Terms & Conditions of Purchasing
Section 1 General Provisions
1.1 These Terms and Conditions of Purchasing (in the following referred to as “Terms and Conditions of Purchasing”) apply to all current and future business relationships between Aircraft Cabin Modification GmbH (in the following referred to as “ACM”) and the supplier of goods (in the following referred to as “Supplier”) for orders and purchases by ACM. They do not apply to natural persons who enter into a legal transaction for a purpose that cannot be attributed to their commercial or independent professional activities.
1.2 By accepting and executing a job and/or an order, the Supplier accepts these Terms and Conditions of Purchasing in the version as amended at the time the order was placed. The Terms and Conditions of Purchasing can be accessed at any time on ACM’s website at www.acm-aerospace.com. In the event that the Supplier has conflicting and/or deviating Terms and Conditions, they shall not be recognised and shall not become part of the contract unless their validity is agreed to in writing by ACM at the time the contract is concluded; the Terms and Conditions of Purchasing shall be subordinate and supplementary in this case, as well as where special conditions for specific orders are agreed separately. The Terms and Conditions of Purchasing shall also apply if the contract is executed by the Supplier unconditionally in the knowledge that their terms and conditions conflict with or deviate from the Terms and Conditions of Purchasing. Any terms and conditions of our suppliers or third parties shall not apply, even if we do not object specifically to their validity in individual cases or if we accept the Supplier’s delivery or service. Moreover, silence in response to an order confirmation by the Supplier containing contradictory declarations by the Supplier cannot be interpreted as consent.
1.3 The T&C Purchasing shall apply to all future transactions and contracts with the Supplier, even if ACM no longer expressly points this out to the Supplier in the future.
1.4 All correspondence pertaining to the contract must be conducted with the ACM Purchasing Department stating the order or job number.
§2 Conclusion of the Contract
2.1 Conclusion of the contract and all agreements made between ACM and the Supplier for the purpose of executing this contract must be in writing. The Supplier must check quotations in a professional manner and shall expressly notify ACM in the event that the quotation deviates from the enquiry documents in any way.
2.2 ACM shall be bound to its quotation for 14 days from the date of its issue, provided the quotation is made by ACM and does not expressly stipulate a different binding period. The receipt of the declaration of acceptance by ACM shall be authoritative for timely acceptance of the quotation.
§3 Contractual Task, Performance and Scope of Performance
3.1 The performance details are set out in each individual order.
3.2 Documents, reports, ideas, drafts, models, samples and all other results that arise during performance shall be deemed part of the contractual service. ACM shall have ownership of these results.
3.3 The Supplier shall perform its services according to the detailed specifications communicated by ACM in each individual case. The specifications may refer to the end product, but may also define separate requirements for the production process and/or the materials used in the product.
3.4 Furthermore, the Supplier shall perform its services with the utmost care, taking into account the current state of science and technology, health and safety regulations imposed by the authorities and trade associations, as well as its current knowledge and experience or knowledge and experience that is acquired during the contractual work. The Supplier warrants adherence to the statutory requirements, the agreed technical specifications and all other instructions.
3.5 Partial performances are not permitted unless otherwise expressly agreed in advance. Remaining services must be carried out in the event that a partial performance is agreed. Where a partial performance is executed without an agreement to this effect, ACM shall be entitled to return the partial performance at the expense and risk of the Supplier or to place it in storage in a forwarding warehouse at the expense of the Supplier. Partial performances must in all cases be declared as such in the shipping documents.
3.6 Third parties shall only be authorised to perform the commissioned deliveries and performances with the prior written consent of ACM.
3.7 The Supplier shall use drawings, data and other documentation in accordance with the relevant requirements, the relevant statutory regulations and guidelines and the relevant regulations and guidelines of ACM. The Supplier shall seek information from ACM about these requirements, regulations and guidelines before submitting its quotation and thereafter on an ongoing basis prior to commencing or executing the service. ACM will define the IT systems and programs that must be used for documentation. The Supplier is required to obtain information in this regard prior to commencing or executing the service.
