§ 1 Scope of application
(1) The Terms and Conditions of Contract shall apply to contracts between Sachverständigenbüro Widmayer GmbH and the experts employed there (hereinafter referred to as “SV”) and its clients concerning certifications, consultations, inspections and other orders, unless otherwise expressly agreed in writing.
§ 2 Subject matter of the contract
(1) The SV undertakes to perform the contractually agreed services with due care and in accordance with the principles of proper professional practice. The SV shall endeavour to make the wealth of experience gained from all previous assignments available to the client.
(2) The SV shall carry out the assignment given to him/her under his/her personal responsibility. The use of assistants under his supervision is allowed.
(3) The Client shall only use other experts in the SV’s area of responsibility during the term of the contract after obtaining the SV’s prior consent.
§ 3 Deadlines
(1) If performance deadlines have been agreed, their expiry shall commence as soon as the parties have agreed on all details of the project and the Client has handed over to the SV all documents, information or other materials to be handed over under the contract.
§ 4 Termination of the contract before the end of its period of validity
(1) The SV may be obliged by the rules of professional conduct to refuse an assignment on grounds of conflict of interest. This may also first become apparent during the reporting process. In this case, the SV shall no longer be entitled to payment, except in cases where the client has concealed information which would have been recognisable to the client with regard to a possible conflict of interest.
(2) If the contractual relationship ends earlier for any reason, the SE shall be entitled to payment for the work performed up to that point, except if the early termination is due to the sole fault of the SE.
(3) If the client is responsible for the early termination of the contractual relationship, the SV shall receive, in addition to the remuneration referred to in § 4.2, lump-sum compensation of 35% of the remuneration agreed for the services not yet performed, subject to further claims.
§ 5 Confidentiality and handover of documents
(1) The SV undertakes to respect the confidentiality of confidential information which he receives in the course of his work for the client. The fact that the order has been placed shall also be disclosed to third parties only with the client’s permission, if the client so requests in writing. 5.2 After his claims arising from the assignment have been satisfied, the SV shall, at the client’s request, hand over all documents which he has received from or on behalf of the client in connection with his work for the assignment. This shall not apply, however, to correspondence between the SV and his client or to documents already in the client’s possession, either in the original or as copies.
(2) The SV may make and retain copies or photocopies of documents which he returns to the client at the client’s expense.
§ 6 Duty of the client to cooperate
(1) In order to establish possible conflict of interest, the Client shall be obliged to inform the SV of all those directly or indirectly involved in the examination, as well as the potential recipients of the expert opinion, without being asked to do so.
(2) The client undertakes to provide the SV with all necessary support free of charge and in particular to supply the information required within the scope of the subject matter of the contract. In this regard, the client shall appoint a contact person who shall be responsible for coordinating appointments between the SV and the client’s employees and for obtaining documents. At the request of the SV, the client shall provide adequate working facilities at the place of the inspection.
(3) The client shall ensure that all documents necessary for the execution of the contract are submitted to the SV in good time, even without the SV’s special request, and that the SV is informed of all processes and circumstances that may be of importance for the execution of the contract. This includes, in particular, any other existing certifications in the same matter. This also includes documents, processes and circumstances which only become known during the audit.
(4) At the request of the SV, the client shall confirm the completeness of the documents submitted and the information and explanations given in a written statement.
§ 7 Acceptance
(1) The performance shall be deemed to have been accepted without reservation if the client does not object to it in writing to SV within a period of four weeks after handover.
(2) Partial services shall be regarded as accepted individually in accordance with § 7.1.
§ 8 Warranty
(1) Any defects must be notified to the SV in writing within 14 days of discovery, otherwise any warranty claims or claims for damages and any claims arising from an error as to the absence of defects shall be excluded. Any warranty claims shall expire six months after acceptance as defined in § 7.
§ 9 Liability
(1) Claims for damages by the client against the SV or vicarious agents on the grounds of delict, breach of contract or fault at the time of conclusion of the contract – except in the case of personal injury – shall only exist if the SV has acted with at least gross carelessness. Claims for damages in cases of slight fault and for cases of simple gross carelessness shall be excluded. The client must prove the fault of the SV.
(2) The SV shall only be liable if and insofar as damage caused in this way was foreseeable at the time the contract was concluded or the damaging event occurred, taking into account all known circumstances or circumstances unknown through gross fault.
