of insurance to the Lessor upon signing the lease agreement and upon any request later during the rental term. Unless otherwise agreed between the Parties, the Lessee is obliged to take out sufficient or supplementary comprehensive/property insurance cover. The Parties shall make a corresponding provision in the Lease Agreement.

8.2 Should the Lessee take out comprehensive insurance through the Lessor, this shall be comprehensive “all-risk” insurance. A deductible of €25,000.00 per Wagon agreed by the Lessor in the event of damage is to be borne by the Lessee in the event of damage unless the Lessor is liable for this in accordance with section 6. The Lessor has not agreed to a waiver of recourse with the Lessor’s property insurer.

8.3 The Lessor shall inform the Lessee of the insured value of the Wagons in due time before signing the lease agreement and upon request during the rental period.

9 Revision, intermediate inspections

9.1 Revision is planned work as stipulated by law or by the authorities, the purpose of which is to ensure that a Wagon is in appropriate technical condition. This has to be carried out by the Lessor at the Lessor’s expense.

9.2 The Parties shall reach agreement in writing on when the respective Wagon will be available for revision at least four weeks before revision work is due to begin. The Lessee is bound to deliver the aforementioned Wagon in an empty, clean, safe-to-operate and testable condition to a workshop named by the Lessor. The Lessor will designate the workshop and the date that the Lessee is to deliver the Wagon to that workshop, taking into account the period needed for revision, whether the workshop is licensed, the workshop’s available capacity and the distance to its location. Should the Lessee breach any of the obligations in section 9.2, the Lessee shall bear any additional costs incurred as a result.

9.3 The Lessor shall not provide the Lessee with a substitute Wagon during the service period. The obligation to pay the lease fee shall remain unaffected during the service period; this obligation shall, however, be suspended as from the 30th day following handover of the respective wagon to the designated workshop and remain suspended up to and including the day on which the Lessor notifies the Lessee in writing of the service completion by the workshop. The prerequisite for this interruption of the lease payment is that the respective wagon is delivered empty, clean and on schedule to the designated service workshop.

9.4 If damage or shortcomings are ascertained during the service, which under the lease agreement provisions and these GTC RRL are to be borne by the Lessee or should the Wagon not be in the condition stated in section 9.2 at the time when it is delivered to the workshop, the Lessee shall bear the costs in connection therewith. The Lessor shall notify the Lessee in writing of such shortcomings and the related costs. If the time spent in the workshop exceeds 30 days due to damage for which the Lessee is responsible, the lease fee shall not be suspended in accordance with section 9.3.

9.5 The Lessor reserves the right to carry out intermediate inspections on some of the leased Wagons in order to check the relevance of the planned inspection intervals. The Lessee is bound, when requested by the Lessor, to make Wagons available so that spot checks may be conducted. The Lessor will forward a such request to the Lessee at least two weeks prior to the planned intermediate inspection. The Parties shall agree on a procedure for the provision of the agreed Wagons, which takes into account their mutual interests. The Lessor shall bear the costs of the transport to and from the agreed place of inspection. The obligation to pay the lease fee for the respective Wagon in question will be suspended from the day of handover to and including the day of return.

10 Maintenance, repair

10.1 “Wet lease” model

10.1.1 Insofar as a “wet lease” is agreed in the Lease Agreement, measures relating to ongoing maintenance work (mandatory or scheduled revisions as well as repairs) shall be arranged by the Lessor and at the Lessor’s expense, unless the Lessee is required to bear the costs as stipulated in the lease agreement or the GTC RRL.

10.1.2 The Lessee shall, at their own expense, transfer the Wagons to a workshop to be designated by the Lessor and retrieve the Wagons after completion of the necessary work. Sections 9.2 to 9.4 shall apply accordingly with the proviso that both Parties agree on the scheduling of the Wagons at least 2 weeks before the maintenance date.

10.1.3 Preventive Maintenance Actions (PMA): The Lessee is obliged, at the Lessee’s own expense, to organise and execute preventive maintenance as per the Lessors instructions. The Lessor will provide the PMA instructions to the Lessee as per the start of the “wet lease” contract. The Lessee shall follow the PMA instructions for each of the Wagons to ensure ongoing operational safety. The Lessee shall also be responsible for orderly treatment of each Wagon, especially for cleaning Wagons and removing any freight residues.

