General terms and conditions
The General Terms and Conditions apply exclusively to expert activities between businesses (B2B)
Section 1: Incorporation of General Terms and Conditions
The following General Terms and Conditions (GTCs) apply only in conjunction with the mandate given to the expert and become an integral part of the mandate upon conclusion of the contract. They also apply if the expert knows the client’s terms and conditions which (as a whole or in part) oppose or deviate from his GTCs and, notwithstanding this, unconditionally renders the expert services.
Section 2: Conclusion of the contract
(1) Answers to the client’s inquiries to the expert by post, fax, e‑mail or telephone are generally non-binding (regarding exception of a binding offer, see para. 2 below). Such inquiries merely constitute an invitation to the expert to submit a binding offer to the client for the conclusion of a contract.
(2) On the basis of the client’s information and requirements, the expert submits to the client a written offer for the services to be rendered that is explicitly identified as such. This offer is binding. The contract will not come into effect until the client signs the offer and sends it back to the expert within two weeks after receipt.
(3) Modifications of or amendments to the mandate as well as verbal ancillary agreements are not valid unless confirmed by the expert in writing. The same applies to information and promises made by employees of the expert.
Section 3: Obligations of the expert
(1) The expert is obliged to perform his expert services independently, impartially, conscientiously, without instructions and personally.
(2) The client agrees that the expert may employ employees and assistants, in addition to preparatory work, for the execution of the mandate in accordance with his instructions.
(3) The expert warrants the correctness of the contents and the result of his expert service within the scope of the agreed mandate and its intended purpose. The expert is, in particular, responsible for ensuring that his actual findings are complete within the scope of what is possible and what can be expected, that his technical assessments correspond to the available current state of science, technology and experience, and that his professional conclusions are made with the objectively necessary care of a prudent expert.
(4) The expert is not responsible for the correctness of the documents and information provided by the client to him for the purpose of executing the mandate. A verification obligation only exists in as far as the expert is aware of concrete actual indications of the uncertainty of statements and/or documents provided to him.
(5) Upon request, the expert has to inform the client at any time of the status of his work, of the expenses incurred or to be expected and of the expected completion date.
(6) The expert is subject to a duty of confidentiality which includes all facts that are not obvious, subject to the obligation to provide information under procedural law. The expert is therefore prohibited from making any unauthorised disclosure, forwarding or use for his own benefit of the expert’s services themselves or of any facts, documents and information that became known to him or that were given to him during the preparation and execution of the mandate. The duty of confidentiality extends beyond the end of the mandate. The expert will ensure that all persons working in his company are bound to confidentiality and any obligations consequently arising. The expert is authorised to present the paid expert services to the competent appointing body or other control institution within the framework of his professional duties.
(7) The client can release the expert from his duty of confidentiality at any time.
(8) The expert’s storing, processing and use of the client’s personal data for the purpose of the correct execution of the mandate and guarantees compliance with the requirements of the Bundesdatenschutzgesetz (BDSG) [Federal Data Protection Act].
Section 4: Client’s obligations
(1) The client must ensure that any information and documents required for the correct execution of the mandate (see section 3 of the basic contract) are made available to the expert free of charge and in due time.
(2) If necessary, the client must grant the expert access to the property to be assessed/appraised.
(3) The client must authorise the expert (if necessary, in a separate document) to obtain from parties involved, authorities or third parties any information, to inspect documents and to carry out investigations in as far as this is necessary for payment for the expert services.
(4) During the preparation of the expert's report, the expert must be informed of all processes and circumstances which may be of significance for the purpose and content of the expert's work.
(5) The client may not issue any instructions to the expert which could distort the expert’s actual findings, technical conclusions or assessments or the result of the expert opinion. Any instructions or requests that may be issued despite the foregoing must be rejected by the expert who is not permitted to comply therewith.
Section 5: Execution of the mandate
(1) The expert must execute the mandate with due care and speed and in compliance with his professional and contractual duties.
(2) The facts underlying the professional assessment must be determined conscientiously; the result of his professional assessment must be clearly substantiated by the expert. If an expert opinion is commissioned, it must be structured systematically, clearly structured and written in a manner that is both comprehensible for the client and verifiable by experts.
