General Terms and Conditions - C. Gielisch GmbH

General Terms and Conditions – C. Gielisch GmbH


Preamble


C. Gielisch GmbH is a firm of neutral surveyors and loss adjusters servicing national and international insurance markets, national and international cargo and shipping industries, and all associated businesses. The general terms and conditions of C. Gielisch GmbH apply to these fields of business and any other services or ancillary activities rendered outside the mentioned fields of business.


§ 1 General Provisions and Scope


1. The following terms and conditions govern all legal relationships and services, including consultancy services, the provision of information, as well as ancillary services rendered and other subsidiary obligations of C. Gielisch GmbH to its Principals in carrying out instructions. Terms or conditions issued by the Principal which diverge from, or are contrary to these terms and conditions will only become part of the contract if they are explicitly confirmed in writing and acknowledged by C. Gielisch GmbH. By issuing follow-up instructions or pursuing an ongoing business relationship, the Principal declares its agreement with the general terms and conditions of C. Gielisch GmbH.


2. The general terms and conditions are available on request at any time from C. Gielisch GmbH. They can be consulted at the company's offices or on its website.


§ 2 Conclusion of Contract and Receiving Instructions


1. The acceptance of an instruction will only become binding and effective for C. Gielisch GmbH if it is confirmed in writing by C. Gielisch GmbH. The content and scope of the written confirmation of the instruction is decisive for the contract. Any amendments, supplements, additional verbal agreements, warranties, quality stipulations or guarantees of any kind must also be confirmed in writing to be effective. This also includes information or assurances given by employees of C. Gielisch GmbH or experts engaged by C. Gielisch GmbH.


2. The requirement for written form also applies to any amendment or revocation of this written-form clause.


§ 3 Obligations of the Principal


1. The Principal must provide C. Gielisch GmbH completely, at no charge, as well as in a timely manner at its own cost, unless otherwise agreed in writing, with all information and documents required for the execution of the instructions, such as invoices, drawings, calculations, correspondence, details of pre-existing damage and/or hidden defects, and operating hours. Where inspections are required, the Principal must provide access to the site for C. Gielisch GmbH. Where necessary for due execution of the instructions, the Principal is also obliged to obtain information and documents from the parties involved or third parties and disclose them to C. Gielisch GmbH, or confer authority on C. Gielisch GmbH to obtain the necessary information and documents.


2. C. Gielisch GmbH must be informed in a timely manner, and without express request, of all events and circumstances that could be of significance for the performance of services by C. Gielisch GmbH.


3. If the Principal's instructions include the provision of a valuation, then the Principal is obliged to check the valuation after receipt and immediately notify the Agent of any obvious errors or defects.


4. If the Principal's instructions include a loading survey, then, in addition to the requirements of Paragraph 1, the Principal is obliged to see that the following information and documents are provided completely and in a timely manner:

  • Procedural instructions defining work processes and sequences of operations in order to ensure health and safety,
  • an accurate calculation of load securing measures,
  • transport documents,
  • the name of a responsible person on-site who is authorised to receive directions.


5. If the Principal does not fulfil Paragraph 1 or 2 or 3 or 4 above, then the execution of the instructions will be at the sole risk of the Principal, unless C. Gielisch GmbH is partly to blame. The resulting additional costs will be borne by the Principal, and C. Gielisch GmbH will reserve the right to assert further legal claims in this event.


§ 4 Obligations of the Agent


1. C. Gielisch GmbH undertakes to perform its services impartially, neutrally, and to its best knowledge and belief using the diligence of a professional expert.


2. C. Gielisch GmbH may only ensure a specific outcome, in particular an outcome desired by the Principal, by objective and impartial application of its expertise.


3. For valuations of any kind, the value determined is applicable to the condition of the item at the time the valuation was provided. Unless otherwise agreed in writing, the value determined is the technical value of the item. Statements of market value or the item's economic viability are non-binding.


