General terms and conditions for construction work by Kriwet Projektmanagement GmbH
§ 1 Formation and subject matter of the contract
The contract between the parties came about because the subcontractor was commissioned by the general contractor to carry out the services described in the subcontractor's offer or in the list of services in writing, in electronic form or in text form. These AVB apply to this contractual relationship. These AVB also apply to additional services within the meaning of Section 1 Paragraph 4 Clause 2 VOB/B, unless the parties have agreed otherwise.
§ 2 Contract components
(1) The following legal and technical parts of the contract in the specified order are decisive for the type and scope of the services and deliveries to be carried out as well as for the processing:
a. Legal components of the contract:
aa) the order confirmation,
bb) the provisions of these AVB,
cc) the construction schedule, if available
dd) the general terms and conditions for the execution of construction work (VOB/B),
ee) the statutory work contract law of the German Civil Code.
b. Technical contract components:
aa) the list of services or the offer of the subcontractor,
bb) the General Technical Regulations for Construction Works (VOB/C),
cc) regulations of the professional associations and the competent authorities.
(2) In the event of contradictions, the above order also represents the legal priority of the parts of the contract.
(3) General terms and conditions of the subcontractor do not apply.
§ 3 Remuneration
(1) The contract price is a fixed price.
(2) The contract price includes everything that is necessary for the proper, complete and timely execution of the services, as well as all costs incurred to fulfill the contractual obligations of the subcontractor.
(3) The general contractor makes payments according to the individual agreement.
§ 4 Execution Dates/Contractual Penalty
(1) The contract dates are determined according to the order letter from the general contractor. The dates stated there are binding.
(2) In the event of culpable non-compliance with the contractual deadlines, the subcontractor shall be liable for all damage and disadvantages incurred by the general contractor.
(3) The general contractor reserves the right to make changes to the schedule within the framework of the overall schedule. If such a change occurs and the subcontractor is informed of the postponement in good time, the number of agreed working days for the execution of the overall or individual service must be observed, unless the entire schedule would be disrupted so seriously that the execution deadline would be exceeded working days would be unreasonable.
(4) The general contractor is entitled to demand a contractual penalty for each calendar day from the subcontractor for each case of culpable exceeding, up to the amount of 5% of the net order value, without proof of damage or disadvantages being required. The amount of the contractual penalty results from the order letter from the general contractor. The agreement of a contractual penalty does not exclude the assertion of further claims. Contractual penalties that have already been incurred are not canceled by agreeing new dates.
§ 5 Execution
(1) The subcontractor must name the construction manager responsible according to the state building regulations before starting work and provide them at the start of work.
(2) At the request of the general contractor, the subcontractor must keep a construction diary and submit it to the general contractor.
(3) The subcontractor is responsible for accommodating and transporting workers and building materials.
(4) Tools such as scaffolding etc. are to be provided by the subcontractor and are included in the final price. The subcontractor is responsible for setting up the construction site. This also includes - but not only - the preparation of the necessary storage and workplaces, the necessary lighting and the inspection of the access and exit routes to the construction site. The subcontractor informs the general contractor at least seven days before the start of the work of the necessary areas for the construction site equipment, in the case of shorter orders immediately after the order has been placed.
(5) The subcontractor is aware that it may be necessary to order weekend work. The subcontractor is responsible for all approvals for work outside the statutory working hours. Night and weekend work is not remunerated separately.
(6) The subcontractor must check the materials and documents handed over to him for the execution of his work in all points immediately upon receipt, in particular the dimensions. From handover, the subcontractor must secure the materials against damage, loss and theft until final acceptance.
(7) Before starting work, the subcontractor must check the condition of the building to determine whether he can carry out his work without risk and subsequent defects. Objections must be made in writing before work begins, provided that the causes of the concerns are apparent before work begins.
(8) The subcontractor is obliged to use only flawless material for his construction work and to have the work carried out by trained, reliable specialist personnel in accordance with the recognized rules of construction. The subcontractor must take measures to protect their own services during the construction period up to final acceptance and constantly check whether the protective measures taken are sufficient. The general contractor is not liable for damage resulting from the breach of the aforementioned obligation.
