General Terms and Conditions of Business
General Terms and Conditions of Business (GTB)
§ 1 Subject matter of the contract:
1. The subject matter of the contract is the undertaking of inspections specifically defined in the award of contract / confirmation of contract.
2. The sole reason for commissioning the expert is the purpose stated in the contract. The Client is required to give the Expert precise details of the purpose. Any of the Client’s terms and conditions of business which deviate from these general terms and conditions of business are only valid where the Expert expressly accepts them in writing.
§ 2 Rights and obligations
1. The Expert is to carry out the commission to make an inspection to the best of his knowledge and belief, regardless of its scope. The Expert can guarantee a specific success, and in particular here a result desired by the Client, only within the framework of an objective and impartial application of his expertise.
§ 3 Client’s obligation to cooperate
The Client is obliged to make available to the Expert all the required and desired documents, in good time and free of charge. He is required to support the Expert in his work and allow him access to the object of the survey.
§ 4 Subcontractor / assistants
The Expert is required to carry out the inspection using his own staff. Where essential to carrying out the contract the Expert at his own judgement may also involve subcontractors / assistants.
§ 5 Agreement on deadlines
1. The Expert is to submit the report within the period agreed with the Client. Deadlines for the submission of the report are only taken as having been bindingly agreed where they were confirmed to the Client in writing.
2. The time period for delivery begins where appropriate with the handover of all documents required for the preparation of the expert’s report and with the provision of any information which is required (cf. § 3).
3. Otherwise the Expert must submit the report in what is for him a reasonable amount of time. Agreements on deadlines are only valid when they were assured to the Client in writing.
§ 6 Professional secrecy
In the scope of his work on the expert’s report the Expert is required not to pass on to third parties any personal or business secrets confided to him. He must also preserve secrecy on facts not publicly available.
§ 7 Copyright
1. Insofar as any copyrights arise from the services of the Expert then in every case these remain with the Expert and are not a subject of this contract. To this extent the Client may use the expert’s report completed within the framework of the contract together with all lists, calculations and other details only for the agreed and intended purpose. The Client is allowed to copy and publish a report without further consultation to the extent that it is copied or published as a whole.
2. Any transfer of the report to Third Parties going beyond this, or another type of use, change to the text, shortening of the text or publication of the report requires prior, written approval from the expert.
§ 8 Duty of disclosure
The Client has the right to demand information from the Expert as to whether the inspection can be completed by the deadline, whether other resources of the client are required in addition to the initially agreed expenses and as to the current state of the inspection.
§ 9 Reimbursement of the Expert
1. The basis for reimbursement of the Expert is provided by the relevant provisions of the BGB (Bürgerliches Gesetzbuch – German Civil Code), the relevant provision of these GTB and the agreements concluded on the inspection contract.
2. The Expert can demand advance payment for the services and expenditures required of him. The Expert is entitled to commence his activities only after receipt of the advance payment.
3. The Expert has a right to invoice the Client for the expenses incurred by him which are necessary for the preparation of the expert’s report.
4. The full amount becomes due upon submission of the report to the Client or to a person nominated by him. A deduction is to be made for advance payments which have already made.
5. The Expert’s cost calculation can either be definitively agreed based on the value of the object or can be based on the hours and charge rates detailed in these GTB and based on the time involved. Rates will be specified in each relevant confirmation of contract.
6. The services of the Expert and the expenditure which the Expert invoices for are all subject to the current legally valid rates of VAT.
§ 10 Payments
1. The amount of the invoice becomes due upon presentation of the invoice or with the handover of the report. The amount of the invoice, without any deductions, is to be paid within 14 days. Should the payment of the invoice from the Expert not be made in time then the client is responsible for damages which arise to the Expert as a result of this delay. The Expert is then also entitled to demand payment of the legal interest on arrears (§288 BGB).
§ 11 Liability
1. In cases involving deliberate intent or gross negligence on the part of the contractor or one of his representatives or vicarious agents the Expert is liable in accordance with the legal provisions. Otherwise the Expert is liable only under the Product Liability Act, or as a result of death or injury to body or health, or as a result of a culpable breach of important contractual obligations. The claim to compensation for the breach of important contractual obligations is however restricted to the contract-typical damages foreseeable at the time of concluding the contract. In cases involving gross negligence the liability of the Expert is also limited to the contract-typical damages foreseeable at the time of concluding the contract where neither of the exceptions referred to in sentence 2 of this paragraph is present.
2. Liability for damages through services carried out to the Client’s legal goods, e.g. damages to other objects, is however completely excluded. This does not apply where there is intent or gross negligence or where there is liability as a result of death or injury to body or health.
