In these General Terms and Conditions the following definitions apply:
General Terms and Conditions: these general terms and conditions.
AM: AUMANN MARITIME GmbH
Engagement Letter: a AM document which declares the General Terms and Conditions to apply and which describes the Work.
Client: the party awarding AM an engagement.
Engagement Team: the natural persons within AM, both individually and jointly, who are involved in performing the Work, and also third parties (being natural persons from outside AM) who have been called in by AM for the purposes of performing the Work. Agreement: the General Terms and Conditions and the Engagement Letter together with any other documents and conditions which are applicable to the Work in the relationship between AM and the Client (‘Additional Conditions’) and to which the Engagement Letter expressly refers. Work: the work to be performed by AM for a Client pursuant to the Engagement Letter, including supplying of, inter alia, goods and/or services.
2. APPLACABILITY OF THESE TERMS AND CONDITIONS
1. These General Terms and Conditions apply to the Work to be performed by AM for a Client. These General Terms and Conditions
also apply to additional and continued Work.
2. The applicability of any of the Client’s purchasing conditions or other conditions is expressly excluded.
3. FORMATION AND DURATION OF THE AGREEMENT
1. The Agreement will come into being at the moment when the Client confirms the Engagement Letter (orally or in writing or
electronically or tacitly) or at the moment when the Work is commenced.
2. The Agreement is concluded for a fixed term, unless it follows from the content, nature or tenor of the engagement given by the Client
that it has been concluded for an indefinite period.
4. CONTENT OF THE AGREEMENT / PRIORITY IN CASE OF CONFLICT
1. The Agreement constitutes the basis for all arrangements between AM and the Client with respect to the Work.
2. Any amendments or changes to the Agreement must be recorded in writing and must be signed by an authorised representative of AM
and an authorised representative of the Client.
3. In the event of conflict between the Engagement Letter and other elements of the Agreement, the Engagement Letter will prevail. In
the event of conflict between the General Terms and Conditions and any Additional Conditions, the Additional Conditions will prevail.
5. THE WORK AND ITS PERFORMANCE
1. The Engagement Letter contains a description of the Work to be performed by AM.
2. AM will exert itself to the best of its abilities to perform the Work in accordance with the arrangements and procedures agreed in writing
with the Client.
3. AM will determine how and by which person or persons the Work will be performed. If the Engagement Letter provides that specifically
named persons will perform the Work, AM will make reasonable efforts to ensure that these persons perform the Work. AM has the
right to replace the persons named in the Engagement Letter by persons of equal or comparable expertise.
4. If a phased performance of the Work has been agreed, AM may postpone commencing Work relating to a subsequent phase until the
Client has accepted the results of the preceding phase in writing and has paid all sums due.
5. Time-limits within which the Work must be completed will not be considered as strict deadlines, unless this has been expressly agreed.
Under no circumstances may the Client dissolve the Agreement on account of a failure to meet a time-limit. Furthermore, AM will never
be liable for compensation on account of any failure to meet a time limit.
6. If, at the request or with the prior consent of the Client, AM carries out work or performs outside the content or scope of the Work, the
Client will pay AM for such work or performance on the basis of AM’s customary rates.
7. The Client agrees that work or performance as referred to in Article 5.6 may affect the agreed or anticipated time of completion of the
Work and the mutual responsibilities of the Client and AM.
8. In the interest of the performance of the Work, including so as supporting the rendering of services, AM can call in third parties (also in
other jurisdictions), in the performance of the Work. If the Client wishes to call in third parties in the performance of the Work, it will
solely proceed to do so after having reached an agreement to that end with AM.
9. In performing the Work, AM may provide Client (or a third party appointed by Client) with a supporting tool(s) which is intended and
may only be used for the benefit of the Work. Client (or a third party appointed by Client) is responsible for a controlled rollout and
execution of such tool(s).
10. Upon completion of the Work AM may provide written advice, confirm an oral advice in writing, provide a (final) written report or give
an oral presentation. Prior to completing the Work, AM may provide oral, draft or interim advice, reports or presentations. In this case,
AM’s written advice or (final) written report will prevail. The Client is not entitled to invoke draft or interim advice, reports or
presentations. If the Client wishes to rely on an advice given orally or on an oral presentation given by way of completion of the Work,
the Client must inform AM of this intention, following which AM will supply written confirmation of the advice concerned.
11. AM is not bound to update oral or written advice, reports or results of the Work in response to events occurring after the final version
of the advice, report or results is issued.
12. Any advice, opinion, statement of expectation, forecasts and recommendations given by AM as part of the Work will under no
condition or circumstance whatsoever be construed as a guarantee with respect to future events or circumstances.
6. OBLIGATIONS OF THE CLIENT
1. Both of its own accord and at the request of AM, the Client will give its full cooperation and will in good time and in the desired form
and manner make available all relevant documents which AM may reasonably deem necessary to receive from the Client for the
proper performance of the Work. If AM works at the Client’s premises or makes use of the Client’s computer systems and telephone
networks, the Client will (at its own expense) provide the necessary access, security procedures, virus controls, facilities, licences and
permissions. If any part of the Work is not performed at AM own premises, the Client will also ensure that the employees of AM are
provided with adequate working space and other facilities necessary for the performance of the Work, which should meet all the
applicable statutory or other requirements.
2. The Client will ensure that AM is informed without delay of facts and circumstances which may be relevant in connection with the
proper performance of the Work.
3. The Client warrants the accuracy, completeness, reliability and legitimacy of the data and documents made available to AM, including
those originating from third parties, except where the nature of the Work dictates otherwise.
