Terms of Purchase

    (Date: 06/2022)

    I. Application

    (1) Conditional on contrary individual agreements, contracts with us (AMF-Bruns Forschungs- und Entwicklungs GmbH & Co. KG, Hauptstr. 101, 26689 Apen, Germany) may only be concluded on the basis of these General Terms and Conditions of Purchase (hereinafter “Conditions”). Contrary or differing general terms and conditions of the Supplier are only binding on us if expressly recognized by us. Our Conditions also apply if we accept deliveries unconditionally in knowledge of contrary or differing terms and conditions of the Supplier.

    (2) These Conditions apply to all procurements of goods and services. For entrepreneurs and legal persons under public law, our Conditions also apply to any future business relationships.

     

    II. Contract Conclusion and Performance

    (1) The Supplier must accept our order on the basis of these Conditions within 2 weeks. A contract with us will only be concluded upon receipt of an unconditional order confirmation.

    (2) The Supplier agrees to transfer title to agreed deliveries free from thirdparty rights.

    (3) Every delivery must include a delivery note with our order data (order number and date, buyer).

    (4) To be effective, changes, side agreements and additions must be agreed explicitly, i.e., in writing.

     

    III. Delivery Periods

    (1) The delivery period specified in the order is binding. The Supplier must inform us without undue delay about circumstances preventing the agreed delivery period from being met.

    (2) In case of default, we are entitled to the claims provided by law. After an appropriate grace period, we may especially obtain compensation for damages instead of performance. Even if a penalty is contractually agreed, we may claim the full demonstrable default damages.

     

    IV. Additional Requests When Purchasing Transport and Forwarding Services From the Supplier

    (1) Goods must be loaded ready for transport and operation and unloaded at the recipient’s location by the Supplier. The Supplier must ensure necessary and suitable loading equipment in compliance with legal and other requirements, such as VDI 2700 et seq., through, e.g., lashing straps, anti-slip mats, edge protectors, etc.

    (2) The Supplier is responsible for ensuring that the Supplier or the persons used by the Supplier for service performance have a valid driver’s license.

    (3) For the term of commissioning, the Supplier must maintain all necessary insurance, especially driver liability insurance and transport insurance. If requested, the Supplier must provide evidence of the above insurance coverage to us.

    (4) The Supplier is responsible for ensuring that the persons used by the Supplier for service performance have the basic qualifications and further training required by law for drivers of certain vehicles for road haulage and passenger transport. If requested, the Supplier must provide evidence of the above qualifications and further training to us. The Supplier is also responsible for compliance with required driving and rest periods and the proper technical condition of the trucks used.

    (5) The Supplier is responsible for ensuring compliance with the laws applicable to the transport, especially Section 3 et seq. of the German Goods Transport Act [Güterkraftverkehrsgesetz (GüKG)], by the Supplier and the Supplier’s vicarious agents, especially the carriers and staff used for the transport. The supplier and every carrier must have and may not unlawfully use a license under Section 3 of the German Goods Transport Act or a permit under Section 6 of the German Transport Act or a Community license.

    (6) If requested, the Supplier must submit to us for review all documents to be carried by law.

     

    V. Prices and Payment

    (1) The prices in the order are binding. These prices apply to deliveries that are "free of charge to the delivery address," including packaging, unless explicitly agreed otherwise, i.e., in writing. Packaging must only be returned if agreed. However, the Supplier must take back packaging if requested by us.

    (2) The prices in the order are valid and include travel costs and other expenses, unless agreed otherwise in writing. If agreed to be invoiced separately, travel costs must be billed exclusively in accordance with our travel cost policy. The Supplier may be required to obtain our travel cost policy. Travel costs and other expenses may only be billed up to the amount required by law.

    (3) The prices in the order are net prices, i.e., plus VAT, if required by law. Should VAT be required, the Supplier must state the VAT separately on the invoice. The Supplier must determine and is responsible for any tax effects and must hold us harmless of any claims resulting from tax law violations.

    (4) Invoices of the Supplier must include our order data (order number and date). Irrespective of the delivery address, invoices must be addressed to our head procurement office. We will pay within 30 days of receipt of a proper invoice. In case of payment within 14 days of receipt of a proper invoice, we may deduct 2% as a discount.