3.8 The Supplier is obliged without delay to notify ACM in writing of any concerns it may have in regard to the way in which the service/delivery is to be performed as requested by ACM and to propose to ACM any changes it deems necessary in order to comply with the agreed specifications or legal requirements. Where ACM gives its written consent, the Supplier shall be obliged to implement these proposed changes. Section 5.4 sentence 2 shall apply accordingly.
3.9 The Supplier is obliged to provide spare parts for the period of ordinary technical use, but at least 10 years after the last delivery; such spare parts shall be provided at reasonable terms. Where the contractual task includes digital elements, the Supplier shall be obliged, at no additional cost to ACM, to provide updates that are necessary to maintain the conformity of the goods with the provisions of the contract for a period that ACM can expect based on the nature and purpose of the goods and their digital elements and taking into account the circumstances and the nature of the contract, but at least for 10 years after the last delivery. This shall apply unless the parties have reached other agreements concerning the contractual task. The Supplier is obliged to notify ACM of these updates for the duration of this period.
3.10 Should the Supplier intend to discontinue the delivery of spare parts for the contractual task during or after the end of the periods set out in Section 3.9, it must notify ACM of this in writing and must provide an opportunity for a final order prior to discontinuation.
Section 4 Prices, Terms of Payment
4.1 The prices indicated in the order are net fixed prices plus any legally owed value added tax. Included in the price are any ancillary costs incurred in connection with the deliveries and performances owed by the Supplier, in particular the costs for free domicile shipping, insurance, customs duties, packaging and material testing procedures, except where otherwise agreed.
4.2 Payment of the agreed remuneration to the Supplier shall settle all contractually agreed deliveries and/or services by the Supplier, including all rights to be transferred or granted.
4.3 Claims based on additional deliveries and/or services can only be exercised after prior written agreement and commissioning of the additional deliveries and/or services between the contracting parties. Subsequent claims exceeding the total fixed price are otherwise excluded.
4.4 Remuneration is not owed for demonstrations, presentations, negotiations and/or for the preparation of quotations and projects as well as any travel expenses in connection with such activities unless previously agreed in writing.
4.5 The Supplier’s invoices must comply with the legal requirements, in particular the requirements of the VAT Act (UStG), and must contain the order number shown in the ACM order as well as the information and/or documents agreed with the order; the Supplier shall be responsible for all consequences arising from failure to comply with this obligation. Invoices with incorrect or missing information will not be accepted under any circumstances and shall not oblige ACM to make payments.
4.6 Unless otherwise agreed, we shall settle the purchase price within 14 days of delivery of the goods and receipt of the invoice with a 3% early payment discount or within 30 days net. The handover date on which ownership of the delivered goods was transferred, the date of receipt of an invoice complying with the requirements of Section 4.5 or the date of handover of all documents required under the contract, shall be decisive for the calculating the commencement of the payment period, whichever is latest. Payments are made by wire transfer to the Supplier’s business account. The Supplier must provide suitable bank details for this purpose. This applies also to changes in the bank details. Where partial performances have been agreed, payment only falls due after the final delivery. This does not apply to successive delivery contracts, which are governed by the provisions of sentence 1. The receipt of our transfer order by our bank shall be sufficient to ensure punctuality of the payments we owe.4.7 Where the Supplier is required to submit material samples, test protocols, quality documents or other contractually agreed documents, the completeness deliveries and performances under Section 4.6 shall also be predicated upon receipt of these documents by ACM.
4.8 A payment by ACM cannot be interpreted as a recognition that the delivery or performance was compliant with the contract.
4.9 Should ACM be in default with a payment, a claim for damages to which the Supplier is entitled shall be limited to 0.2% of the value of the delivery and/or performance per full week and up to a maximum of 10% of this value, provided the default is not due to a wilful or grossly negligent breach of duty by a legal representative or vicarious agent of ACM. However, the Supplier shall be entitled to payment of at least a lump sum of €40.00 pursuant to Section 288 German Civil Code (BGB). This shall also apply if the claim to remuneration is a down payment or another kind of instalment. This lump sum shall be deducted from any damages owed insofar as the damage is based on the costs of legal action.