3. The provisions of the preceding paragraphs extend to compensation for damages beside the service and compensation for damages instead of the service, regardless as to which legal grounds this may be based on, and in particular for deficiencies, breach of duties arising from the obligation or from tortious acts. They also apply to the right to the refund of wasted expenditure. Liability for delay is however based on § 12, liability for impossibility of performance on § 13.
4. The preceding provisions are not associated with a change in the burden of proof to the disadvantage of the Client.
5. The preceding provisions also apply in cases where the commission was awarded by telephone.
§ 12 Delay
The Expert is liable in accordance with the legal regulations for delay in providing the service in cases involving deliberate intent or gross negligence on the part of the Expert or one of his representatives or vicarious agents. However the liability of the Expert in cases of gross negligence is limited to the contract-typical damages foreseeable at the time of concluding the contract. Outside the cases provided for in sentence 1 the liability of the Expert arising for compensation of damages beside the service as a result of delay in the service is limited to a total of 100% and for the compensation for damages instead of the service to a total of 100% of the agreed payment of the Expert; other claims on the part of the client– even after the expiry of any deadline set to the Expert to perform the service – are excluded. The above restrictions do not apply in the case of liability resulting from death or from injury to body or health. The preceding provisions are not associated with a change in the burden of proof to the disadvantage of the Client. The above provisions also apply to the right to refund of wasted expenditure.
§ 13 Impossibility
In the event of impossibility of performing the delivery/service the Expert is liable in cases involving deliberate intent or gross negligence on the part of the Expert or one of his representatives or vicarious agents, in accordance with the legal provisions. However in cases of gross negligence the liability of the Expert is limited to the contract-typical damages foreseeable at the time of concluding the contract. Besides the cases in sentence 1 the liability of the Expert due to impossibility is restricted to compensation for damages and refund of wasted expenditure to a total of 100% of the agreed reimbursement of the Expert. Further claims on the part of the Client due to impossibility of delivery are excluded. The above restrictions do not apply in the case of liability resulting from death or from injury to body or health. The right of the Client to withdraw from the contract remains unaffected. The preceding provisions are not associated with a change in the burden of proof to the disadvantage of the Client.
§ 14 Limitation
1. The period of limitation for claims and rights arising from defects in the expert’s report – regardless as to which legal grounds they are based on – is one year. However this does not apply in cases of § 438 para. 1 no. 1 BGB (defect in title in immovable objects), § 438 para. 1 no. 2 BGB (structures, objects for structures), § 479 para. 1 BGB (entrepreneur’s right of recourse) or § 634 a para. 1 no. 2 BGB (structures or work the success of which lies in the provision of design or supervisory services for them). The time periods specified in preceding sentence 2 are subject to a limitation period of three years.
2. The limitation periods in accordance with para. 1 also applies to all claims for damages against the Experts which are related to the defect – regardless as to the legal basis on which the claim is based. Where claims for damages of any type exist against the Experts which are not related to a defect then for these the limitation period of para. 1 sentence1 apply.
3. The limitation periods in accordance with para. 1 and para. 2 apply with the following conditions:
a) The limitation periods generally do not apply in the case of wilful intent or of dishonestly withholding information of a defect or where the Expert has taken on a guarantee for the quality of the report.
b) Further, the limitation periods do not apply to claims for compensation for damages in cases of death or injury to body or health or to freedom, to claims based on the Product Liability Act, by a grossly negligent breach of a duty or by breach of important contractual obligations.
§ 15 Termination
1. A termination of the contract with the Expert is only possible on important grounds. Termination of the contract must be made in writing.
2. An important ground for termination arises where the Expert is in gross breach of the obligations to which he is subject by the regulation on experts.
3. Another important ground for termination arises where the Client does not comply with his obligation to cooperate or does not allow the expert access. A further important ground for termination arises where the Client impedes the Expert in his work.
§ 16 Place of performance/place of jurisdiction
Place of performances is the office address of the Expert. The sole place of jurisdiction for all disputes arising from the contractual relationship is the head office of the Expert.
§ 17 Final clauses
1. Should a provision of this contract be invalid due to legal regulations then the validity of the remaining provisions of this contract will not be affected thereby. Invalid provisions can be replaced by provisions which most closely approach the desired purpose and which are legally permissible. The Parties to the Contract undertake to accept such a replacement provision.
2. Changes or supplementary agreements to this contract must be made in writing.
3. These provisions also apply to all future contracts between the Parties to the Contract.