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General Business Terms (Status: March 2011)

General Business Terms

General Business Terms (Status: March 2011)

General Business Terms

§ 1 Introduction
(1) Ingenieurgesellschaft Experimentelle Statik mbH (IGES) provides advice in the field of statics and provides all kinds of technical building diagnostics, in particular the experimental analysis of supporting structures and their structural safety. IGES accompanies its customers, depending on the respective placed order, through all service phases – from the idea to the written statement – or takes over partial tasks, e.g. studies of files, conceptual design, invitation to tender, construction, executions of measurements, FE simulation, documentation or advice.
(2) The legal relationships of the Ingenieurgesellschaft (engineering company) to its client are determined according to the following contractual terms and conditions.

§ 2 Validity
(1) The following General Business Terms shall apply to all contracts concluded between Ingenieurgesellschaft Experimentelle Statik mbH (hereinafter referred to as “IGES” or “Ingenieurgesellschaft”) and its customers (hereinafter referred to as “Customer” or “Client” or “German abbreviation: AG”) in writing, orally or in any other form. (2) General Business Terms of the Customer will explicitly not become contents of the contract, even if they are not explicitly objected to by the Ingenieurgesellschaft.
(3) For the event that the Customer does not intend to have the following General Business Terms deemed as applicable, it has to report this to the Ingenieurgesellschaft in writing in advance. (4) Deviations from the terms and conditions listed herein are only valid if we have approved these in writing before acceptance of the order.
(4) Deviations from the terms and conditions listed herein are only valid if we have approved these in writing before acceptance of the order.

§ 3 Order
(1) The acceptance of the order as well as agreements, assurances or collateral agreements reached or given orally, by telephone or by employees require a written confirmation by the Ingenieurgesellschaft in order to be valid.
(2) The object of the order is, depending on the respective contractual agreements that are to be specifically reached, each type of expert activity such as the determination of facts, presentation of empirical judgements, determination of causes, assessment and examination.
(3) The order topic, in particular the type and scope of the examinations which are to be carried out as well as the objects, on which the examinations are to be carried out, are to be stipulated in writing when the order is placed. This shall also apply to the intended use of the results of the activity of IGES.

§ 4 Execution of the order
(1) The order shall be carried out impartially and to the best of knowledge and belief.
(2) The Ingenieurgesellschaft cannot guarantee a certain success, in particular a result requested by the Client. However, the scope of examination is oriented to the needs of the Client so that the requested result can, if applicable, be achieved according to the objective and impartial application of the expertise.
(3) The Ingenieurgesellschaft shall perform its activity through its employees. If necessary or useful it may use the help of expert freelancers or other engineering companies.
(4) If it is necessary to involve experts of other disciplines for the proper settlement of the order these may be directly commissioned by the Client.
(5) Incidentally, the Ingenieurgesellschaft is entitled to carry out or have carried out the necessary and customary examinations and tests at its dutiful discretion, to collect information, to conduct investigations, to carry out trips and inspections as well as take photos and make drawings or to have such taken or made in order to process the order at the costs of the Client without this requiring a special consent of the Client. Insofar as unforeseeable examinations or in proportion to the purpose of the order time-consuming or costly examinations become necessary here the prior consent of the Client is to be obtained for this purpose.
(6) The Ingenieurgesellschaft is authorized by the Client to obtain information from parties involved, authorities and third parties, which is necessary for carrying out the activities, and to conduct surveys. If necessary, a special power of attorney is to be issued to it by the Client for this purpose.
(7) Written preparations will be made available to the Client in triplicate. Further copies will be invoiced separately.
(8) The results of the examinations can explicitly not be applied to further areas which have not been examined. In order to enable this, special pre-requisites have to be fulfilled specific to the individual case, which will become the object of a separate agreement.
(9) All further component parts (e.g. component parts of other types of construction, supports, foundation, etc.), which were not the object of the order, are if applicable to be proven by the structural engineers in a conventional manner and will not fall under the area of activity and responsibility of IGES.
(10) After the settlement of the order and payment of the agreed remuneration the Ingenieurgesellschaft will return the documents handed over to it by the Client for the execution of the activities without request. It may make copies hereof for the purpose of proof.