4.10 The supplier is not entitled to assign claims or have them collected by third parties (e.g. leasing companies, banks) or to transfer its rights and obligations individually or in their entirety to a third party without ACM’s prior written consent.
4.11 ACM shall be entitled to rights of offsetting and retention in the extent permitted by law. The Supplier’s rights of offsetting and retention shall only apply insofar as they are uncontested or have been legally established. ACM is entitled to deduct the value of returned goods and any expenses and claims for damages from the invoice amounts.
Section 5 Delivery, Delivery and Performance Dates, Transfer of Risk
5.1 Deliveries and performances shall be made at ACM’s business address unless otherwise agreed in writing in the contract (debt to be discharged at creditor’s domicile).
5.2 The Supplier shall insure deliveries against transport damage, incorrect loading or unloading and theft at its own expense.
5.3 Goods must be packed in such a way that damage is prevented during transport and loading procedures. Packaging materials must only be used in the quantities necessary to achieve their intended purpose. The Supplier’s take-back obligations, also with regard to transport and product packaging, shall be governed by the statutory provisions. The Supplier assures that all packaging is licensed and registered with an appropriate system provider in accordance with the law and that full and proper payment of the associated charges has been made.
5.4 The Supplier is obliged to state the ACM order number on all shipping documents and delivery notes; ACM shall not be liable for any delays in processing if the Supplier fails to do so.
5.5 The delivery and/or performance date stated in the order – which the Supplier must check carefully in advance – is binding. The date of delivery shall be deemed to be the date of goods receipt by ACM at its registered address (in house) or, if another destination has been agreed, the date of goods receipt at that destination. Where the delivery is made prior to the agreed delivery date, ACM reserves the right to refuse the delivery and to return it at the Supplier’s expense and risk.
5.6 The Supplier is obliged to notify ACM in writing without delay if circumstances arise or become apparent which indicate that the agreed delivery and/or performance time cannot be fulfilled. The Supplier can otherwise no longer refer to such circumstances at a later date. This shall apply even if the Supplier assumes that ACM is aware of the circumstances.
5.7 Where the Supplier is in default of delivery, ACM shall be entitled, for each day of delay or part thereof, to demand a contractual penalty of 0.2% of the delivery value of the late goods as stated in the final invoice, but no more than 5% of the corresponding delivery value as stated in final invoice, unless the Supplier is not responsible for the default of delivery. The same shall apply if the supplier is in default with any other performance. The right to exercise further statutory claims is reserved, whereby the contractual penalty shall be deducted from a claim for damages. A contractual penalty may be imposed notwithstanding performance. The Supplier is entitled to provide evidence that the damage was lower. The acceptance of a delayed delivery or performance does not imply a waiver of claims for compensation.
5.8 Risk is not transferred to us until the goods have been handed over in house at the agreed place of delivery. This is ordinarily our registered address, unless an alternative delivery destination is agreed in the contract.
Section 6 Acceptance
6.1 The exercise of all rights, in particular from defective or delayed delivery, is always unaffected by acceptance of the delivered goods.
6.2 Should ACM be culpably in default with acceptance, a claim for damages to which the Supplier is entitled shall be limited to 0.2% of the value of the delivery and/or performance per full week and up to a maximum of 10% of this value, provided the default is not due to a wilful or grossly negligent breach of duty by a legal representative or vicarious agent of ACM. ACM shall have the option of providing evidence that damage was lower, whereby the Supplier shall bear the secondary burden of proof.
Section 7 Changes
7.1 ACM is entitled to change the time and place of delivery as well as the type of packaging at any time by giving at least 7 calendar days’ written notice prior to the agreed delivery date.
7.2 Where performance consists of a work service or work delivery, the same shall apply – at reasonable discretion and taking into account the interests of the Supplier – to changes in the designs and/or specifications at least until acceptance. This applies in particular to changes in performance that are required for technical reasons, are due to official or amended legal requirements or are necessary for compliance with the deadlines or the cost framework.
