This is a technical translation without binding character. Only the German version of the terms and conditions, remains valid.
§ 1 Scope
1. The legal relations between Adjustex Schulz Herrmann Beratende Ingenieure PartG mbB to its clients shall be determined according to the following contractual terms and conditions.
2. Business terms and conditions of the client that deviate from these will only become part of the contract if they are explicitly recognised by the expert in writing.
§ 2 Order
1. The acceptance of an order as well as agreements, assurances or collateral agreements reached or given orally, by telephone or through employees shall require a written confirmation of the expert in order to be valid.
2. The object of the order is all kinds of expert services such as determination of facts, presentation of empirical principles, determination of causes, assessment and review. This activity can also be performed within the scope of an arbitrator’s or court of arbitration activity.
3. The exert service and the intended purpose are to be stipulated in writing when the order is placed.
§ 3 Execution of the order
1. The order is to be carried out impartially and to the best of knowledge and belief.
2. A certain success, in particular a result requested by the client cannot be guaranteed by the expert.
3. The expert shall perform his service personally. As far as necessary or expedient and the own responsibility of the expert is retained, the expert may use the help of expert employees with the preparation of his service. In addition to this the expert can use assistants if the client agrees hereto and the type and scope of the assistance is disclosed.
4. If it is necessary to involve experts of other disciplines for the proper settlement of the order, they shall be commissioned by the expert with the approval of the client at its costs.
5. Incidentally, for the processing of the order the expert is entitled, at the client’s costs, to conduct the necessary and customary investigations and tests at his dutiful discretion or to have these conducted, to make enquiries, conduct research, to carry out trips and viewings as well as to take photos and prepare drawings or to have these made, without this requiring a special consent of the client. If more time-consuming and cost-intensive investigations become necessary that are unforeseeable here, in relation to the purpose of the service or in relation to the agreed fee, the prior consent of the client is to be obtained for this purpose. It moreover also has to agree to an assimilation of the fee with a flat rate agreement.
6. The expert is authorised and granted permission by the client to obtain information from parties involved, authorities and third parties, which is necessary in order to submit the expert’s opinion and to conduct surveys. If necessary, a special power of attorney is to be issued to him by the client for this purpose.
7. The expert service is to be submitted within the agreed deadline.
8. Written elaborations will, as a rule, be made available to the client as one official copy. Further copies will be invoiced separately.
9. After settlement of the order and payment of the agreed remuneration, the expert has to return the documents handed over to him by the client for the execution of his service at the request of the client.
§ 4 Obligations of the client
1. The client may not issue the expert any instructions, which may falsify his actual findings, specialist conclusions, assessments or the result of the expert’s service.
2. The client has to enable the expert to have access to the object of the expert’s opinion.
3. The client has to ensure that all information and documents, which are necessary for the execution of the order (e.g. invoices, drawings, calculations, written correspondence) are received by the expert free of charge and in time. The expert is to be notified of all events and circumstances, which may clearly be of significance for the performance of his service, in time and without a special request.
§ 5 Non-disclosure obligation of the expert
1. Pursuant to Section 203 Para. 2 No. 5 German Criminal Code [Strafgesetzbuch – StGB] the expert is subject to a non-disclosure obligation on pain of a penalty. Accordingly, he is also forbidden as per contract to disclose or forward the expert’s opinion itself or facts or documents, which were entrusted in his care within the scope of his expert activity or of which he gained knowledge otherwise, to unauthorised persons or to exploit these. The non-disclosure obligation shall comprise all non-obvious facts and will apply beyond the duration of the order relationship.
2. This non-disclosure obligation shall also apply to all persons working in the company of the expert. The expert has to ensure that the non-disclosure obligation is complied with by the stated persons.
3. The expert is authorised to disclose, forward and to own use of the knowledge gained during the service provision if he is obliged to do so owing to statutory regulations or his client explicitly releases him from the non-disclosure obligation in writing.