(3) Within the scope of his duties (see, in particular, section 3 of the basic contract), the expert can make use of competent assistants in the preparation of his expert work. The expert must always carry out site inspections in person. In exceptional cases, the expert can use qualified assistants if the results of the site inspection can be communicated to him completely and beyond any doubt, so that he is able to assess the facts of the case without restrictions whilst at the same time maintaining his personal responsibility.
(4) If further experts from other disciplines or special experts are necessary in order to ensure the correct execution of the expert’s mandate – according to results already obtained following commencement of the expert’s work – the expert must obtain the client’s consent and mutually agree to the additional costs.
(5) Furthermore, the expert is entitled, at the client’s expense, to carry out any journeys, site and object inspections and the required inspections and tests necessary to execute the mandate, to make enquiries and investigations, to take photographs and to prepare drawings without the client’s separate consent being required for this. However, if costs arise in this context which are clearly no longer in a reasonable proportion to the purpose and value of the expert’s services, the expert must obtain the client’s prior consent therefor.
Section 6: Deadline for submission of the expert opinion
(1) The expert’s deliverable must be presented in writing by the time agreed therefor in the mandate.
(2) The period begins when the contract is signed. If the expert requires documents and information from the client in order to prepare the expert opinion, the period will not begin until receipt of the documents or information required for the expert’s work.
(3) The expert is only in default if he is responsible for the delay in submitting his deliverable, section 276 of the Bürgerliches Gesetzbuch (BGB) [German Civil Code].The expert is not responsible for cases of force majeure, such as illness, strike and lockout.
(4) In the event of any delay in the performance of the expert’s work, the expert is obliged to inform the client about circumstances and duration in as far as this is possible and reasonable. In the event of a substantial delay, the client may cancel the contract after setting a reasonable deadline if the client can no longer be reasonably expected to wait any longer and/or if the purpose of the appraisal requires the timely execution of the mandate.
Section 7: Expert assistants for special areas
(1) The parties to the contract agree that the expert may retain the following experts, special experts, testing institutes, etc. for special areas (in his own name, for the client’s account).
(2) The expert can make the retaining of expert assistants contingent upon the client’s effecting of advance payment on account of the costs incurred for such expert assistants or upon the client’s commissioning of such the assistants in the client’s own name.
(3) In as far as such experts are not yet identified here; the expert must come to an agreement with the client prior to commissioning these experts.
Section 8: Legal issues
(1) Legal assessments can generally not be the subject matter of expert services; pursuant to the Rechtsdienstleistungsgesetz (RDG) [Act on Out-of-Court Legal Services], only lawyers are allowed to render such services. In as far as legal issues are part of the mandate, the expert may, with the client’s prior consent, retain a lawyer in order to have such issues handled.
(2) In as far as the expert is to provide a permitted legal service as an ancillary activity in pursuant to section 5 RDG, the additional contractual obligation must be specified and agreed to in writing if it is to become an integral part of the contract.
Section 9: Remuneration and payment
(1) The expert is entitled to remuneration. Adequate advance payments on account of costs can be requested and/or partial invoices can be issued in accordance with the services already rendered. The expert can demand an appropriate advance payment which must be credited to the expert’s account prior to commencement of the expert’s assessment.
(2) Remuneration generally consists of time-based remuneration (otherwise, for instance, a lump sum) and reimbursement of the necessary expenses. The amount of the hourly rate is laid down in the mandate. Otherwise the customary fee rate applies for experts in the relevant subject area.
(3) All periods of time which are directly or indirectly connected with the execution of the expert’s mandate will be invoiced at the same hourly rate. Travel times will be charged at a separate rate if this has been agreed upon separately in the mandate.
(4) Expenses are invoiced at the amount actually incurred (against suitable verification documents) and in the agreed amount (without verification documents). Expenses are charged specifically for the use of auxiliary staff, travel costs, accommodation, photos and secretarial work.
(5) Value-added tax at the statutory rate is – except for services rendered for private consumers – not included in the remuneration rate; value-added tax will be shown as a separate item at the statutory amount on the day of invoicing.
(6) After conclusion of the contract, the expert is entitled to request an appropriate advance payment on account of costs prior to commencing work. Irrespective of this, the contractor can request advance payments from the customer in the amount of the value of the services rendered by the contractor and payable pursuant to the contract.