7.3 Der Lieferant ist verpflichtet, Bedenken, die er gegen die von ACM gewünschte Art und Weise der Ausführung der Leistung/Lieferung hat, ACM unverzüglich schriftlich mitzuteilen und ACM Änderungen vorzuschlagen, die er für erforderlich hält, um die vereinbarten Spezifikationen oder gesetzliche Anforderungen zu erfüllen. Der Lieferant ist verpflichtet, die Änderungsvorschläge vorab auf die technische Umsetzbarkeit sowie auf die Qualitäts-, Termin-, und Kostenauswirkungen zu untersuchen und ACM hierüber zusammen mit dem Änderungsvorschlag schriftlich zu unterrichten. Im Falle einer schriftlichen Zustimmung von ACM zu den vorgeschlagenen Änderungen ist der Lieferant verpflichtet, diese umzusetzen.
7.4 The Supplier is obliged furthermore to review ACM’s change requests without delay in regard to their technical feasibility as well as the effects on quality, deadlines and costs and to notify ACM of the findings in writing. 7.3 The Supplier is obliged to conduct a prior review of its own change proposals in regard to their technical feasibility as well as the effects on quality, deadlines and costs and to send the change proposal and findings to ACM in writing.
7.5 Where a change causes an increase or decrease in costs and/or a deadline overrun, the Supplier shall be obliged to submit to ACM a corresponding supplementary quotation at the same time as its written notification of the technical feasibility and the effects on quality, deadlines and costs in accordance with Section 7.4. The change shall be carried out on the basis of a written agreement detailing the remuneration of additional costs or consideration of reduced costs as well as the schedule.
7.6 The Supplier is obliged to notify ACM in writing at an early stage if it intends to implement product or process changes affecting products purchased by us. The same shall apply if the Supplier changes a vendor or, for the first time, externally purchases products it had previously manufactured itself or if the Supplier or its vendor relocates manufacture of the products or preliminary products to another production site and the Supplier becomes aware of this.
Section 8 Place of Performance
The place of performance for deliveries is the place of transfer of risk. The place of performance for payments is 87700 Memmingen (Germany).
Section 9 Release from the Obligation to Perform, Withdrawal from the Contract
9.1 Force majeure shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. The contracting parties are obliged to make reasonable efforts to provide the necessary information without delay and to adjust their obligations to the changed circumstances in good faith.
9.3 ACM is entitled to either to withdraw from the contract or serve immediate notice of termination if the Supplier files for the opening of insolvency proceedings, if insolvency proceedings are opened or if the opening of insolvency proceedings is rejected due to a lack of assets.
9.4 ACM shall also have the right to terminate or withdraw from the contract if the Supplier fails to fulfil its obligation in full despite claims or demands by ACM that have been legally established or are uncontested and ACM must initiate enforcement measures to assert its claims or demands.
9.5 ACM may also withdraw from the contract if the Supplier promises, offers or extends benefits of any kind to an ACM employee or agent involved in the preparation, conclusion or performance of the contract or to a third party acting in the interests of such employees or agents.
9.6 The statutory provisions on withdrawal shall remain unaffected in all other respects.
Section 10 Warranty Claims, Guarantees
10.1 ACM’s warranty claims against the Supplier for material defects and defects of title shall be determined in accordance with the statutory provisions. The warranty period is 24 months from the transfer of risk. Where the contractual task includes digital elements, any warranty claims due to a defect in the digital elements shall not become statute-barred earlier than twelve months after the end of the provisioning period.
10.2 Supplier recourse: ACM reserves the right to seek recourse from the Supplier if it is obliged to take back goods it has manufactured and/or sold due to defects in performance of the contractual task as delivered by the Supplier, if the purchase price paid to ACM is reduced as a result or if claims are exercised against ACM in any other way because of this and if the defect was already present at the time that risk was transferred to ACM, whereby it shall not be required to set a deadline otherwise necessary to assert its rights in regard to defects. It shall be irrelevant whether the defect was already present at the time the risk was transferred to ACM if the defect is due to a breach by the Supplier of the updating obligation pursuant to Section 3.7 sentence 2.
ACM may demand reimbursement from the Supplier of the expenses incurred by ACM if its customer exercises a claim against ACM for reimbursement of the necessary expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs.