4. If instructed to undertake inspections, in particular loading surveys, C. Gielisch GmbH will not be responsible for the accuracy or verification of the safety programs (such as load-securing/calculation programs, technical equipment, implementation rules etc.) or safety regulations on which the inspections are based, unless otherwise agreed in writing. Also, C. Gielisch GmbH does not bear any responsibly for the appropriateness of checks on the technical safety of handling equipment and load-securing equipment, unless this is explicitly part of its instructions.


5. In risk assessments, the suggestions, advice or comments of C. Gielisch GmbH will always be construed as recommendations made to the Principal or person it has authorised to receive directions, and the execution of any or all such recommendations cannot and should not guarantee an enhanced or otherwise defined level of safety, unless otherwise agreed in writing.


6. The scope of the services to be performed by C. Gielisch GmbH will be established in writing at the time the instruction is given. The performance of part of the services is permissible. Any changes and/or additions to the established scope of the instructions that may arise while the instructions are being duly executed must additionally be agreed in writing in advance by the contracting parties. If, in view of the changes or additions, the Principal cannot be expected to comply with the contract, the Principal will have the right to withdraw from the contract. However, in this event, the Principal shall pay the agreed remuneration or, in the absence of an agreement, a reasonable remuneration.


7. C. Gielisch GmbH is strictly not obliged to check the completeness and accuracy of data, information or other services provided by the Principal, in so far as there are no grounds for this in consideration of the individual circumstances, or this is not explicitly included in the instructions.


8. In order to execute its instructions or to perform its services, C. Gielisch GmbH is entitled, at the cost of the Principal, to undertake the necessary and usual investigations and tests at its dutiful discretion, to collect information, to make inquiries, to undertake trips and conduct on-site inspections, and to produce or have produced photographs, drawings, images or other documentation, without requiring the specific consent of the Principal. However, should investigations become necessary that are unforeseen or time-consuming or costly in relation to the purpose of the experts' report, then the prior consent of the Principal will be required.


9. C. Gielisch GmbH has the right to use the services of experts to carry out the instructions.


10. If the life or health of the employees of C. Gielisch GmbH is at risk while carrying out the instructions, then C. Gielisch GmbH will have the right to refuse to act on the instructions. The costs incurred thus far shall be refunded by the Principal.


11. If the documents or information of § 3 Paragraph 4 do not reach Gielisch GmbH in due time or are incomplete, then the loading survey will be carried out to the best knowledge and belief of the surveyor. Alternatively, if the conditions of the first sentence of this paragraph are satisfied, C. Gielisch GmbH will also have the right to refuse the instructions. The costs incurred thus far shall be refunded by the Principal.


12. C. Gielisch GmbH shall provide two copies of its experts' report. Additional copies will be billed separately. C. Gielisch GmbH will not be liable for statements or information provided verbally.


§ 5 Confidentiality


1. C. Gielisch GmbH shall observe its duty to maintain confidentiality. C. Gielisch GmbH shall ensure that any experts’ reports or other facts or documents relating to the Principal or the instructions that become known to it while rendering its services are not disclosed, used or transmitted without authorisation. The duty to maintain confidentiality includes all non-public facts, and will apply beyond the duration of the contractual relationship. The duty to maintain confidentiality applies to all persons working for C. Gielisch GmbH. The C. Gielisch GmbH shall ensure that the duty to maintain confidentiality is observed by all employees.


2. C. Gielisch GmbH is authorised to disclose, transmit or appropriate for its own use the knowledge acquired while preparing experts' reports if obliged to do so in conformity with the law, or if the Principal confirms explicitly in writing that C. Gielisch GmbH is released from its duty to maintain confidentiality.


3. C. Gielisch GmbH may make documentation copies of written documents that are surrendered for inspection or submitted for the execution of instructions.


§ 6 Copyright Protection and Exploitation of Services


1. C. Gielisch GmbH retains the copyright for services it has rendered, in so far as they can be protected under copyright law.


