General Terms and Conditions - C. Gielisch GmbH
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: www.gielisch.de/AGB.
§ 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, site maps, 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. The Principal must give prior notice of inadequate lighting or inadequate power supply at the inspection site. In preparing for site visits, the Principal must immediately draw attention to any risks, hazardous substances or microbial contamination that may be present at the site. 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 Clause 1 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 will provide a digital copy of its experts’ report by email. Additional copies will be billed separately. C. Gielisch GmbH will not be liable for statements or information it provides 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 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.