§ 5 Duties of the Client
(1) The Client may not give the employees of the Ingenieurgesellschaft any instructions, which may falsify their actual findings or the results of their work.
(2) The Client has to ensure that the Ingenieurgesellschaft receives all information and documents that are necessary for the execution of the order (e.g. invoices, drawings, calculations, written corresponding) free of charge and in time. The Ingenieurgesellschaft is to be informed of all processes and circumstances, which may clearly be of significance for the provision of the services, in time and without special request.
(3) Special measures such as e.g. clearance of the test areas, removal of firmly installed built-in objects or the establishment of breakthroughs are, according to our information, to be carried out by the Client in time before the commencement of our services.
(4) The restoration of examined/tested objects after termination of the work by IGES, in particular of surfaces to ceilings and walls such as e.g. the removal of anchors in the walls, closing of drill holes in the ceilings and the final cleaning of our work areas is not included in our services, but is among the duties of the Client.

§ 6 Confidentiality
(1) IGES and its employees undertake to treat information, of which they have become aware by the provision of the services itself or by documents, which have been entrusted in their care within the framework of the activity or has otherwise become known, confidentially. The obligation for confidentiality comprises all facts, which are not obvious, and shall apply beyond the duration of the order relationship.
(2) The Ingenieurgesellschaft is authorized to disclose, forward or use for own purposes the knowledge gained during the submission of the expert’s opinion if it is obliged to do so owing to statutory regulations or the disclosure and forwarding is carried out towards persons who are obliged to professional secrecy (lawyers/tax advisers) or its Client releases it from the secrecy obligation.
(3) The Ingenieurgesellschaft is authorized to publish a general description of the project and the provided services as well as photographs on its homepage. For the event that the customer does not want to have this deemed applicable, it has to report this in writing to the Ingenieurgesellschaft at the beginning of the order relationship.

§ 7 Copyright protection
(1) The Ingenieurgesellschaft reserves the copyright to the services provided by it insofar as they are capable of copyright.
(2) The Client may only use the documentation produced within the scope of the order with all lists, calculations and other details for the purpose for which it is determined according to the agreement.
(3) The Client is only permitted to forward the documentation to third parties beyond this, any other kind of use or to make a change to the text or to reduction with the written consent of the Ingenieurgesellschaft.
(4) A publication of the documentation requires in all cases the consent of the Ingenieurgesellschaft. Reproductions are only permitted within the scope of the intended use of the expert’s opinion.
(5) IGES exclusively reserves the right to the scientific evaluation and publication of the work as a picture, in writing and as a specialist lecture.

§ 8 Fee
(1) The Ingenieurgesellschaft is entitled to payment of a remuneration. The amount of the remuneration is oriented to the written agreement between IGES and the Client.
(2) If not otherwise agreed the commissioned positions will be settled at the fixed price. If the measure is interrupted prematurely owing to negative results the provided service will be charged according to the required work.
(3) In case of contracts with end consumers the value added tax is included in the fee. If the Client is a legal entity under public law, special assets under public law or a merchant, with which the contract belongs to the operation of its trade enterprise, the value added tax will be added to the remuneration and the expenses in the amount as determined by law upon conclusion of the contract.
(4) The agreed fee will be due and payable by no later than 14 days after receipt of the documentation by the Client. The Ingenieurgesellschaft reserves the right to instalment invoices. The report shall remain the property of the Ingenieurgesellschaft until the full payment of the total invoice amount.
(5) The non-compliance with terms of payment will result in the immediate maturity of all claims of the Ingenieurgesellschaft. In such a case the Ingenieurgesellschaft is entitled to cancel the contract after a reasonable final deadline and to request damages owing to non-fulfilment. The same shall apply with the non-encashment of bills of exchange or cheques, suspension of payments, insolvency or the request for a settlement of the Client.
(6) The Client can only offset against claims of the Ingenieurgesellschaft 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 if it is based on claims from the concluded contract.

§ 9 Deadlines
(1) If not otherwise agreed the validity of the offer of the services to be provided is limited to a period of 3 months from the date of the creation. After the expiry of the deadline the Ingenieurgesellschaft reserves the right to adjust the prices.
(2) In case an agreed delivery date is exceeded the Client can only cancel the contract or request damages if the delay in service has been caused by the Ingenieurgesellschaft.
(3) The Ingenieurgesellschaft will only be in default if it is responsible for the delay in execution of the work / delay in delivery of the documentation. Delay in delivery will not occur in case of delivery impediments for which it is not responsible such as for example events of force majeure, illness, strike and lock-out, which are due to a non-culpable event and lead to serious interferences to operation. The delivery deadline shall be extended accordingly and the Client cannot derive any claims for damages from this situation. If the execution of the work / creation of the documentation becomes completely impossible due to such delivery impediments the Ingenieurgesellschaft will be released from its contractual obligations. The Client shall not be entitled to a claim for damages in this case either.
(4) In addition to the delivery the Client can only request damages due to default if it is proven that the Ingenieurgesellschaft is responsible for wilful intent or gross negligence.