(7) The agreed remuneration is due 14 days after delivery of the expert’s work and receipt of the invoice by the client. Within this period, the expert opinion is deemed to have been accepted if no reasons justifying a complaint are submitted.
(8) The client is only entitled to offset any counterclaims if these have been established by a final court decision, if they are undisputed or if they are acknowledged by the expert. The client is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
Section 10: Termination
(1) The client is entitled to terminate the contract pursuant to section 648 BGB (new version) at any time, but continues to be obliged to pay remuneration in accordance with this provision. Within the framework rendering final accounts, the expert can estimate remuneration still due to him in view of the termination at a flat rate of 10% of the agreed remuneration attributable to the part of the service not yet rendered.
(2) The expert can only terminate the contract for cause. In such case, termination must be declared in writing and identify the cause.
(3) Cases where the expert can terminate the contract for cause include, but are not limited to: Client’s refusal of the necessary cooperation; client’s attempt to unreasonably influence the expert in order to obtain a biased report; failure to effect the agreed advance payments after a reasonable reminder.
(4) The client is also entitled to terminate the contract for cause. Cases for termination for cause include, for example, revocation of the expert’s public appointment or severe violation of the expert’s duties to provide an unbiased, independent, impartial and personal expert opinion. Termination for cause is also possible if the reason for the expert’s service ceases to exist following commissioning for objective reasons and if the client is hence no longer interested in the performance of the expert’s service.
(5) If the contract is terminated by one of the parties for cause, the expert is entitled to remuneration for the work performed up to the time of termination. If termination is based on an event for which either party is responsible, claims under the general provisions of the BGB remain unaffected for both parties sections 280 et seq. BGB).
Section 11: Liability for defects
(1) Within the scope of the client’s rights pursuant to section 634 No. 1 3 BGB, the client can first, pursuant to section 635 BGB, demand that the defect be cured at no cost to the client. In the event that the attempt to cure the defect fails within a reasonable period of time, the client may reduce the expert’s remuneration or – in the event of severe breaches of duty by the expert – terminate the contract for cause.
(2) The client must notify the expert of obvious defects in the expert’s work in a verifiable manner within four weeks after receipt of the expert’s work. After expiry of this period, the client will be barred from claiming any defects for which the expert is not responsible (section 276 BGB).
(3) The statutory provisions apply to the limitation period for claims which the client may have with regard to warranty for material defects.
Section 12: Liability insurance
(1) The expert must provide evidence of appropriate professional indemnity insurance. He must ensure that insurance coverage in the amount of the sum insured exists to cover damage arising from the contract. In the case of expert companies, insurance coverage must exist for all members of the company in the amount of the intended coverage.
(2) If the client expressly requests proof of insurance coverage, the expert is not entitled to payments from the client before submission of a valid policy in conformity with the contract. The client is entitled to make payments contingent upon proof of existing insurance coverage.
(3) The expert is obliged to provide immediate notification in writing if and to the extent that insurance coverage no longer exists in the agreed amount.
Section 13: Place of performance, jurisdiction and applicability of German Law
(1) The place of performance is the expert’s principal place of business.
(2) If the client is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction is the expert’s registered office.
(3) The expert’s registered office is always the exclusive place of jurisdiction if the other party to the contract has no general place of business in Germany, if the other party to the contract against whom legal action is filed moves its domicile or usual place of residence outside Germany after conclusion of the contract or if its domicile or usual place of residence is unknown at the time legal action is filed.
(4) The contract is governed by the laws of the Federal Republic of Germany to the exclusion of the conflict of laws provisions of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).
Section 14: Miscellaneous provisions
(1) Any modifications of or amendments to the contract are not valid unless made in writing. This also applies to a waiver of this agreement.
(2) In the event that individual provisions of the GTCs are or become legally invalid as a whole or in part or in the event that the contractual provisions contain a loophole or are unclear, the validity of the remaining provisions is not affected thereby. Any such invalid, incorrect or unclear provision or loophole is to be replaced by a reasonable provision which as far as permitted by law and to the maximum extent possible reflects what the parties intended or would have intended according to the spirit of the contract, had they considered the issue in question.
(3) Work will not commence until the advance payment on account of costs pursuant to section 9 (1) hereof has been credited to the expert's bank account and any necessary client documents – including those requested by the expert or obviously still required for him – are available to the expert.