Notwithstanding the provision in Section 10.1 (limitation of claims for defects), the limitation period in cases of Supplier recourse shall commence at the earliest three months after the time at which ACM has satisfied the claims made against it by its customer, but no later than five years after delivery by the Supplier. Excluded from this maximum limitation period are cases of Supplier recourse in which the warranty rights exercised by a customer were based on a breach of the Supplier’s updating obligation pursuant to Section 3.7 sentence 2. The limitation period these cases shall commence at the earliest three months after the time at which ACM has satisfied the claims made against it by its customer, but no later than 15 months after the end of the provisioning period of the digital elements.
10.2 The Supplier guarantees that the goods and deliveries comply with the applicable statutory provisions, in particular the requirements of the applicable packaging ordinance.
10.3 ACM will conduct an identity and quantity check on receipt of the goods and check the delivery for obvious transport damage. Deviations in quality and quantity as well as transport damage are reported in good time in every event if we notify the Supplier within 5 working days after our receipt of the goods. We will otherwise report defects as soon as they are identified in the ordinary course of business. Such hidden material defects are be reported in good time in every event if the Supplier is notified within 5 working days after their discovery. The Supplier waives the objection of delayed notification of defects in this regard.
10.4 We do not waive our right to warranty claims by inspecting or approving samples submitted to us.
10.5 Upon receipt of our written notice of defects by the Supplier, the limitation period for warranty claims shall be suspended until the Supplier rejects our claims or declares the defect eliminated or otherwise refuses to continue negotiations on our claims. The warranty period for replaced and rectified parts shall start again in the event of replacement delivery and rectification of defects. This does not apply if the conduct of the Supplier gives us reasonable grounds to assume that it did not consider itself obliged to take the measure and only completed the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.
Section 11 Supplier’s Declarations and Information
The Supplier is obliged, upon instruction by ACM, to provide information concerning the composition of the delivered item if this is necessary for fulfilment of official conditions imposed by authorities in Germany or abroad. The Supplier is obliged furthermore to submit to ACM Supplier declarations requested for the goods by ACM, as well as proofs of origin, customs certificates and certificates of conformity, and shall do so at our registered address. The Supplier is obliged to provide complete and truthful information in these documents. Moreover, the Supplier shall notify ACM without separate instruction if it is aware of import and/or export restrictions imposed by third countries on the delivered goods and/or work performance.
Section 12 Compliance with the Code of Conduct
12.1 The supplier recognises the ACM Code of Conduct for Suppliers as binding and undertakes to comply with it. The current version of the Code of Conduct is available online at https://acm-aerospace.com/verhaltenskodex.
12.2 Should the Supplier breach the Code of Conduct, ACM may, in accordance with the following regulations,
set the contractual partner a reasonable deadline pursuant to Section 13.3 and demand remedial action within this period;
demand compensation for the damage caused by the breach of duty pursuant to Section 13.4;
demand indemnification from all consequences of the breach of this Code of Conduct pursuant to Section 13.5;
terminate a supply contract concluded with the Supplier (in the following referred to as the “supply contract”) on the basis of Section 13.6.
12.3 Demand for remedial action: Should the Supplier have breached an obligation arising from the Code of Conduct or should such a breach of obligation be imminent, ACM may demand that the Supplier take remedial action. For this purpose, ACM will set a reasonable deadline for the Supplier and instruct it to end the breach of duty, minimise the extent of the breach or take effective measures to prevent an imminent breach of duty.
In the event that a direct vendor of the Supplier, who is also an indirect vendor of ACM, has breached or is about to breach a relevant obligation, the Supplier shall be obliged to demand remedial action from its vendor in order to end the breach and minimise the extent of the breach or prevent the impending breach.
12.4 Compensation: If the Supplier breaches an obligation arising from the Code of Conduct, ACM may demand compensation for the damage incurred as a result. This does not apply if that party is not responsible for the breach of duty (Section 280 (1) sentence 2 German Civil Code (BGB)).
12.5 Indemnification: Should the Supplier breach an obligation arising from the Code of Conduct, ACM may demand that the Supplier indemnify ACM against all consequences, in particular third-party claims, fines, penalties, damages, necessary costs and expenses based on an alleged or actual breach of the Code of Conduct by the Supplier. This is without prejudice to ACM’s right to claim damages for a breach of the Code of Conduct.