(9) Soiling of public and non-public roads, paths and squares caused by him must be removed by the subcontractor. The ongoing disposal of waste in the broadest sense is also the task of the subcontractor. If a claim is made against the general contractor for the removal of waste or dirt caused by the subcontractor, he has a right to indemnification or payment from the subcontractor.
§ 6 performance changes
(1) The subcontractor only has to carry out changed or additional services (supplements) and they are only to be remunerated by the general contractor if the subcontractor receives an order for this from the general contractor before the start of the work. The order must be given in writing.
(2) If the general contractor requests service changes or additional services, the subcontractor must submit a written, verifiably priced offer free of charge within the period specified by the general contractor, otherwise within two weeks, which shows the cost increase or savings to which the change requests will lead and what effects they will have on the construction process. The subcontractor cannot demand reimbursement of the costs for the supplement.
(3) The price for the changed or additional services is to be agreed on the basis of the subcontractor's order calculation, taking into account the additional and reduced costs.
(4) The general contractor has the right to order the execution of changes to services and to request the execution of additional services if the subcontractor and general contractor are at the time of the order or request about the amount of remuneration with regard to the changed or additional services and /or have not yet agreed on the impact on the date. In this case, the contracting parties will subsequently determine the changed or additional remuneration and any scheduling effects within a reasonable period of time based on the remuneration standard according to Section 3. However, the subcontractor can refuse to perform the services if the general contractor refuses to negotiate remuneration without an objective reason.
(5) If the subcontractor does not report delays in the execution periods and dates due to service changes or additional services at the latest when submitting his offer in accordance with Section 4, an extension of the contractually agreed execution time due to the service change or the additional service is excluded, unless , the need for extension is obvious.
(6) Until the final assessment of disputed supplements, invoices and payments shall be based on the undisputed amount of the supplement.
§ 7 Hindrance and Interruption of Execution
(1) The subcontractor must carry out his work in such a way that other contractors working on the construction site are not hindered. He must take care of all necessary coordination and information regarding the technical and temporal work process in good time.
(2) The subcontractor is obliged to immediately report in writing any impediments that call into question the timely execution of his work.
Section 8 Risk of Loss
The assumption of risk is based on § 7 VOB/B.
§ 9 Warranty rights
(1) The scope of the warranty rights is based on the provisions of the VOB/B. In particular, the subcontractor warrants that its performance has the agreed quality and conforms to the recognized rules of technology.
(2) The limitation period begins with the acceptance of the subcontractor service and is 5 years. If the general contractor complains about defects during the period of limitation, a new period of limitation according to Section 13 (5) No. 1 Sentence 2 VOB/B begins to run from the time of the written notification of defects for the services complained about.
§ 10 hourly wage work
Hourly wage work will only be remunerated if it has been expressly ordered in advance by the general contractor and corresponding hourly reports are submitted to the general contractor's site management for approval no later than the following working day. If it turns out later that the work calculated in the hourly wage is already included in the contractual service or is part of ancillary services, the hourly wage work will not be remunerated.
§ 11 Termination
If the general contractor terminates the contract with the subcontractor because the work is stopped as a result of force majeure or because the general contractor can no longer reasonably be expected to continue the work for an important reason set by the client, the subcontractor is only then not entitled to payment in these cases work carried out if the general contractor receives payment from the client for these subcontractor services. However, the general contractor is obliged to assert these claims against the client.
§ 12 Subcontracting
The subcontractor is not permitted to subcontract the order placed with him in whole or in part without the written consent of the general contractor.
§ 13 Acceptance
(1) The services of the subcontractor are formally accepted after complete completion. Partial acceptances, if expressly agreed, also take place formally. The acceptance of work to remedy defects in accordance with Section 13 Paragraph 5 No. 1 Clause 1 VOB/B is also formal. § 640 paragraph 1 sentence 3 BGB remains unaffected. Partial services that are no longer visible or accessible prior to acceptance are to be checked together after their completion, which the general contractor is to be notified of in writing. A written record of this must be drawn up. Such checks and logs do not constitute partial acceptance. If the general contractor does not object to the service, the assessment of the condition leads to a reversal of the burden of proof.