2. The scope of the services to be rendered by C. Gielisch GmbH will be established in writing at the time the instruction is given. The Principal may use the experts’ report drawn up by C. Gielisch GmbH within the scope of its instructions, and/or the services rendered by C. Gielisch GmbH including all associated tables, calculations and other details only for the purposes agreed at the time the instruction was given.


3. The transmittal and use of the services rendered by C. Gielisch GmbH for purposes beyond those contractually specified will only be permitted by written confirmation in advance from C. Gielisch GmbH, unless permission for transmittal to a specific third party is clear beyond doubt from the instruction.


4. Any publishing of an experts' report will require the consent of C. Gielisch GmbH, and if consent is granted, the source of the report must be stated. The experts' report may only be reproduced for the purposes of its intended use.


§ 7 Remuneration and Terms of Payment


1. C. Gielisch GmbH is entitled to be paid remuneration for the services it has rendered. Where there is more than one Principal, they shall be jointly and severally liable.


2. After the instructions have been carried out, or upon presentation of the invoice of charges, the remuneration is payable in full immediately, or by a date specified on the invoice.


3. For the invoicing of services, the value-added tax applicable at the time of conclusive execution of the instructions will be shown separately and levied in addition to the remuneration for carrying out the instructions.


4. The basis for the calculation of invoices is C. Gielisch GmbH's applicable scale of charges, which is known to the Principal. This will not apply if a fixed price or other basis of assessment has been explicitly agreed in writing.


5. Money orders, cheques or bills of exchange will only be accepted by special written agreement, with the addition of all collection fees and discount charges, and only on account of performance. They will be recognised as payment once they have been redeemed.


6. A set-off or withholding of payment by assertion of a counterclaim is excluded, unless the counterclaim is uncontested and has been legally established.


7. If there are several outstanding bills, C. Gielisch GmbH is entitled to determine which debt will be discharged by the payment.

 

 

 

8. If the Principal fails to settle an invoice on time, C. Gielisch GmbH may withdraw from the contract or claim damages in lieu of performance. In the event of delayed payment, C. Gielisch GmbH will be entitled to default interest of 5% above the base rate of interest, subject to the assertion of any further loss. However, the Principal will be permitted to demonstrate that C. Gielisch GmbH has not suffered any loss or that the loss is substantially lower. The default interest will be higher if C. Gielisch GmbH demonstrates a debit at a higher interest rate. C. Gielisch GmbH will also be due a flat fee of EUR 5.00 for each reminder sent.


9. Should C. Gielisch GmbH become aware of facts indicating that the Principal is no longer creditworthy, C. Gielisch GmbH will be entitled to demand advance payments or securities prior to execution of instructions. In such cases C. Gielisch GmbH may also withdraw from the contract after a reasonable grace period, or demand damages for breach of contract. Subject to the assertion of a claim for a higher loss, these damages will amount to 15% of the remuneration, unless the Principal demonstrates that no loss or a lower loss was incurred. This will also apply if the payment conditions are not met, if cheques or bills of exchange fail to be honoured, if payment is suspended, if insolvency proceedings are instituted with respect to the Principal's assets, or if the institution of such proceedings is refused for lack of assets on the part of the Principal.


10. Advance payments to cover costs may be demanded. Partial invoices may be issued by C. Gielisch GmbH for services already rendered. If the Principal does not settle a partial invoice on time despite being granted a grace period, C. Gielisch GmbH will have the right to refuse the further execution of instructions, to withdraw from the contract, or to demand damages for breach of contract.


11. Until the remuneration has been paid in full, the experts' report and the knowledge gained in the course of investigations will remain the property of C. Gielisch GmbH.

 

§ 8 Delay, Delivery Period, Default

 
1. The deadlines for execution of instructions by C. Gielisch GmbH are not binding unless compliance with a deadline is explicitly agreed in writing.


2. Binding delivery periods for the provision of experts' reports and/or services will commence on conclusion of the contract. If C. Gielisch GmbH requires documentation from the Principal, or if a prepayment has been agreed, then the period will not commence until the prepayment or documentation has been received. The later time of receipt will be decisive.