- a. This requires that ACM informs the Supplier of the consequences of the alleged or actual breach of duty in due time.
- b. The Supplier who is obliged to indemnify is granted the right to monitor ACM’s defence against any third-party claims, fines and penalties etc.
12.6 Right of termination: ACM is entitled to terminate the ongoing business relationship with the Supplier due to a breach of the Code of Conduct with  months’ notice to the end of a month. In particularly serious cases, ACM is entitled to extraordinarily terminate the supply agreement(s) with the Supplier with immediate effect. A particularly serious case exists in particular in the event of severe violations of fundamental human rights (e.g. in the case of particularly serious forms of child labour, forced labour, exploitation or comparable cases of involuntary labour), fundamental principles of environmental protection (e.g. contamination of air, water, soil, should these effects be capable of significantly impairing the health of people, the natural basis for the preservation and production of food or the quality of drinking water), etc.
12.7 Discretion: ACM may choose between the above rights at its own discretion and may combine them where appropriate (e.g. request for remedial action and request for damages; termination of the contract and request for damages). In choosing which of the above rights ACM will exercise, ACM will in particular consider the following: Type and severity of the breach, conduct of the Supplier in connection with the breach (e.g. active information of ACM, active clarification and efforts to mitigate damages and avoid future breaches), the risk of repetition, potential or actual impact of the breach on ACM and its contractual relationships with its own customers and contract awarders etc.
12.8. The Supplier undertakes to inform ACM in writing without delay and without being asked
- a. of any violations of the Code of Conduct on the part of the Supplier itself or direct vendors of the Supplier who are also indirect vendors of ACM;
- b. the effects of the breach of duty;
- c. any measures to minimise the effects that it has taken or still intends to take; as well as
- d. any preventive measures that it has already taken or still intends to take in order to prevent future breaches of duty.
12.9 The Supplier will also provide ACM with written information about violations of the Code of Conduct at any time upon request, as well as about the measures taken to eliminate or prevent a breach of duty or to minimise the effects.
12.10 ACM will review the provisions of the Code of Conduct on a regular basis and update them as necessary, in particular in the event of changes to laws, regulations, conventions, guidelines of international organisations on social, ethical or ecological business practices on which this Code of Conduct is based, or in the event of new requirements of its own contractual partners. ACM will send the revised version to the Supplier. The Supplier will be deemed to have agreed to the revised Code of Conduct if it does not object to the revised Code of Conduct in writing within 14 days of receipt of the letter with which the revised Code of Conduct is sent. The letter shall be deemed to have been received by the Supplier three days after the date shown in the letter. In this case, the new version of the Code of Conduct shall apply upon expiry of the period for objection. Should the Supplier object to the revised Code of Conduct, the previous version of the Code of Conduct shall remain in force.
Section 13 Liability
13.1 The Supplier shall be liable within the scope of the statutory provisions unless otherwise stipulated in these Terms and Conditions of Purchasing.
13.2 The Supplier shall be responsible for all claims exercised by third parties for personal injury or property damage attributable to a defective product that it has supplied and shall be obliged to indemnify us against any liability in this regard. Should we be obliged to recall products from third parties due to a defect in a product provided by the Supplier, the Supplier shall bear all costs associated with the recall action. The indemnification obligation shall also apply to all expenses as are incurred necessarily by ACM as a result of or in connection with a claim by a third party, including the costs of legal representation. The Supplier shall take out adequate insurance against these risks in a scope that is customary in the trade.
13.3 ACM shall be liable according to the statutory provisions for damages due to injury to life, limb or health, in the event of intent or gross negligence on the part of ACM, a legal representative or vicarious agent, as well as for damages covered by guarantee or warranty assurances extended by ACM. In the event of ordinary negligence, ACM shall only be liable to provide compensation for foreseeable damages that are typical of the contract and only insofar as ACM, a legal representative or vicarious agent has breached an obligation whose proper fulfilment is a basic condition for performance of this contract and upon whose observance the contractual partner may ordinarily rely (cardinal obligation). Liability shall otherwise be excluded to the extent permitted by law.
