§ 1 General
- 1.1 All legal transactions with BSR Engineering GmbH (hereinafter referred to as BSR) are exclusively subject to these terms and conditions. They also apply to all future business relationships, even if they are not expressly agreed again. The validity of different terms and conditions - especially of the client - as well as any approval fictions is contradicted.
- 1.2 The term "product" in the context of these general terms and conditions refers to engineering planning.
§ 2 Offer and contractOffers by BSR are non-binding. Declarations of acceptance and all orders require written confirmation from BSR to be legally effective. All information such as drawings, illustrations, dimensions, weights and other data as well as information in brochures are only binding if expressly agreed in writing.
§ 3 Services of BSR
- 3.1 BSR will provide its services in accordance with the written task. Decisive are the content of the task as well as the requirements specific to it, which the contracting parties ultimately agreed upon.
- 3.2 The client designates a project manager for cooperation with BSR. He can make decisions or bring about immediate decisions, which are recorded by him in writing. The client's project manager is available to BSR for necessary information. BSR will engage this project manager, as required by the contract.
- 3.4 The work of BSR usually takes place at the premises of BSR and will be carried out at the client’s site to the extent necessary for proper execution. In this case, BSR or its employees will receive sufficient workplaces and work equipment from the client. Travel times for round trip are then part of the working time.
§ 4 Obligation to cooperate of the clientThe client is obliged to inform about all circumstances relevant to the fulfillment of the contract immediately in writing, and to provide BSR with the requested information and agreed personnel and material resources. In the event of violations of this agreement, BSR shall be entitled to terminate the contract after notification and a period of one month, and to assert the damage incurred (e.g. loss of profit, time worked in vain).
The client is obliged to document defects or poor performance when asserting warranty claims and to submit this documentation in writing. In the event of a breach of this agreement, except in the case of intent or gross negligence on the part of BSR, any warranty and compensation claims shall be cancelled.
§ 5 Change of the contractual conditions
- 5.1 If the client wishes to change the requirements (which includes extensions), BSR is obliged to agree to this insofar as it is reasonable for BSR. Insofar as the realization of a change request has an effect on the contract, BSR may demand an appropriate adaptation of the contract, in particular the increase of the remuneration and / or the postponement of appointments.
- 5.2 Agreements on changes to the requirements and on the adaptation of the contract must be in writing. The formulations of BSR are binding if the client does not contradict them immediately.
- 5.3 BSR will assert the request for adaptation of the contract without delay. The client will object immediately if he does not agree with the requested adjustments.
§ 6 Delivery and acceptance
- 6.1 BSR hands over the completed services to the client.
- 6.2 The client will check the contractual conformity of the delivery, in particular all drawings, illustrations, dimensions, weights and other data including documentation in every respect and, if in accordance with the contract, declare their acceptance in writing. Unless otherwise agreed, the test period is two weeks. BSR is prepared to support the client in connection with the handover, even in the case of an acceptance test against remuneration at cost.
- 6.3 The services shall also be deemed accepted as soon as the usability of the works is not considerably reduced due to reported defects after the expiry of the inspection period.
- 6.4 Insofar as partial services are agreed, these will be accepted individually. The interaction of all parts is checked within the acceptance test for the last partial performance.
§ 7 Remuneration, payments, due dates
- 7.1 The current prices of the respective applicable price lists or the corresponding offer of BSR upon conclusion of the contract shall apply. If work at cost is required, the BSR can settle monthly. The client can only dispute invoices for reimbursement at cost within one month after receipt.
- 7.2 The client is only entitled to set-off and retention with counterclaims if these are undisputed or legally established.
- 7.3 BSR retains ownership of all delivered analysis reports and / or goods until complete fulfillment of all payment claims already incurred by the Client at the time of delivery.
- 7.4 Costs for trips to the client deemed necessary by BSR and additional costs for services rendered by BSR as agreed beyond normal working hours (Mon-Fri: 8:00 am to 5:00 pm) shall be invoiced separately in accordance with BSR's applicable billing rates.
- 7.5 Payments are to be made within 14 days after invoicing without deduction. In case of late payment, the statutory provisions apply. In the event of late payment, the client shall owe default interest to BSR in the amount of 5 percentage points above the base lending rate in accordance with §247 German BGB. The payment is considered to have taken place only if the BSR can dispose of the amount (receipt of payment).
- 7.6 All prices are exclusive of VAT.
- 7.7 The right to use the analysis reports and created documents as well as plans is suspended if the client is in default of payment.
§ 8 Subsequent performance in case of performance defects
- 8.1 BSR provides its work and services in accordance with the written task. In the event of a defect, BSR is liable for free repetition of the work or service.
- 8.2 The right of reduction or withdrawal from the contract is only granted to the client if the supplementary performance according to section 8.1 fails or is impossible for other reasons.
- 8.3 The claim for supplementary performance must be asserted in writing by the client immediately after discovery of the defect.
§ 9 Warranty
- 9.1 If the client complains about defects, the client must report these in a comprehensible form stating the information that is useful for the detection of defects, and in writing at the request of BSR. The client must support BSR within the reasonable scope in the removal of defects and carry out corrective measures provided by the BSR.