(3) The SV shall not be liable for damage caused by the client’s failure to cooperate or to submit the necessary documents in accordance with § 6.
(4) Insofar as the SV is liable hereunder, the liability shall be limited to the contract value of the partial performance in the execution of which the damage was caused. No liability shall be accepted for indirect or consequential loss.
(5) Any liability towards third parties is excluded. The present contract shall not create any obligations in favour of third parties. Excluded from this are the recipients of the certificate named to the SV at the time of commissioning. Liability towards them shall be the same as towards the client.
(6) The SV shall not be liable for consequential damage caused by a defect or for financial loss suffered by third parties or for legal costs.
All claims for damages shall in principle be time-barred six months after delivery of the performance.
(7) SV shall be liable for third parties commissioned with the knowledge of the client to perform individual parts of the service, in particular external employees who are neither employees nor partners, only if they are at fault for their selection.
(8) The provisions of this paragraph shall apply in particular to damage caused by delay.
(9) The SV shall not be liable for damage caused by electronic transmission. Electronic transmission (including internet/email) shall take place exclusively at the client’s risk. The client is aware that confidentiality is not guaranteed when using the internet.
(10) Costs and expenses incurred by the contractor as a result of further processing in the course of arbitration or ordinary courts shall be invoiced to the principal in accordance with the actual expenditure and shall be reimbursed by the principal. Costs awarded by the court shall be deducted therefrom. Due to the complexity of the matter, the undersigned SV shall not be liable for any consequential costs arising from the fact that another expert arrives at a different result, even in court proceedings.
(11) The original language of the certificates and reports is German. The SV shall not be liable for translation errors for reports in other languages.
§ 10 Default in acceptance and failure to cooperate by the client
(1) If the client is in default of acceptance of the service offered by the SV or if the client fails to cooperate in accordance with § 6 or otherwise, the SV shall be entitled to terminate the contract without notice. This shall not affect the SV’s right to compensation for any additional expenses incurred by the SV as a result of the client’s delay or failure to cooperate and for any damage caused, even if the SV does not exercise its right to terminate the contract.
§ 11 Payment
(1) The fee rates for services to be charged on a time basis are based on an eight-hour day with five working days per week. Travelling time shall be considered working time.
(2) Unless otherwise agreed in individual cases, the client shall bear the expenses for board and lodging of the SV’s staff employed at the place of the findings within the limits of the rates permitted by tax law (if these rates are not sufficient to cover the costs of the board and lodging, the proven reasonable expenses shall be charged) as well as the costs of travel to and from the place of the client’s premises by the SV’s staff, each staff member being entitled to one weekly journey home, the costs of which shall be charged to the client.
(3) All agreed remunerations are net prices. The respective legal turnover tax shall be charged in addition.
(4) The SV may demand reasonable advances on remuneration and reimbursement of expenses and may make the delivery of his service dependent on full satisfaction of his claims.
(5) For services which are to be invoiced on a time basis, the SV shall submit monthly interim invoices.
(6) For fixed-price orders, the SV shall invoice 50% of the order value after the order has been placed. After completion of the order, the remaining 50% shall be invoiced. Expenses and travel costs in accordance with § 11.2 shall be invoiced after completion of the order, provided the order is completed within three months. If the execution takes longer, expenses and travel costs shall be invoiced at three-month intervals.
(7) All invoices are payable 15 days after the date of the invoice without deduction, provided that the invoice was sent on the following day at the latest. The credit entry in the SV’s bank account shall be decisive for the timeliness of payment. Offsetting or assertion of rights of retention against due fee claims of the contractor shall only be permitted if the claim of the client is undisputed or legally binding.
(8) Material samples taken over shall be disposed of 3 months after the report has been prepared. Any storage or return beyond this period shall only take place on request and against payment of a fee.
§ 12 Poaching
(1) During the performance of the contract and for a period of 12 months thereafter, the client shall not employ SV’s staff on his own staff or in any other form on his own staff or on the staff of a dependent company.
§ 13. Final provisions
(1) All offers made by SV shall be without engagement unless expressly stated otherwise in the offer.
(2) The contract shall supersede all previous agreements concerning its subject matter. Amendments and additions must be made in writing.
(3) Assignment of claims arising from this contract is not permitted.
(4) The contract is subject to German law.