Section 14 Ownership, Marking, Documentation, Information and other Obligations
14.1 Ownership of the items and results to be delivered in accordance with Sections 3.1 and 3.2 shall be transferred to ACM after payment. Any extended or expanded reservation of title by the Supplier is excluded.
14.2 Models and tools which we make available to the Supplier or which are manufactured for contractual purposes and charged to us separately by the Supplier shall remain our property or are transferred to our ownership. The Supplier shall mark such items permanently, legibly and in a clearly visible place as our property without delay after transfer of ownership (“Property of Aircraft Cabin Modification GmbH”). This marking must be made in such a way that the means of production can be identified as our property throughout their entire period of storage and use (e.g. by means of a firmly riveted aluminium plate, engraving). The Supplier shall ensure the safekeeping of the models and tools, insure them to a reasonable extent against damage of any kind and use them only for the purposes of the contract. The Supplier shall carry out any necessary maintenance on and inspections of our tools as well as all servicing and repairs at its own expense and in good time. The Supplier must notify us without delay of any cases of malfunction. Any claims for damages shall remain unaffected if the Supplier culpably fails to do so. Models and tools must be returned to us either at our instruction or otherwise without separate instruction after fulfilment of the order.
14.3 Any substances, materials or other items supplied and/or made available by ACM (“provided items”) shall remain the property of ACM. The Supplier is obliged without delay to indicate our ownership of the provided items by suitable means and in a manner that is clearly recognisable to third parties. Where it is not possible to mark the items provided or the packaging itself, the Supplier shall be obliged to store the items provided separately from third-party items and at least to mark the relevant storage area in such a way that our ownership of the items provided is clearly legible and easily recognisable to third parties. The Supplier is obliged to provide us with evidence of the marking of our property upon instruction to do so.
14.4 Any processing or reworking of the provided items by the Supplier shall be performed on behalf of ACM, i.e. the processing or reworking shall always be performed subject to the anticipated agreement on transfer of ownership to ACM.
Where the items provided by ACM are processed with other items that do not belong to ACM, ACM shall acquire co-ownership of the new item in the ratio of the value of its items (purchase price plus VAT) to the other processed items at the time of their processing. 14.5 Where the items provided by ACM are combined with other items, substances or materials that do not belong to ACM in such a way that they become essential components of a uniform thing (Section 947 German Civil Code (BGB)) or are inseparably mixed, ACM shall acquire co-ownership of the new item in the ratio of the value of the item under reservation of title (purchase price plus VAT) to the other mixed items at the time of their mixing.
If the combination or mixing with the Supplier’s items is performed in such a way that the Supplier’s goods must be viewed as the principal item, we and the Supplier agree with immediate effect that the Supplier shall transfer ownership to ACM on a pro rata basis; the Supplier shall, acting as a bailor and without charge, hold the sole or co-ownership in safekeeping on behalf of ACM until the items are handed over to ACM.
14.7 The Supplier undertakes to treat the provided and new items with care and shall insure them against fire, water and theft as if they were its own items. Claims against the insurance company concerning the items provided by ACM as well as the new items which are the sole property of ACM are hereby assigned to us. ACM hereby accepts this assignment.
14.8 The Supplier must surrender the items provided by ACM without delay when instructed to do so. Where the Supplier has acquired co-ownership of the new items through mixing or blending, they shall be handed over pari passu against payment of the acquired share.
14.9 ACM is entitled, to minimise the economic impact of the risk of loss of ownership, to demand securities (e.g. bank guarantee) from the Supplier to secure its ownership of the models, the tools and the items it has provided.
14.10 If the value of the securities to which ACM is entitled pursuant to paragraph 9 exceeds the value of the tools, models and provided items owned by ACM by more than 10%, ACM shall be obliged to release securities at the Supplier’s request, whereby it shall be at the discretion of ACM to determine which securities it releases.14.11 The Supplier shall notify ACM immediately in writing if other persons exercise claims with regard to the models, tools or the provided items or if a measure by a public authority such as the enforcement of execution that would affect these items is imminent. The Supplier shall initiate all measures as are necessary to defend against such interference by other persons in ACM’s ownership rights to the models, tools or provided items.