    (5) We are entitled to offsetting and retention rights to the extent permitted by law.

     

    VI. Software Acquisition

    (1) If the Supplier provides standard software to us (including via download), we will acquire simple and transferable rights of use that may be sub-licensed to affiliates within the meaning of Section 15 of the German Stock Corporation Act [Aktiengesetz (AktG)] without temporal, spatial or content limitation.

    (2) To any other software, including accessories that are part of the contracted service (individual software, software created as part of customization, documentation, concepts, etc.), we will acquire exclusive, transferable and sublicensable rights of use without temporal, spatial or content limitation. Unless agreed otherwise, such software must be provided to us as a source code with documentation.

    (3) The Supplier must hold us harmless of any third-party claims based on property rights infringements by the software provided by the Supplier, irrespective of whether standard or individual software is provided.

    (4) Unless explicitly agreed in writing whether software is licensed to several users for use by a named user or concurrent users, software is licensed to concurrent users.

    (5) Open-source software may only be used for contracted services with our prior written permission. If software provided by the Supplier includes open-source software without our permission, the Supplier must take all reasonable steps to replace the open-source software with equivalent proprietary software, if requested by us.

    (6) Unless agreed otherwise, defects or usage impairments of the software from the Supplier’s sphere of influence must be remedied by the Supplier without undue delay. The Supplier must report any defects or usage impairments and remedy measures and times to us regularly, at least quarterly.

    (7) License audits (reviews of compliance with regulations of rights of use to software provided to us by the Supplier) by the Supplier are only permitted if:

    • There are legitimate indications of us exceeding rights of use.
    • Legitimate indications are reported to us by the Supplier in writing at least 2 months before the audit.
    • The audit is performed exclusively by our employees with a third party subject to a professional duty of confidentiality commissioned by us from the legal or tax consulting profession without granting sole access to our systems.
    • The date and type of performance of the audit are coordinated with us in time, at the latest, 2 weeks in advance. The Supplier may not copy data during the audit, unless explicitly permitted by us.

    VII. Documents and Information

    (1) Property rights and copyrights to technical requirements, depictions, drawings, calculations, samples and other documents remain reserved to us; these may not be made available to third parties without our explicit written permission. Such documents and information may only be used for the production and delivery of our order. We reserve the right to require the conclusion of a non-disclosure agreement at any time. All documents must be returned to us by the Supplier without solicitation upon completion of the order or, at the latest, acceptance of the Supplier’s service.

    (2) The originals or copies of or, if requested by us, other electronic media or data carriers with the documents (drawings, plans, etc.) prepared by the Supplier for the performance of the order must be fully provided to us. After the limitation period for defect claims expires, the Supplier may destroy the documents prepared for the fulfillment of the contractual obligations. However, the Supplier must first offer these documents to us and inform us of their intended destruction. Documents may only be destroyed if we default on acceptance.

     

    VIII. Offsetting and Retention Rights

    Offsetting and retention of documents or services prepared for the fulfillment of contractual obligations are only permitted to and the defense of non-performance may only be raised by the Supplier through counterclaims that are legally established, acknowledged or uncontested. Offsetting rights of the Supplier are unlimited where offset claims are linked to the primary claim synallagmatically.

     

    IX. Warranty

    (1) We are fully entitled to the defect claims provided by law. In any case, we may obtain defect remedies or deliveries of defect-free goods (replacements) from the Supplier as a cure; any expenses of the remedy or replacement must then be borne by the Supplier. The right to compensation, especially to compensation instead of performance, remains explicitly reserved to us.

    (2) If we are subject to other legal reporting obligations, our reports will be on time if sent within 10 business days.

    (3) Our claims, especially our defect claims, against the Supplier are subject to the limitation periods provided by law. Limitation will be suspended if the legal requirements are met and, especially, if the Supplier reviews the presence or remedy of a defect with our permission, until the Supplier reports the results of the review to us or declares to have remedied or refuses to continue to remedy the defect. If defective parts are remedied or replaced by the Supplier, the warranty period for these parts will restart.

