§ 1 Applicability
1. These General Terms and Conditions are part of every contract concluded between the Laboratorium für Straßen- und Betonbau Trier (sbt), and its contracting entity (CE).
2. General Terms and Conditions of the CE do not apply.
The General Terms and Conditions of the CE shall only apply insofar as they are congruent with the General Terms and Conditions of sbt.
As far as the General Terms and Conditions contradict each other, they shall be ineffective and the legal regulation shall apply. If there is no legal regulation, a supplementary interpretation of the contract must be established.
3. In the event that individual clauses of the General Terms and Conditions are invalid, the gap in the contract shall be filled by the statutory provisions, alternatively by a supplementary interpretation of the contract. In all other respects, the validity of the General Terms and Conditions shall remain unaffected.
§ 2 Offers and conclusion of the contract
1. The placing of an order by the CE requires a written confirmation by sbt.
If the order is placed on the basis of an offer by sbt, the contract shall not be concluded until sbt has at least issued an order confirmation in writing.
2. Any changes or additions to the contract are only effective if they are agreed in writing. This also applies to an amendment for this text form clause. This text form clause, however, does not apply to changes or additions if sbt expressly or impliedly informs the CE that an agreement shall be binding even without a compliance with the text form.
3. Assurances must be made in writing to be effective.
§ 3 Remuneration
1. The respectively valid price list of sbt shall be the contractual basis, and is made available to the CE as an attachment.
2. An appropriate time effort shall be invoiced for sampling, site visits and participation in meetings. Furthermore, travel costs as well as cash expenses, travel costs and expenses etc. will be charged. If overtime, night work, work on nights, Saturdays, Sundays and public holidays are required, the personnel costs shall be increased in accordance with the current price list.
3. For engineering services (expert opinions, statements, etc.), the corresponding additional expenditure will be reimbursed at the hourly rates of the currently valid price list.
4. Services or tests that are not listed in the currently valid price list shall be charged according to the work effort or at customary rates (e.g. BASt).
5. In the case of arbitration investigations, a surcharge shall be levied in accordance with the additional costs for the multiple investigations required by the regulations.
6. In addition, the applicable statutory value-added tax will be charged on the invoice amount.
§ 4 Scope of services, and obligations of the CE to cooperate
1. The scope of the examination is based on the specifications of the CE.
2. If the scope of services has been modified by an order confirmation from sbt, this shall be deemed to be sbt's new offer.
3. If the exact scope of an examination upon receipt of a sample is not clearly agreed by the contracting entity, the examinations shall be carried out in accordance with the applicable standards, delivery conditions or other relevant provisions.
4. The orders are carried out in accordance with recognised technical rules and in compliance with the applicable regulations.
5. The freight costs for the delivery of the samples to sbt shall be borne by the CE.
6. If the CE does not specify the storage time for samples that were not completely consumed during the examination, they will be disposed of by sbt after the test report has been prepared.
7. The right of access for the performance of field examinations is to be obtained by the CE. It must also be used to determine and specify the position of cables and supply lines, or to provide a site plan with routed cables and supply lines. Unavoidable damage to fields shall be borne by the CE.
8. The contracting entity shall guarantee that the area to be sampled by sbt is free of explosive ordnance. If it turns out, during the performance of sbt's activities, that explosive ordnance is present on the site to be sampled, the contracting entity shall arrange - at his own expense - to create or commission the creation of an environment which is free of any explosive ordnance.
9. If the CE commissions the extraction of representative samples, the CE shall provide the appropriate on-site instruction measures. sbt must be fully informed of the specific location (including known building defects). If this is not known to the CE himself, this must also be communicated.
10. There won't be a subsequent examination of the technical documents (including provided extraction records and logs) or the samples for their suitability (representativeness). This does not apply if sbt is commissioned to take representative samples, and has extracted them itself.
§ 5 Auxiliary staff
1. sbt is also entitled to involve third parties (e.g. experts) in the processing of the order at its discretion. The contracting party shall continue to be sbt.
2. Results from external laboratories will be indicated in the report.
§ 6 Liability
1. The CE is obliged to grant sbt the right to rectify the defects twice. If the two attempts for the rectification of defects also fail for reasons for which sbt is responsible, the CE may declare a withdrawal from the contract, or reduce the fee proportionately.
2. Liability is excluded for damages, including consequential damages, which are slightly negligently caused by sbt.
3. The exclusion of liability does not apply for damages from injury to life, body or health which are based on a negligent breach of duty by sbt, or an intentional or negligent breach of duty by a legal representative or vicarious agent of sbt.
4. The exclusion and limitation of liability shall also not apply to other damages which are based on a grossly negligent breach of duty by sbt, or on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of sbt.
5. The exclusion and limitation of liability shall also not apply to damages based on a breach of cardinal obligations. Cardinal obligations are such obligations which enable a proper execution of the contract possible in the first place, and on the fulfilment of which the contractual partner may rely.
Liability is therefore limited to contract-typical and foreseeable damages.
6. The assignment of claims for defects against sbt is excluded, unless the CE is a consumer.
7. Further conclusions, assessments and derivations which have not resulted from the placement of the order are inadmissible and cannot justify any liability. This particularly applies, if the order represents the examination of a part of an overall construction or a factual connection. Therefore, no conclusions can be drawn from the partial examination of the overall construction.
§ 7 Premature termination
1. In the event of premature termination of the contract by the CE prior to completion, the CE shall reimburse sbt for all costs incurred and indemnify sbt against all liabilities towards third parties in connection with the provision of services.
2. The costs will be invoiced according to the agreed hourly rate.
3. If, upon premature termination of the tests, the examinations are so far advanced that the results are available for approval, the CE shall bear 90 percent of the examination costs.
4. The assertion of further claims remains unaffected by this.
§ 8 Copyright protection
1. sbt shall retain the copyright to the services it has provided, as far as they can be copyright protected.
2. In this respect, the CE may only use the test certificates, preliminary examinations and expert opinions with all lists, calculations and other details produced within the scope of the order for the purposes which were agreed-upon.
3. Any further provision of the test certificates, expert opinions and preliminary examinations to third parties, any other type of use or any amendment or shortening of the text is only permitted for the CE with the express and written consent of sbt.
4. Any publication of the test certificates, expert opinions and preliminary investigations requires the express and written consent of sbt.
5. Copies are only permitted within the scope of the intended use of the test certificates, expert opinions and preliminary examinations.
§ 9 Limitation of actions
1. Claims of the CE for material defects shall become statute-barred one year after delivery/acceptance.
2. Excluded from this are claims for defects from consumers as well as claims for damages due to injury to life, body or health and/or claims for damages due to grossly negligent or deliberately caused damages by sbt.
In this respect, the statutory limitation periods shall apply.
§ 10 Place of jurisdiction and place of performance
1. The contractual relationship between the CE and sbt shall be governed exclusively by the law of the Federal Republic of Germany.
2. Place of performance for all obligations arising from the contractual relationship is the registered office of sbt.
3. All legal disputes arising from the formation, existence and termination of the contractual relationship - insofar as the contracting entity is an entrepreneur pursuant to § 14 BGB (German Civil Code) - shall exclusively be the court with local jurisdiction for sbt's registered office.