10.1.4 The Lessee’s liability under section 7 shall remain unaffected. If the Lessee is a RU and uses a Wagon, their liability and their obligation to bear costs in accordance with GCU regulations shall remain unaffected in addition to their liability under the Lease Agreement and the GTC RRL.

10.1.5 The Lessor shall bear the cost of materials where durable spare parts, such as buffers, control valves and suspension springs necessitate replacement due to age. The same applies to wheelsets, however all damage occurring to wheelsets as defined in Annex 12 of the GCU shall be borne by the Lessee, unless the Lessee is able to prove that a defective brake system as part of the respective Wagon was the cause of the damage or that the Lessor was responsible for the damage.

10.1.6 The costs related to spare parts deliveries (spare parts costs, reconditioning costs, transport, customs and handling costs) shall furthermore be borne by the party responsible for the maintenance in the respective individual case. If the Lessor procures spare parts on behalf of the Lessee and has them delivered, or undertakes measures on the Wagons on behalf of the Lessee for which the Lessee is responsible according to the Lease Agreement including the GTC RRL, the Lessor shall invoice the Lessee for the costs incurred plus the legally applicable value added tax (VAT).

10.1.7 Should charges or subsequent costs arising from spare parts, maintenance, servicing and repair be invoiced directly to the Lessor by third parties, the Lessor shall be entitled to charge these costs to the Lessee in accordance with the GTC RRL.

10.2 “Full service” lease model

10.2.1 Insofar as “full service” is specified in the Lease Agreement, the provisions relating to the “wet lease” model pursuant to sections 10.1.1 to 10.1.7 shall apply with the exception of section 10.1.3 clause 1.

10.2.2 The Lessor must, at their own expense, carry out Wagon maintenance, including the obligation to lubricate relevant Wagon parts as well as replace brake blocks and to ensure continuing operational wagon safety. The Lessor shall carry out such work as part of mobile maintenance in accordance with a previously agreed maintenance plan at a location and time agreed in writing between the Lessor and the Lessee. The Lessee shall bear any additional costs incurred should there be any agreed deviation from the agreed maintenance plan.

10.2.3 The Lessee shall place the Wagons at the Lessor’s disposal. The maintenance intervals, the location where preventive maintenance is to be carried out and the scope of the preventive work shall be agreed with the Lessee at the beginning of the lease term and recorded in writing. If the Lessee does not make the Wagons available to the Lessor as agreed, all resulting costs and related consequences shall be borne by the Lessee.

10.3 If the Lessee is responsible for carrying out maintenance, such work on the Wagons is to be carried out exclusively by ECM IV-certified workshops, unless otherwise agreed between the Parties. Only original parts or Lessor (ECM II) approved spare parts may be used. The work shall be carried out in accordance with the European VPI-EMG guidelines and the maintenance instructions provided by the Lessor.

11 ECM (Entity in charge of maintenance)

11.1 Pursuant to Regulation (EU) No. 779/2019 (VO 779) in conjunction with applicable national railway law, an ECM must be specified for every Wagon. Unless provided otherwise, the Lessor shall assume the role of ECM in relation to the safety of the Wagons leased out under the Lease Agreement.

11.2 The Lessee is to support the Lessor at all times in fulfilling their ECM obligations. In particular, the Lessee shall fulfil their contractual and legal obligations to notify, to inform and to document.

12 Return, expiration of lease, acceptance of return, compensation

12.1 The Wagons shall be handed over to the Lessor at the return location agreed in the Lease Agreement where they will be received by the Lessor. Unless a different place of return is expressly agreed, the address provided by the Lessor shall be deemed the place of return. The carriage costs to the place of return shall be borne by the Lessee. The Lessee shall notify the Lessor in writing of the estimated date of arrival of the Wagons at least two weeks in advance.

12.2 The Lessee shall deliver all the leased Wagons in proper operating condition and, within the parameters of the “Wet Lease” model, with the minimum brake block thickness as specified in the Lease agreement. The Wagons are to be returned free from damage, cleaned and free of any freight residues as well as any images, lettering or other signs affixed by third parties.