§ 10 Termination
(1) The Client and the Ingenieurgesellschaft can terminate the contract for an important reason at all times. The termination is to be declared in writing.
(2) Important reasons, which entitle the Ingenieurgesellschaft to termination, are among others refusal of the necessary assistance by the Client; attempt of the Client to exert an influence on the Ingenieurgesellschaft, which may falsify the results of the order; if the Client is in default as a debtor if the Client suffers from deterioration of assets; if the Ingenieurgesellschaft determines after acceptance of the order and a subsequently carried out initial examination that it is lacking in the expertise which is necessary to settle the order.
(3) Otherwise a termination of the contract is excluded.
(4) If the contract is terminated for an important reason, for which the Ingenieurgesellschaft is responsible, it shall only be entitled to a remuneration for the partial service provided until the time of the termination to the extent that this is objectively usable for the Client.
(5) In all other cases of the termination the Ingenieurgesellschaft reserves the entitlement to the contractually agreed fee, however under the deduction of saved expenses. Insofar as the Client does not prove any higher share of saved expenses in an individual case, this shall be agreed with 20% of the fee for the services not yet provided by the Ingenieurgesellschaft.

§ 11 Warranty
(1) As a warranty the Client can initially only request free subsequent improvement of the faulty work / documentation which has to be carried out in writing.
(2) If the subsequent improvement is not carried out within a reasonable period of time or if the subsequent improvement fails the Client can request a reversal of the contract or a reduction in the fee.
(3) Defects must be reported to the Ingenieurgesellschaft in writing immediately after they are determined, otherwise the warranty claim will lapse.
(4) A claim for damages will remain unaffected with the absence of warranted characteristics.

§ 12 General limitation to liability
(1) We will only be liable owing to the breach of contractual and non-contractual obligations, in particular owing to the impossibility, default, fault upon conclusion of the contract, breach of contractual or statutory collateral obligations and illicit act in cases of wilful intent and gross negligence. For simple negligence we will be liable with a culpable breach of essential contractual obligations insofar as the achievement of the contractual purpose is endangered hereby, with an injury to life, the body, the health and in cases of malicious deceit.
(2) The liability is principally limited to the foreseeable damages as well as to the sum insured from the professional liability insurance with VHV concluded for such cases (per damaging event: physical injuries EUR 3,000,000.00; EUR 3,000,000.00 for other damages; a maximum of EUR 9,000,000 per calendar year). The insurance policy handed over to the Client will become part of these terms and conditions. It is explicitly pointed out to the contractual partner that the sum insured may not be sufficient to cover all suffered damages. It reserves the right to conclude further insurance for these cases.
(3) No liability will be assumed for damages, which are suffered owing to defects, hidden faults of the test object or the assignment of the measurement results to component parts and other objects, which were not part of the order.
(4) Insofar as the liability is excluded or limited, this shall also apply to the personal liability of the legal representatives, employees, workers, freelancers and vicarious agents.
(5) Insofar as reference is made to publications, the disclosure of facts, figures and similar details of third parties owing to the activity and / or these are used as a basis for the provision of the services, no warranty is assumed for the accuracy of the afore-mentioned details of third parties. Liability for damages, the cause of which is due to the inaccuracy of the afore-mentioned details, is excluded.

§ 13 Final provisions
(1) The place of performance is the registered seat of the Ingenieurgesellschaft.
(2) If the Client is a merchant, legal entity under public law or a special fund under public law the head office of the Ingenieurgesellschaft shall be the exclusive place of jurisdiction.
3) The same place of jurisdiction as in Subclause 2 shall apply if the Client does not have a general place of jurisdiction in the domestic country, after conclusion of the contract relocates its domicile or customary place of stay from the domestic country or its domicile or customary place of stay is not known at the time when the action is filed.
(4) This contract is exclusively subject to German substantive law under the exclusion of international private law according to Sections 3 et seqq. EGBGB (Introductory Act to the German Civil Code) and the UN Convention on Contracts for the International Sale of Goods.
(5) Should one provision of this contract be or become invalid or non-enforceable in full or in part or feature a loophole or otherwise prove to require supplementation or violate valid law in full or in part this shall have no effect on the validity of the other provisions. In these cases a provision shall rather be agreed which serves the contractual purpose to the best possible extent; the parties involved agree in this respect that by showing the due consideration for the reciprocal interests of the parties the invalid provision or the loophole will be replaced or supplemented by a reasonable substitute regulation.