- 9.2 BSR shall provide supplementary performance at its own choice either by rectifying the defect or by replacement delivery within a reasonable period.
- 9.3 The duty of supplementary performance expires if the client itself makes changes to the submitted reports, documents and drawings or intervenes in these in any other way, unless the client proves in connection with the defect report that the intervention is not the cause of the defect.
- 9.4 BSR may demand the reimbursement of its own expenses insofar as BSR has acted on the basis of a notification of defects without the client having proven a defect.
- 9.5 If BSR defaults on fulfillment / subsequent performance (by removing defects), the client may set a reasonable deadline for this. If the deadline expires unsuccessfully or if the fulfillment / subsequent fulfillment fails permanently otherwise, the client may choose to withdraw from the contract or demand a reduction of the remuneration (reduction) or claim damages within the scope of § 10.1. BSR may set the client a reasonable deadline for declaring whether it still requires fulfillment / subsequent performance. After futile expiry of this period, the client's right to fulfillment / subsequent performance is excluded.
- 9.6 The limitation period for claims due to defects is 12 months.
§ 10 Claims for damages, liability
- 10.1 Claims for damages against BSR, including its vicarious agents - for whatever legal reason - which require slight negligence, only exist if a material contractual obligation / cardinal obligation has been violated.
Claims for damages in this case are limited to EUR 100,000. BSR has taken out a public liability insurance for this amount.
- 10.2 Excluded from liability are, as far as it concerns claims for damages due to defects or damage to the object of performance:
- For damages beyond the immediate defect or damage to the subject of performance (consequential damages), such as loss of profit, loss of production of any kind, stagnation, inadequate quality or quantity, underachievement, damage or annihilation in the production materials, loss of use of any kind, insufficient profitability or efficiency, and similar;
Claims for bodily injury as well as property damage according to the Product Liability Act remain unaffected.
- 10.3 Claims for damages of the client become statute-barred after two years at the latest from the time at which the client obtains knowledge of the damage, or at the latest after three years from the time of the damaging event, regardless of this knowledge.
- 10.4 The liability of BSR according to the German Product Liability Act as well as for the injury of life, body and health and for the fraudulent concealment of a defect and the assumption of a guarantee for the condition of a thing remains unaffected.
- 10.5 Paragraphs 10.1 to 10.4 shall also apply in the event of any claims for damages by the client against employees or agents of BSR.
§ 11 Other disruptions in the provision of services, delay
- 11.1 Insofar as a cause for which BSR is not responsible, including strikes or lockouts, adversely affects the adherence to deadlines, BSR may demand an appropriate postponement of the deadlines. If the effort increases due to a cause in the area of responsibility of the client, BSR may also demand the reimbursement of the additional expenditure.
- 11.2 If the client is in default of payment to BSR, then BSR shall be entitled, after a reasonable deadline, to withdraw from the contract or terminate the contract and assert the damage suffered by it (for example, loss of profit, time worked in vain).
- 11.3 In the event that insolvency proceedings are opened against the client's assets, BSR has an extraordinary right to terminate the contract. In this case, BSR is entitled to withdraw from the contract.
§ 12 OffsettingOffsetting by the client is only permitted if it is reported in writing one month in advance and refers to undisputed or legally established claims. The set-off declaration must be made in writing and specify the claim and counterclaim exactly.
§ 13 Right of retentionA right of retention of the client is only possible against a claim from the same contractual relationship.
§ 14 Rights of use
- 14.1 The client is entitled to use the submitted reports, analyses and plans for the intended purpose.
- 14.2 All other rights of use remain with BSR.
§ 15 Confidentiality
- 15.1 BSR undertakes to use all knowledge of trade secrets obtained under the contractual relationship and of information designated in writing as confidential only for the performance of the contract and to treat it as confidential on an indefinite basis.
- 15.2 The confidentiality obligation does not apply to ideas, concepts, know-how and techniques related to the provision of services, as well as to data already known to BSR or data which were already known or known outside this contract.
- 15.3 BSR obliges its employees to maintain confidentiality.
- 15.4 BSR may include the name of the client and a brief description of the service rendered in a reference list. All other advertising information regarding the client will be discussed with him in advance.
- 15.5 The client hereby expressly agrees - without giving notice - that personal data will be processed within the scope of the admissibility of the German Federal Data Protection Act, insofar as this is necessary for the execution of the contractual relationship.
§ 16 Other agreements
- 16.1 The contract and its amendments must be in writing.
- 16.2 Unless otherwise agreed, the place of performance is Alpenrod.
- 16.3 If the client is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all rights and obligations of the parties to the contract is Koblenz. The same applies if the client does not have a general place of jurisdiction in Germany, relocates his domicile or habitual residence to another country after conclusion of the contract, or his domicile or habitual residence is not known at the time the complaint is filed. However, BSR is also entitled to sue the client at its general place of jurisdiction.
- 16.4 German law applies under exclusion of UN sales law and international private law.
- 16.5 If one or more provisions of these terms and conditions or a provision in the context of other agreements are or become invalid, this shall not affect the validity of all other provisions or agreements. Ineffective or missing clauses are to be replaced by effective clauses that come closest to the intended purpose.
As of: 18.04.2017