12.3 The end of the lease term shall be the day on which a return protocol is drawn up during the return by the Lessor, and not before the last day of the negotiated lease term. The handover protocol (section 2.3) shall be used to document the return and the condition of the Wagons. The Lessor will not be obliged to take back the Wagons before the expiry of the agreed lease term. The Lessor undertakes to take back the Wagons within 5 working days after the last day of the agreed lease term. Each party to the lease agreement shall receive 1 copy of the signed return protocol. The Lessor may refuse to take back wagons due to substantial shortcomings.

12.4 If the Lessee fails to return a Wagon in due time at the end of the agreed lease term or if the Lessor refuses to take back a Wagon due to substantial shortcomings, the Lessee will be in default without the necessity for a reminder. In this instance the Lessee shall be obliged to continue paying the agreed lease fee for each single day that the Lessee retains the Wagon. The lease fee, as per the above sentence, shall be increased by 25% for the first 2 months or part thereof, from the 3rd month onwards the lease fee shall be increased by 50%. The entitlement to claim further damages is not excluded. The continued payment of the lease fee shall not be deemed a tacit renewal or extension of the Lease Agreement; such a tacit renewal or extension is hereby excluded.

12.5 The Lessee shall reimburse the Lessor for damages and all expenses arising as a result of the Wagon not being returned in a condition that is in accordance with the Lease Agreement, unless the Lessor is responsible for the non-compliant condition. If, in such a case, necessary cleaning, repairs or inspections by railway officials have to be carried out after return, the Lessee shall continue to pay the Lessor the lease fee for up to 60 days from return until completion of the said work. The entitlement to claim for damages in excess thereof is not excluded. In such cases the limitation period is 3 years from the return of the respective Wagon. 

13 Data collection

During the use of the Wagons by the Lessee, the Lessor may collect the movement and locations of the Wagons leased using GPS for maintenance planning purposes. This is done anonymously. There is no reference to persons as defined in EU Regulation 2016/679.

14 Collateral

In order to secure any claim that may arise from the relevant Lease Agreement, the Lessee must present a guarantee or surety from an internationally accredited bank located in the EU or Switzerland before handover of the Wagons. This bank must (i) have an investment grade rating of at least BBB (S&P and Fitch) or Baa2 (Moody’s) and (ii) cover at least three (3) gross monthly rents per Wagon in its amount. The Lessee commits to maintaining this guarantee or surety for the entire duration of the Wagon lease.

Should this guarantee not be possible, the Lessee must provide a security deposit equal to three (3) gross monthly rents per Wagon before handover of the Wagons. Upon proper return of the Wagons, this deposit will be promptly returned to the Lessee by the Lessor (no later than three (3) months after the Lessee has settled the last invoices).

15 Choice of law, place of jurisdiction

15.1 German law is applicable to these General Terms and Conditions.

15.2 The place of jurisdiction for disputes arising out of and in connection with a lease agreement is Düsseldorf, Germany. The Lessor may also lodge an action against a Lessee at the Lessor’s place of jurisdiction.

16 Additional provisions

16.1 Amendments of and additions to this Lease Agreement are to be made in writing. This shall also apply to any waiver of the statutory written form.

16.2 Both Parties agree to maintain confidentiality with respect to all information and knowledge about the business and trade secrets of the other party, including the content of the agreed Lease Agreement, of which it becomes aware, directly or indirectly, during the performance of the Lease Agreement and agree not to disclose the same to a third party without the other party’s written consent. Both Parties agree to subject their employees to a comparable obligation of confidentiality

16.3 The Lessee agrees that the personal data voluntarily provided such as name, address, telephone number and contact details will be processed, stored, transmitted and used by the Lessor if this is necessary for conducting business; the Lessee shall be entitled to inspect this data.

16.4 In the event that a provision of these GTC RRL should be invalid or unenforceable for any reason whatsoever, this shall not affect the validity of the remaining provisions. In such a case, the remaining provisions of the GTC RRL are to be interpreted as if they had been concluded without the ineffective clause or clauses.