Sec. 1 Type of Service
- BEMO SYSTEMS places orders in the form of service contracts.
- Contract components include:
• the concluded service contract;
• the Customer’s service description;
• the Contractor’s offer;
• the provisions of the German Civil Code (BGB)
Sec. 2 Duties of the Contractor
- The Contractor must render the services requested from them pursuant to general valid DIN/EN standards, general technical approvals for the planned products, other related codes, public-law provisions and the state of the art. Should the above codes and/or regulations be amended during project execution, additional remuneration must be agreed upon for the Contractor’s additional expenses.
- The Contractor must consult with the Customer and the specialists involved in the planning process indicated by Customer as to their services.
- The Contractor’s services must be based on the Customer’s written instructions. If they have any concerns with regard to instructions since they deem them wrong, irrelevant or inexpedient, they will immediately inform the Customer in writing about this. Should the Customer insist on execution in writing despite reasonable concerns, the Contractor must follow this request, unless they would violate compulsory public-law provisions by doing so. In this case, the Contractor is released from liability for defects resulting from the Customer’s instructions.
- The Contractor shall notify the Customer in writing of all aspects relevant for the execution of contractual services; this applies particularly to aspects which might lead to cost increases or delays.
Sec. 3 Employment of Subcontractors
1. The Contractor may, at their discretion, have subcontractors render individual services. The Contractor needs not inform the Customer about them commissioning subcontractors.
2. The Customer may prohibit service provision by subcontractors only if they have a reasonable interest in all the services being rendered by the Contractor themselves.
Sec. 4 Duties of the Customer
- The Customer must assist the Contractor with executing the order and, particularly, provide answers within a reasonable period, make timely decision and submit required documents to be provided by them in a timely manner so that deadlines will be met.
- The Customer must appoint a representative who will be responsible for the Customer’s decisions and accepting the Contractor’s notifications and declarations.
- The Customer must immediately inform the Contractor about any changes to the project, regardless of the reason for which they are necessary and of who informed the Customer about them being required; such notifications must be made in writing. The Customer shall be liable for the consequences of delayed notification.
- The Customer or any subcontractors commissioned by them and authorised to examine must check any planning services, static and structural-physical calculations provided by the subcontractor.
Hence, BEMO’s services do not represent the final execution planning.
Sec. 5 Representation of the Customer
- To the extent required for their services – and following the Customer’s express instructions – the Contractor may represent them at meetings with other companies involved in the project.
- In the event of such representation, the Contractor must prepare adequate documentation and submits this to the Customer for approval.
- The Contractor may not accept legal duties resulting in costs for the Customer – particularly by concluding, supplementing and amending contracts or execution plans –, unless there is imminent danger and the Customer is prevented from deciding on time.
Sec. 6 Planning Changes
If it is necessary to totally or partially render again, process or otherwise change any service steps as a whole, basic services or significant parts thereof for reasons beyond the Contractor’s control, these services are deemed additional services not included in contractual remuneration. Prior to executing such changes, the Contractor is to submit to the Customer revised tenders for the required scope of such changes.
Sec. 7 Documents
After the Contractor’s services were completed and approved, the Customer may request that any documents relating to the construction project be returned to them. If the documents need not be returned, the Contractor must store them at their cost for up to 5 years after service completion.
Sec. 8 Copyrights Regarding Assistance with Building Designs
- In the case where the Contractor was requested to provide assistance with the architectural design, they grant the Customer an exclusive right to realise themselves and/or have third parties realise the contract item pursuant to the plans and to freely use the drawings, renderings and similar image presentations prepared by the Contractor.
- The contractual remuneration includes remuneration for assigning the usage right under para. 1.
- In consultation with the Customer, the Contractor may enter, take commercial photos of the contract object and use such photos for commercial purposes also after contract fulfilment, unless this is contrary to the Customer’s legitimate interests in confidentiality.
Sec. 9 Offsetting and Right of Retention
Offsetting or asserting a right of retention against the Contractor’s claim for remuneration is admissible only against undisputed or legally determined claims under this Contract.
Sec. 10 Liability for Defects; Acceptance
- Liability for defects shall be governed by the provisions on service contracts under the German Civil Code (BGB – Bürgerliches Gesetzbuch), unless the following provides otherwise.
- The Contractor is exempted from liability for defects with their services to the extent they are based on the Customer’s written instructions and the Contractor voiced concerns in this regard (sec. 2 para. 3 of this Contract).
- Should the Customer assert claims against the Contractor due to defects with the building, the Contractor may request that they be commissioned with defect rectification first. The Customer may reject this only if this is unacceptable for them in individual cases.
- Should the Customer assert claims against the Contractor due to defects within the control of third parties, they may request the Customer to apply extra-judicial measures to have such third party fulfil their claims for defects.
Sec. 11 Early Contract Termination
- This Contract must be cancelled in writing.
- If the Contract is cancelled for causes within the Contractor’s control, they have a claim for remuneration only for the services evidently provided up to this moment, including ancillary costs resulting from this.
- Should the reasons for Contract cancellation for cause be beyond the Contractor’s control, they have a claim for the contractual remuneration.
- Saved expenses must be offset against this. The Parties have a right to demonstrate that saved expenses were higher or lower.
- Para. 2 and 3 shall apply accordingly if the Parties cancel the Contract mutually.
- Early Contract termination has no effect on sec. 7 and 8.
Sec. 12 Place of Fulfilment; Venue; Applicable Law
- The place of fulfilment of the services is the Contractor’s place of business.
- This Contract is subject to German law.
- The courts of Heilbronn are the venue.
Sec. 13 Application of General Terms and Conditions
Application of the Customer’s general terms and conditions is hereby excluded. Such terms do not become applicable by the Contractor – being aware of these terms – rendering their services or accepting payments subject to no conditions.