General terms and conditions for the provision of consultancy services and the rendering of expert opinions.
- The legal relationship between the contractor/consultant/expert (hereinafter referred to as the expert) and his client is governed by the following contractual conditions.
- Any terms and conditions of business of the Principal that deviate from these shall only become part of the contract if the Expert expressly accepts them in writing.
2. Article 2 Mission
- The acceptance of the order as well as agreements, assurances or subsidiary agreements made verbally, by telephone or by employees require the written confirmation of the Expert to be effective.
- The subject of the contract is any kind of consultancy or expert activity such as ascertaining facts, presenting experience, determining causes, evaluating This activity can also be carried out in the context of arbitration proceedings.
- The consulting/expertise topic and intended use must be specified in writing when the order is placed.
3. Execution of the order
- The order shall be executed impartially and to the best of our knowledge and belief in accordance with the principles applicable to experts.
- The expert can only guarantee a certain success, in particular a result desired by the client, within the framework of objective and impartial application of his expertise.
- The expert shall reimburse his expert activities Insofar as it is necessary or expedient and the personal responsibility of the Expert remains intact, the Expert may avail himself of the assistance of expert staff in the preparation of the Expert Opinion.
- The Expert shall point out to the Principal if, in his opinion, it is necessary to call in experts from other fields of expertise for the proper execution of the contract. The commissioning shall be carried out by the Principal.
- In addition, the Expert shall be entitled to carry out or have carried out the necessary and usual investigations and tests at his dutiful discretion, to make enquiries, carry out research, travel and visitations, and to have photographs and drawings made without the Client’s special consent being required for the processing of the order at the Client’s expense.
- The Expert shall be authorised by the Client to obtain the information necessary for the performance of the service / preparation of the Expert Opinion from the parties involved, authorities and third parties and to conduct surveys. If necessary, the Principal shall issue him with a special power of attorney for this purpose.
- The expert opinion / service must be provided within the agreed period.
4. Obligations of the client
- The Client may not give the Expert any instructions which may distort his actual findings or the result (of his expert opinion).
- The Client shall ensure that the Expert receives all information and documents (e.g. invoices, drawings, calculations, correspondence) necessary for the execution of the order free of charge and in good time. The Expert shall be informed in good time and without special request of all events and circumstances which may be of recognisable importance for the rendering of the Expert Opinion or the performance of the service.
5. Confidentiality of the expert
- In accordance with § 203 Para. 2 No. 5 of the German Criminal Code (StGB), the expert is subject to a duty of confidentiality which is subject to a penalty. Accordingly, he is also contractually prohibited to disclose, pass on or exploit without authorisation the expert opinion itself or facts or documents that have been entrusted to him or otherwise become known to him in the course of his expert activities. The duty of confidentiality covers all facts that are not obvious and applies beyond the duration of the contractual relationship.
- This duty of confidentiality also applies to all persons working in the expert’s The Expert shall ensure that the confidentiality obligation is observed by the persons named.
- The Expert is authorised to disclose, pass on or use for his own purposes the knowledge gained during the expert opinion, if he is obliged to do so on the basis of statutory provisions or if his client expressly releases him in writing from the duty of confidentiality.
6. Copyright protection
- The Expert shall retain the copyright to the services provided by him, provided they are copyrightable.
- In this respect, the client may only use the expert opinion prepared within the scope of the order (services rendered), including all lists, calculations and other details, for the purpose for which it is intended as agreed.
- The Client may only pass on (the Expert Report) to third parties, use it in any other way or modify, shorten or publish the text with the written consent of the Expert.
- The expert shall be entitled to payment of an allowance. The amount of the remuneration shall be as expressly agreed. The remuneration shall include the Expert’s general administrative costs.
- In addition, ancillary costs and expenses may be demanded in the amount actually incurred (against appropriate proof) or agreed (without proof).
8. Payment – Default of payment
- The agreed fee is due upon receipt of the expert opinion by the It is permissible to send the expert opinion by post and at the same time collect the fee due by cash on delivery.
- Services are due upon provision and signature of the performance record by the customer. At the latest, however, upon invoicing and delivery.