     

    X. Liability

    (1) The Supplier is liable without limitation as required by law. The Supplier is especially liable for ensuring that the procurement and use of items offered by the Supplier do not infringe national and foreign patents and other property rights. The Supplier must especially ensure adequate insurance coverage.

    (2) If requested by us, the Supplier must hold us harmless of any third-party claims where the Supplier must compensate us for damages.

     

    XI. Cancelation Rights

    (1) If the services of the Supplier are intended for an order placed by one of our customers (“customer order”) or are otherwise related directly to a customer order, this will be noted with the order in a form compliant with the confidentiality requirements of the customer order.

    (2) If the customer order is canceled for reasons for which we are not responsible, we may cancel the order without notice by immediately informing the Supplier.

    (3) In case of cancelation, the Supplier may bill any services demonstrably performed before receiving notice of the cancelation. No further payment or refund claims of the Supplier will be established.

     

    XII. Data Protection

    (1) If the Supplier receives access to personal data or processes confidential information of ours that includes personal data, the Supplier must ensure compliance with data protection law, especially the principles of Article 5 of the GDPR. The Supplier assures that the Supplier’s employees may only access personal data where necessary under the need-to-know principle and after being informed about applicable data protection laws and committing to confidential treatment of personal data. The Supplier must implement technical and organizational measures to ensure a level of data protection adequate to the risk of the processing.

    (2) When processing personal data on our behalf as a processor within the meaning of Article 4(8) of the GDPR, the Supplier may only process this personal data according to our documented instructions and only after concluding a separate processing agreement within the meaning of Article 28 of the GDPR. Unless explicitly agreed otherwise in the processing agreement, the Supplier may only process this data within the territory of the European Union.

    (3) If the Supplier must process our personal data outside of the territory of the European Union or European Economic Area, we will conclude the valid module of the EU standard contractual clauses for the transmission of personal data to third countries.

     

    XIII. Property Rights and Know-How

    (1) The Supplier grants us the right free of charge to use in the project the property rights and know-how used by the Supplier for the performance of the contract. Any documents, drawings, programs and other work results prepared by the Supplier for us will become our sole property and possession without additional payment. We may produce or have third parties produce parts using the documentation provided by the Supplier and may transfer this right to third parties.

    (2) Upon their creation, the Supplier transfers to us the exclusive usage and exploitation authorization for all work results and protectable work produced in relation to the performance of the contract.

    (3) The Supplier must inform us immediately of any property rights and protectable rights existing before the contract becomes effective (hereinafter: “existing property rights”) where necessary for use of the work results and protectable work created in relation to the performance of the contract. Such existing property rights may only be used for contract performance with our prior permission. The Supplier transfers simple, transferable and sublicensable rights of use to these existing property rights to us without content, temporal or spatial limitation. The same applies to existing know-how.

    (4) The Supplier assures to be unaware of any circumstances, especially any third-party property rights, that may impair or prohibit the production of the items and processes necessary for contract performance, and that no claims have been or may be asserted against the Supplier for industrial property rights infringements.

    (5) The Supplier must hold us harmless of any third-party claims based on property rights infringements by goods or services of the Supplier.

    (6) The Supplier must inform us without undue delay of any property rights that may prevent the use of the Supplier’s work results.

    (7) Furthermore, the Supplier must report any invention made by the Supplier or the Supplier’s subcontractors/suppliers in relation to the performance of the order, submit any documents necessary for exploitation of the invention and provide any requested information about the invention to us. These reporting obligations of the Supplier also apply to the Supplier’s know-how created in relation to the performance of the contract. The Supplier must ensure that the rights to the invention are exercised against employees and/or independent persons and transferred to us. We may register and obtain the rights to the invention domestically and abroad and will bear the necessary costs. Each party must pay the employee remuneration for the invention required by law. Agreements requiring binding recognition of the above provisions must be concluded in time with all of the Supplier’s employees, subcontractors/suppliers and other vicarious agents used for the performance of the contract. The Supplier agrees not to file actions for nullity or raise objections or to support third parties in doing so to contest the property rights created through the above-stated work and registered by us.

    (8) The transfer of rights to inventions, rights of use and exploitation rights to us in accordance with this Section XIII is fully settled through the agreed payment.