3. If a delivery period or delivery deadline is exceeded, irrespective of if it is a binding or non-binding period or deadline, then C. Gielisch GmbH will enter into default if the Principal has set a reasonable time limit for delivering the service, and C. Gielisch GmbH is responsible for the delay in performance and/or delay in delivery. A default in delivery will not arise in the event of a force majeure or other unforeseeable impediments for which C. Gielisch is not responsible.


4. In addition to the delivery, the Principal may also demand compensation for the damages caused by the default if the Principal can demonstrate that C. Gielisch GmbH acted with intent or gross negligence.


5. If the Principal enters into default of acceptance, or if the Principal fails to meet the obligations to cooperate which are incumbent upon it, then C. Gielisch GmbH will be entitled to claim for damages.


§ 9 Termination


1. The contract may be terminated in writing at any time for good cause by either the Principal or C. Gielisch GmbH. Notice of termination must be given in writing. Unless otherwise stipulated in the contract, termination without cause is excluded.


2. The Principal will have good cause to terminate the contract if C. Gielisch GmbH flagrantly violates its expert obligations even after receiving prior warning to no avail from the Principal, in particular its obligation to provide the service objectively, independently and impartially.


3. C. Gielisch GmbH will have good cause to terminate the contract if the Principal refuses to collaborate as required, if the Principal attempts unduly to falsify the findings of the experts' report / the service rendered by C. Gielisch GmbH, if the Principal suffers financial collapse or debtor's default, or if C. Gielisch establishes that it does not have the necessary expertise to provide the service.


4. Should the contract be terminated for a good cause for which C. Gielisch GmbH is responsible, C. Gielisch GmbH will only be able to demand remuneration for the part service that has been rendered up to the time of termination, if an objective use for the part service exists for the Principal. In other cases, C. Gielisch GmbH reserves the right to claim remuneration in the same way as for services carried out contractually. Taking account of any expenses saved, the remuneration will be 15% of the remuneration for the services not yet rendered by C. Gielisch GmbH, unless the Principal demonstrates that the contractual workload is lower or the expenses saved are greater.


§ 10 Warranty


1. In so far as C. Gielisch GmbH renders services, the parties hereby agree that C. Gielisch GmbH will only owe a service and not a specific outcome, and it is solely the remit and risk of the Principal to make decisions based on the services rendered.


2. In the event of defects within warranty, C. Gielisch GmbH may avail itself of its right to cure the defect. At the election of C. Gielisch GmbH, the cure will comprise removal of defects (rectification) or replacement (resupply).


3. The cure will be undertaken within 21 days. If the cure also proves to be defective, then C. Gielisch GmbH will have the further right to cure the defect within a period of 21 days from written notification of the defect.


4. If, and not until the cure is conclusively and earnestly rejected, not carried out on time, or fails again after the second provision of a cure, the Principal will have the right to demand, at its own choice, a reduction in the remuneration or a rescission of the contract within the provisions of the law. Further warranty rights are excluded.


5. In the event of a minor breach of contract, in particular in the event of minor defects, the Principal will not be entitled to withdraw from the contract. The Principal will also not be entitled to withdraw from the contract if C. Gielisch GmbH is not responsible for a breach of duty associated with a defect.


6. The Principal must provide written notification of any obvious defects immediately after detection, and any hidden defects as soon as they are discovered and within the legal warranty period, giving a precise description of the defect, provided the Principal is a merchant or legal entity under public law; natural persons must provide notification no later than one year after delivery.


7. A claim for damages remains unaffected if warranted features are absent.


8. All warranty rights become statute-barred within one year of the transfer of risk (generally on delivery).


§ 11 Liability


1. C. Gielisch GmbH will be liable for losses, regardless of their legal basis, only if C. Gielisch GmbH, its legal representative or vicarious agent caused these losses with intent or gross negligence, or if C. Gielisch GmbH, its legal representative or vicarious agent negligently breached an essential contractual obligation. In the event of a breach of essential contractual obligations, C. Gielisch GmbH's liability for damages will be limited to foreseeable losses typical of the contract.