§ 6 Copyright
1. The expert shall reserve the copyright to the services provided by him, insofar as they are capable of protection under copyright law.
2. The client may only use the expert’s opinion produced within the scope of the order, with all lists, calculations and other details for the purpose, for which it is intended pursuant to the agreement.
3. A use beyond this, in particular the forwarding of the expert’s opinion to third parties, any other type of use or a text change or reduction is only permitted for the client with the expert’s consent.
4. A publication of the expert’s opinion shall require, in any case, the expert’s consent. Reproductions are only permitted within the scope of the intended use. Investigation and service results may only be used for purposes of advertising by the client with the consent of the expert and with his approval of the wording of the advertising.
§ 7 Fee
1. The expert is entitled to payment of a remuneration. This shall be oriented to the agreements reached between the client and the expert.
2. These shall also apply for each further activity, which is not initiated by the expert, in this matter, also e.g. for a possible activity before court by offsetting any compensation received.
§ 8 Payment and default of payment
1. The agreed fee will be due with the acceptance of the service and receipt of the invoice by the client, at the latest however within one week after receipt of the invoice. Payments have to be made by 14 days after receipt of the invoice. The postal sending of prepared written pleadings with the simultaneous collection of the due remuneration by cash on delivery is permitted. The advance payment will be due in accordance with the individual contractual agreement.
2. Instructions for payment, cheques and bills of exchange will only be accepted after a special agreement and the charging of all collection and discount charges and only on account of payment.
3. If the client is in default of payment with the fee the expert can rescind the contract after setting a reasonable final deadline or request damages owing to a breach of obligations. Subject to the assertion of further damages in case of default of payment default interest is to be paid in the amount of 5% above the base lending rate, respectively plus value added tax. It is to be estimated higher if the expert proves a higher interest rate burden.
4. Non-compliance with terms of payment or circumstances, which raise questions about the creditworthiness of the client, will result in the immediate maturity of all claims of the expert. In these cases, the expert is entitled to rescind the contract after setting a reasonable final deadline or to request damages owing to a breach of obligations. The same applies with the non-redemption of bills of exchange or non-encashment of cheques, discontinuations of payment, insolvency or request for a settlement of the client.
5. The client can only offset counterclaims against claims of the expert if the counterclaim of the client is undisputed or a final and binding enforceable instrument is available. The client can only assert a right of retention insofar as it is based on claims from the concluded contract.
§ 9 Exceeding of deadlines
1. The deadline for delivery of the expert service (cf. § 3 Par. 7) will begin with the conclusion of the contract. If the expert requires documents of the client in order to perform its service (cf. § 4 Par. 2) or if the payment of an advance payment has been agreed, then the deadline will only begin to run after receipt of the documents or the advance payment.
2. If this delivery date is exceeded, the client can only rescind the contract and request damages in the event of the breach of obligations for which the expert is responsible.
3. In case of impediments to delivery for which a party is not responsible such as for example cases of force majeure, illness, strike and lock-out, which are due to an event without fault and that lead to serious interferences to operation, default of delivery will not be deemed as having occurred. This shall also apply if the client does not provide the necessary information, nor submit necessary documents. The delivery deadline shall be extended accordingly. If the performance of his service becomes completely impossible for the expert due to such impediments to delivery, the contractual parties shall be released from their contractual obligations. Claims for damages of the client are excluded in all of these cases.
§ 10 Termination
1. The client and the expert can terminate the contract at any time for good cause. The termination is to be declared in writing.
2. Good cause, which entitles the client to termination, is among others a breach of the obligations for the objective, independent and impartial provision of the service.
3. Good cause, which entitles the expert to termination, are among others refusal of the necessary assistance of the client, an attempt at inadmissible influence of the client on the expert, which may falsify the result of his service (cf. § 4 Par. 1), non-payment of the agreed instalment payment, insolvency of the client and if the expert determines after acceptance of the order that he is lacking in the expertise that is necessary to settle the order.