    (9) The Supplier and we agree to, unless agreed otherwise, give both parties unrestricted access to the results of joint or commissioned research and development, including resulting intellectual property rights and know-how, upon their creation for further research, development and exploitation. If requested, we will conclude a separate agreement on such rights of use and the compensation of the Supplier with the Supplier.

     

    XIV. Customer Protection

    (1) If we use the Supplier as a subcontractor to serve one of our customers, the Supplier may, while acting as a subcontractor and for 1 year thereafter, not engage in business with this customer involving the same or equivalent goods or services as those provided by (i) us and (ii) the Supplier on behalf of the customer. This applies irrespective of whether this business activity is conducted directly or indirectly or as a principal, representative, executive body, employee, employer, investor, advisor, controlling shareholder, partner of a joint venture or in another capacity or in the Supplier’s or another’s name.

    (2) Subsection 1 does not apply if the opportunity to contact and conduct business with the customer did not arise for the Supplier by acting as our subcontractor. While acting as our subcontractor and for 1 year thereafter, it will be assumed that the Supplier received the opportunity to contact the customer by acting as our subcontractor.

    (3) Subsection 1 does not apply to business activity with customers who were demonstrably customers of the Supplier at least 1 year before the start of contract negotiations between the Supplier and us.

    (4) If we use the Supplier as a subcontractor to serve one of our customers, the Supplier must keep the identity of the customer confidential towards third parties and, without our prior written permission, may not directly or indirectly publish or use information obtained by acting as our subcontractor.

    (5) In case of culpable violations of Subsections 1 and 4 of this Section XIV, the Supplier must immediately pay us a penalty of EUR 30,000.00 for every violation and waive the defense of repeat offenses. Claims of further damages by us are not excluded thereby. Every penalty paid will be deducted from our damage claims.

    (6) If we present concrete indications of violations of the above obligations, the Supplier must inform us in writing about how and to what extent the Supplier established a business relationship during the application of the customer protection clause of this Section XIV or published information of the kind described in Subsection 4.

     

    XV. Place of Performance, Transfer of Risk, Acceptance, Title, Prohibition on Assignment and Marketing

    (1) Unless agreed otherwise, the place of performance for all goods and services is Apen, Germany.

    (2) The risk of accidental destruction or accidental deterioration of goods or services will only be transferred upon the handover or acceptance at our specified destination; in case of partial deliveries or services, only after the goods or services have been fully provided.

    (3) If goods or services require acceptance, confirmation of acceptance must be documented in written or text form. A significant defect enabling us to refuse acceptance is present if not all documentation and instruction manuals required for use of the goods or service are included.

    (4) Goods and services must be provided to us irrespective of payment. If we accept an offer of the Supplier requiring payment, the Supplier’s retention of title will expire, at the latest, when we pay for the goods or services. We may resell the goods or services through the ordinary course of business and assign any resulting claims in advance before paying for the goods or services (alternatively, application of the simple retention of title extends to resale). Any other forms of retention of title, especially expanded retention of title, transferred retention of title and retention of title extended for processing, are thereby excluded.

    (5) Assignments of claims to which the Supplier is entitled under the business relationship with us are excluded.

    (6) Without our explicit written permission, the business relationship with us may not be used for marketing purposes by the Supplier.

     

    XVI. Place of Jurisdiction and Choice of Law

    (1) The exclusive place of jurisdiction for any claims against merchants or legal persons under public law from the business relationship with us is Hamburg, Germany. However, we may also sue the Supplier at the Supplier’s general place of jurisdiction.

    (2) For cross-border deliveries, the exclusive place of jurisdiction for any disputes under the contractual relationship is Hamburg, Germany (Article 25 of Regulation (EU) No 1215/2012). However, we reserve the right to sue the Supplier at the Supplier’s general place of jurisdiction or seize any other competent court under Regulation (EU) No 1215/2012.

    (3) All business and legal relationships between the Supplier and us are governed exclusively by the law of the Federal Republic of Germany; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

     

    XVII. Final Provisions

    (1) Should individual of the above provisions be or become ineffective, this will not affect the effectiveness of the remaining provisions.

    (2) All of our previous general terms and conditions of purchase are replaced by these Conditions.