2. C. Gielisch GmbH will not be liable for natural spoilage, shrinkage or deterioration due to the nature of the goods, whose onset or cause can be directly or indirectly linked to a loss incident that has already occurred, or which had already started previously. If damage occurs as a result of delays, incorrect storage or handling of salvaged goods during or after their salvage, including as a result of the influence of third parties, C. Gielisch GmbH will only be liable if it has caused these actions.


3. Liability for indirect consequential losses, including consequential losses typical for the contract, is excluded.


4. In all other cases, the liability of C. Gielisch GmbH will be limited to a maximum of EUR 250,000.00 per instruction, regardless of the number of claimants.


5. The Principal must immediately notify C. Gielisch GmbH in writing of any damages to be paid for by C. Gielisch GmbH.


6. The above liability provisions will not affect the liability for damages in the event of injury to life, limb or health.


7. Where claims for damages against C. Gielisch GmbH are excluded, this exclusion also applies in respect of the personal liability of employees of C. Gielisch GmbH.


8. The Principal will be liable for losses or damages sustained by C. Gielisch GmbH as a result of intentional or grossly negligent breach of the Principal's contractual obligations.


9. The Principal must release C. Gielisch GmbH from the claims of third parties that result from contractual activities undertaken by C. Gielisch GmbH, unless C. Gielisch GmbH has acted with intent or gross negligence.


10. Claims for damages that are not subject to the short limitation period pursuant to Section 634a of the German Civil Code will become statute-barred three years after the Principal has received the experts' report / service.

 

§ 12 The Principal's Property and Documents; Safekeeping


1. If C. Gielisch GmbH takes possession of the Principal's property or documents for the purposes of carrying out instructions, then they must be taken back by the Principal on completion of instructions. If they are not taken back immediately, C. Gielisch GmbH is only obliged to retain the property or documents in safekeeping for a period of two months. During this time, C. Gielisch GmbH shall only provide the level of care it affords to its own property.


2. After two months C. Gielisch GmbH may dispose freely of the property and documents in its possession. Any disposal costs will be borne by the Principal.


§ 13 Applicable Law, Interpretation, Place of Performance, Jurisdiction


1. The contract alone is authoritative for the relationship between the contracting parties. The contractual relationship is subject to German law. In interpreting this contract / these provisions, the original language version (German) will prevail in case of doubt. The UN Convention on Contracts for the International Sale of Goods is excluded.


2. The place of performance for all services is the registered office of C. Gielisch GmbH.


3. The exclusive place of jurisdiction for all disputes is the registered office of C. Gielisch GmbH if the Principal is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or operating with special funds under public law, or if claims are asserted through debt enforcement proceedings. The same place of jurisdiction will apply if the Principal has no general place of jurisdiction, if it has relocated its place of residence or usual abode abroad following conclusion of the contract, or if its place of residence or usual abode is unknown at the time an action is brought. For all other claims made by C. Gielisch GmbH against the Principal, the place of jurisdiction will be the Principal's place of residence, provided the Principal is not a merchant.


§ 14 Storage and Processing of Personal Data


The Principal hereby agrees that C. Gielisch GmbH may store and process personal data for its own purposes as defined by the Federal Data Protection Act.


§ 15 Severability Clause


Should any present or future provision of this contract be or prove to be legally invalid or unenforceable in whole or part, the validity of the remaining provisions will remain unaffected. The same will apply should it become apparent that the contract contains a legal gap. The parties shall undertake to replace an invalid or unenforceable provision or fill any gap with an appropriate provision which, where legally possible, most closely approximates the contracting parties' intentions, or what would have been their intentions according to the spirit and purpose of the contract had they considered the matter on completion of the contract or on subsequent addition of a provision.


Düsseldorf, December 2013