4. Otherwise, a termination of the contract is excluded. This shall not have any effect on the rights of the client, if the expert is responsible for a breach of obligation.
5. If the contract is terminated for good cause, for which the expert is responsible, he shall only be entitled to a remuneration for the partial services provided until the time of termination to the extent that these are objectively usable for the client.
6. In all other cases the expert will retain the entitlement to the contractually agreed fee; he must however allow that to be credited, which he saved in expenses as a result of the revocation of the contract or acquires through the use of his manpower otherwise or maliciously fails to acquire. Insofar as the client does not prove nay higher share of saved expenses in an individual case, this shall be agreed with 40% of the fee for the services not yet provided by the expert.
§ 11 Liability for defects
1. If the service is defective the client can initially only request free subsequent performance.
2. If the material defect is not remedied after the second attempt at subsequent performance or if this fails, the client can rescind the contract or reduce the fee.
3. Obvious defects must be reported to the expert in writing within two weeks; otherwise, the claims due to defects irrespective of fault will lapse.
4. Claims due to defects shall become statute-barred within one year from acceptance of the service. Excluded are claims for damages in case of the injury to life, body and health, in case of wilful intent or gross negligence of the expert, of his legal representative or vicarious agents, in the event of malicious non-disclosure of defects or assumption of a guarantee for the condition of the service.
§ 12 Liability
1. Claims of the client for damages are excluded with the breach of collateral obligations in the event of slight negligence with the exception of injuries to life, body and health.
2. In case of a breach of essential obligations in the event of slight negligence of the expert, his legal representatives or vicarious agents the expert will be liable within the scope of the existing liability insurance (physical injuries EUR 5,000,000.00 as well as property damages and financial losses EUR 5,000,000.00). In case of a use not as intended or non-agreed forwarding, liability is excluded in this case (also towards third parties). This regulation shall not apply with injuries to life, body or health.
3. If the expert is not responsible for a breach of obligation, which does not consist of the production of a defective service, the client is not entitled to rescission.
§ 13 Force majeure
1. If and as far as a contractual party cannot fulfil a contractual obligation for reasons of force majeure, it shall be released from the service obligation for the duration of the interference and to the extent of its effect. Deemed as force majeure is each event not associated with the operation of the contractual party, with unavoidable external force such as wars, civil wars, embargoes (under trade law), import or export bans, political unrest, pandemics, natural disasters and events, also as far as they relate to the envisaged transport routes and unforeseeable and unavoidable official orders, strikes and lock-outs. Force majeure shall also include interruptions in the supply of raw materials and energy.
2. The aforementioned shall also apply if these events occur at a time, at which the contractual partner concerned is in default, unless it caused the default wilfully or gross negligently. The contractual partners are obliged, within the scope of that which is deemed reasonable, to provide the necessary information without delay and to adjust their obligations to the changed circumstances in good faith.
3. That party, which refers to force majeure, has to communicate this to the other contractual party in writing without delay.
4. If the event of force majeure lasts for longer than 90 consecutive calendar days, then each contractual party shall be entitled to terminate the contract with regard to the not yet fulfilled part of the contract.
§ 14 Place of performance and place of jurisdiction
1. The place of performance is the registered seat of the expert.
2. The place of jurisdiction at the registered seat of the expert is agreed if the client does not have any general place of jurisdiction in the domestic country, relocates its domicile or its customary place of abode from the domestic country after conclusion of the contract or its domicile or customary place of abode are not known at the time when the legal action is filed.
§ 15 Final provisions
1. If individual provisions of the contract are invalid this shall have no effect on the validity of the contract on the whole. That regulation shall apply to replace the invalid provisions, which shall, as far as possible, correspond with the intended purpose in a manner that is admissible by law. Both contractual partners undertake to replace the invalid provisions by those provisions which correspond with the intention of the parties.