- If the Principal is in default with the payment of the fee, the Expert may, after setting a reasonable period of grace, withdraw from the contract or claim damages for non- performance. Subject to the assertion of further damages, interest on arrears shall be payable in the event of late payment at a rate of 8% above the respective base rate of the European Central Bank (ECB), plus the respective value added tax. The interest shall be set higher or lower if the Expert can prove a burden with a higher interest rate or the Client can prove a lower burden.
- Failure to comply with payment terms or circumstances which call into question the creditworthiness of the Principal shall result in all claims of the Expert becoming due for immediate payment. In such cases, the Expert shall be entitled to withdraw from the contract after a reasonable period of grace or to claim damages for non- performance. The same shall apply in case of dishonour of bills of exchange or cheques, suspension of payments or insolvency of the Principal.
- The Client may only set off claims of the Expert against claims of the Expert if the Client’s counterclaim is undisputed or a legally binding title The Client may only assert a right of retention if it is based on claims arising from the contract concluded.
9. Exceeding the deadline
- The period for delivery of the expert opinion begins with the conclusion of the If the Expert requires documents from the Principal in order to deliver the Expert Opinion or if the payment of an advance has been agreed, the period shall not begin to run until the documents or the advance have been received.
- If the delivery date is exceeded, the Client may only withdraw from the contract or claim damages if the Expert is in default of performance or if the Expert is responsible for the impossibility of performance.
- The Expert shall only be in default if he is responsible for the delay in delivery of the Expert Delay in delivery shall not occur in the case of obstacles to delivery for which the Expert is not responsible, such as force majeure, illness, strike and lockout, which are due to an event for which he is not responsible and which lead to serious operational disruptions. The delivery period shall be extended accordingly and the client may not derive any claims for damages from this. If such obstacles to delivery make it completely impossible for the Expert to provide the expert opinion, he shall be released from his contractual obligations. In this case too, the Client shall not be entitled to claim damages.
- In addition to delivery, the Client may only demand compensation for damages caused by delay if the Expert is proven to have acted with intent or gross negligence.
- Client and Expert may terminate the contract at any time before completion of the expert opinion for good cause. The termination must be declared in writing.
- Important reasons that entitle the client to terminate the contract are in particular a violation of the obligations to provide objective, independent and impartial expert opinions.
- Important reasons entitling the Expert to terminate the contract are in particular: refusal of the necessary cooperation of the Client; attempt of inadmissible influence of the Client on the Expert which may distort the result of the Expert’s report; if the Client is in default of payment; if the Client is in financial collapse; if the Expert discovers after acceptance of the order that he lacks the necessary expertise to complete the order.
- In all other respects a termination of the contract is excluded, except for service contracts (consulting). These can be terminated by either party with a notice period of 4 weeks.
- If the contract is terminated for good cause for which the Expert is responsible, he shall be entitled to remuneration for the partial services rendered up to the time of termination only to the extent that such remuneration is objectively usable for the Client.
- In all other cases, the Expert shall retain the entitlement to the contractually agreed fee, but less any expenses saved. Unless the Principal can prove a higher proportion of saved expenses in an individual case, this shall be agreed at 40% of the fee for the services not yet rendered by the Expert.
- As a warranty, the client can initially only demand free rectification of the defective expert opinion / Service.
- If the defect is not remedied within a reasonable period of time or if the remedy fails, the client may demand cancellation of the contract (rescission) or reduction of the fee (abatement).
- Defects must be reported to the expert in writing immediately after they are discovered.
- In the event of the absence of warranted characteristics, a claim for damages remains unaffected.
- The Expert shall only be liable for damages – irrespective of the legal grounds – if he or his employees have caused the damage by a defective expert opinion / defective service intentionally or through gross negligence. All further claims for damages are excluded. This also applies to damages resulting from rectification of defects.
- This does not affect the rights of the client under Claims for damages, which are not subject to a shorter statutory period of limitation, shall become time-barred after three years. The period of limitation begins with the receipt of the expert opinion / provision of the service and the signing of the proof of performance by the client.
13. Place of performance and jurisdiction
- The place of performance is the Expert’s place of business.
- If the Client is a registered trader, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the Expert’s principal place of business.
- The same place of jurisdiction as in clause 2 shall apply if the client does not have a general place of jurisdiction in Germany, if the client moves his place of residence or usual place of abode out of Germany after conclusion of the contract or if his place of residence or usual place of abode is not known at the time the action is brought.