Section 15 Property Rights and Secrecy
15.1 Documents, reports, ideas, drafts, models, calculations, samples and the like (jointly: “documents”) that are provided to the Supplier by ACM shall remain the property of ACM. ACM also reserves the copyright. The Supplier shall return these to ACM without request or delay after performance of its service or if negotiations do not lead to the conclusion of a contract. The Supplier shall only be authorised to use these documents for the performance of its obligations towards ACM. In particular, the Supplier must not make them accessible to third parties and must refrain from using or duplicating them or permitting third parties to use or duplicate them without the express written consent of ACM. Any copies made by the Supplier shall be destroyed after the performance of its obligations, excepting only such copies as are kept for compliance with statutory retention obligations or data that is kept for routine backup purposes.
15.2 The Supplier must keep secret all documents and information it receives from ACM. They may only be disclosed to third parties with the express and written consent of ACM. This non-disclosure obligation extends also to personal data. The non-disclosure undertaking remains in force after fulfilment or failure of this contract; it lapses insofar and inasmuch as the information contained in the documents provided becomes public knowledge. This undertaking must also be imposed on third parties commissioned by the Supplier for the fulfilment of obligations arising from performance of this contract. ACM may demand immediate surrender and claim damages in the event that any of these obligations are breached.
15.2 Conclusion of the contract must also be kept confidential. The Supplier may only indicate its business with ACM in advertising materials once it has obtained the written consent of ACM. ACM and the supplier undertake to treat as business secrets all commercial or technical details which are not in the public domain and which become known to them as a result of their business relationship. This undertaking must also be imposed on third parties commissioned by the Supplier for the fulfilment of obligations arising from performance of this contract.
15.3 The Supplier warrants that proprietary rights held by third parties shall not be infringed by its deliveries. Where a claim is exercised against ACM by a third party in this respect, the Supplier is obliged without delay to indemnify ACM against all claims resulting from this at first request and to take measures to defend against these claims. The indemnification obligation shall also apply to all expenses as are incurred necessarily by ACM as a result of or in connection with a claim by a third party. This also includes the costs of legal representation. The indemnification obligation shall not apply insofar as the Supplier proves that it is neither responsible for the infringement of the property right nor should it have been aware of the infringement at the time of delivery through the exercise of due commercial care. The Supplier shall take out adequate insurance against these risks in a scope that is customary in the trade.
15.4 Our further legal claims due to defects of title in the products delivered to us remain unaffected.
Section 16 Final Provisions
16.1 The law of the Federal Republic of Germany shall apply to the exclusion of statutory instruments that refer to another legal system. The provisions of the UN Convention on Contracts for the International Sale of Goods shall apply. Where versions of these Terms and Conditions of Purchasing are made in languages other than German, only the German version shall have binding effect on ACM and the Supplier.
16.2 Subsidiary agreements, amendments, supplements, notifications and unilateral legal transactions by both parties (e.g. notices of termination, declarations of withdrawal) shall only be effective if they are in writing. Transmission by email or fax shall be sufficient for compliance with the written form as defined in these Terms and Conditions of Purchasing.
16.3 The place of jurisdiction for disputes arising from or in connection with the contractual relationship between ACM and the Supplier shall be Memmingen, provided that the contracting party is a merchant, a legal entity under public law or a special fund under public law. ACM nevertheless has the discretionary right to bring action against the Supplier at an alternative, competent place of jurisdiction.
16.4 The invalidity of any provisions of these Terms and Conditions of Purchasing, now or in the future, shall not affect the validity of the remaining provisions.
16.5 The rights set out in the other Terms and Conditions of Purchasing shall take precedence over the rights in Section 12 if there is any inconsistency between the provisions of Section 12 relating to ACM’s rights for the event of breaches of the Code of Conduct by the Supplier and any other legal consequences defined in these Terms and Conditions of Purchasing (e.g. indemnification in Section 15 for infringements of proprietary rights).
Version 1.1 / September 2022