(2) The defects identified during acceptance must be remedied by the subcontractor immediately and within a reasonable period of time.
(3) The general contractor can also have defects remedied before acceptance at the expense of the subcontractor if the subcontractor does not remedy the defects reported by the general contractor despite a reasonable grace period. A (partial) termination is not required for this.
§ 14 Minimum wage, evidence
(1) The subcontractor is obliged to comply with minimum wage regulations and regulations on minimum conditions in the workplace and will confirm this in writing at the request of the general contractor, handing over the documents mentioned in paragraph 3. The same applies to any obligations towards holiday and social security funds, insofar as the general contractor may be liable for default.
(2) If the proof of payment of the minimum wage requested by the general contractor is not submitted by the time the final invoice is submitted or if the subcontractor has not paid the minimum wage, the subcontractor has a contractual penalty of 0,1% of the net final invoice total per employee, but no more than 2,5, XNUMX% of the net final invoice amount to be paid. If a claim is made against the general contractor for payment of the minimum wage for employees of the subcontractor, the contractual penalty will be offset against the general contractor's right of recourse against the subcontractor.
(3) The subcontractor shall provide the general contractor with the following documents upon request:
a) Proof of entry in the register of craftsmen (if required),
b) Copy of the social security card and, if applicable, the work permit of his employees,
c) Proof from the social insurance institution that there are no arrears in contributions (health insurance, trade association, etc.),
d) Proof of hours worked and the fees paid for this in connection with the contractual relationship between general contractor and subcontractor, anonymized if necessary.
If the subcontractor does not comply with the submission obligation, the general contractor can terminate the contract extraordinarily.
Section 15 Confidentiality
(1) The contracting parties are obliged to treat as strictly confidential and to keep secret all confidential information that they receive as a result of their business relationship with the other contracting party, both from the other contracting party and from third parties, in particular customers of the other contracting party. Confidential information in this sense is all information, analyses, calculations, studies, documents or other materials (whether they have been communicated orally, in writing or in any other way) that one contractual party has become aware of in connection with the business relationship with the other contractual party, including any analysis, calculation, study, document or other material prepared by either party using Confidential Information. Confidential information also includes the fact with which third parties in particular the general contractor maintains business relationships.
However, no Confidential Information is:
a) any information or document which is or becomes publicly available at the time it is made available or thereafter (other than through the actions of the affected Party or its representatives) and
b) Information or documents that were demonstrably already in the possession of the other contracting party or one of their representatives at the time they were made accessible and which they did not gain knowledge of directly or indirectly through breach of any legal, contractual or professional obligation by the person transmitting them .
(2) The subcontractor is entitled and obliged to use the confidential information exclusively within the scope of its business relationship with the general contractor. The subcontractor is not entitled to use confidential information that has become known to him for his own purposes.
(3) Without the prior consent of the general contractor, the subcontractor is prohibited from making direct or indirect contact with customers of the general contractor - for whatever purpose. The subcontractor will also not solicit any employees of the general contractor during the term of this agreement.
(4) For each breach of the provisions of this confidentiality agreement, in the case of a breach of duration for each started month, the breaching contracting party undertakes to pay the other contracting party a contractual penalty of EUR 50.000,00, but no more than 10% of the contract price , which is bindingly agreed between the contracting parties at the time of the violation. We expressly reserve the right to claim further damages.
(5) The agreement on confidentiality ends two years after the end of each business relationship between the contracting parties.
§ 16 Final Provisions
(1) Verbal ancillary agreements have not been made. For reasons of proof, the written form is to be selected for changes and additions to this contract.
(2) German law applies.
(3) The place of jurisdiction for commercial transactions is Schermbeck.
(4) If individual provisions of this contract should be ineffective or if this contract contains gaps, the effectiveness of the remaining provisions shall not be affected. Instead of the ineffective provision, the contracting parties will agree on the effective provision that corresponds to the sense and purpose of the ineffective provision. In the event of gaps, the contracting parties will agree on the provision that corresponds to what would have been reasonably agreed according to the spirit and purpose of this contract if the matter had been considered from the outset.