4. AM will not be liable for any loss suffered by the Client as a result of the fact that the Client or any third party (i) did not inform in good
time of, or withheld, facts and circumstances which may be relevant in connection with the proper performance of the Work and
(ii) misrepresented the facts.
5. The Client will bear the extra costs and additional fees arising from any delay in the performance of the Work caused by the fact that
the required data, documents mentioned in Article 6.1 were not made available or were not made available properly or in good time,
or by the failure to cooperate, to cooperate in good time or to cooperate properly, including failure to make available employees.
6. AM has the right to suspend the performance of the Work until the moment the Client has fully complied with the obligations in article
6 (1) and (2).
7. THE CLIENT’S RESPONSIBILITIES
Without prejudice to the obligations and responsibilities of AM in performing the Work, the Client will remain responsible and liable inter alia for the following:
– the management and day-to-day conduct of its business, the performance of its business activities and dealing with its own business
– decisions taken by the Client about the extent to which it wishes to rely on the advice, recommendations or other results of the Work,
and about using and implementing them;
– the Client agrees to designate an individual who possesses suitable skill, knowledge and experience to be responsible at all times for
the Client’s decisions and evaluate the adequacy of the results of the Work performed for the Client’s purpose, and accept
responsibility for the actions, if any, to be taken arising from the results of the Work.
1. AM will keep secret any confidential information furnished by or on behalf of the Client towards third parties, other than the parties
involved in the performance of the Work. This obligation does not apply to information, which AM is required to disclose by law, by any
rule of a supervisory body of AM, or pursuant to a professional duty resting on AM or on persons employed by or for or attached to AM,
or pursuant to a binding decision of a court or a public authority.
2. The obligation of paragraph 1 of this Article does not apply if the information referred to in that paragraph is already publicly known or
becomes publicly known other than as a result of a wrongful publication. Furthermore, this obligation is without prejudice to the right of
AM to submit information referred to in paragraph 1 of this Article to its insurers and/or advisers in connection with the professional
liability of AM or a third party, if this is necessary for the performance of the Work, including so as to support the rendering of services.
3. AM is authorised to use the information which the Client has placed at its disposal when AM acts for itself, or persons employed by or
for or attached to AM act for themselves, in disciplinary, criminal or civil proceedings in which this information may be relevant.
4. Unless the Client has obtained prior written permission from AM, the Client will not disclose the content of the Engagement Letter,
reports, advice or other statements made by AM, whether or not in writing, which were not prepared or made for the purpose of
providing the information contained therein to third parties. The Client will, moreover, ensure that third parties cannot take note of
the content referred to in the preceding sentence.
5. Except with prior written permission from AM, the Client will not make any statements about the approach and working procedures
used by AM.
6. The Client may exclusively use the quotation made by AM and the knowledge and ideas of AM contained in this quotation for the
purposes of evaluating its interest in awarding the engagement.
7. AM and the Client will impose their obligations pursuant to Article 8 on third parties engaged by them.
8. AM reserves the right to use the Client’s name and to mention the kind of work it performed for the Client for publicity and reference
purposes, and to mention all particulars which have already been made publicly known in the media.
9. AM is entitled to share in confidence information relating to the Client, to AM’s relationship with the Client, and to the Work, including
confidential information, with other AM Member Firms (also in other jurisdictions), in order to create and maintain a consolidated
repository of best practice and knowledge, where in each case they are required to implement safeguards to protect confidentiality.
10. AM is permitted to use and distribute data from / about the Client as he sees fit, as long as this data cannot be traced back to the
Client and/or natural persons.
9. INTELLECTUAL PROPERTY
1. AM reserves all rights in respect of products of the mind that AM uses or has used, or develops or has developed, in performing the
2. The Client is expressly prohibited from reproducing, disclosing or exploiting the products referred to in Article 9.1, including computer
programmes, system designs, processes, advice, master or other contracts and other products of the mind of AM.
3. AM may use, continue to develop and exchange with other AM Member Firms the knowledge, experience and general skills acquired
by AM as a result of performing the Work for the purposes of performing work for the Client and/or for clients of AM and/or for clients
of (an) other AM Member Firm(s).
10. KNOWLEDGE AND CONFLICTS
1. The Engagement Team will not be required, expected or assumed to have knowledge of facts and circumstances known to other
persons within AM and/or to other persons within the other AM Member Firms. Consequently, AM cannot be held accountable by
the Client for such facts and circumstances.
2. AM will be free at any time to render services to another party with an interest that competes or conflicts with the interests of the
Client (hereinafter: a ’Conflicting Party’), also if the interests of the Conflicting Party compete or conflict specifically and directly with the
Client’s interests in relation to the underlying interest. In the event that the interests of the Conflicting Party compete or conflict
specifically and directly with the Client’s interests in relation to the underlying interest, the Engagement Team will not perform work for
the Conflicting Party. Persons within AM other than those forming part of the Engagement Team may only render services to a
Conflicting Party under the condition that appropriate security measures have been put in place.
3. If the Client is or has become aware of the fact and/or the circumstance that AM is advising or intends to advise a Conflicting Party
in respect of an interest which competes or conflicts specifically and directly with the Client’s interests, the Client will inform AM of
the matter without delay.
11. FEE, PAYMENT, RECOVERY OF COSTS
1. AM will invoice the Work on the basis of its fee, costs (including costs of third parties that have been engaged) and any taxes
owing with respect to them. These items will be charged to the Client on a monthly, quarterly or annual basis, or upon completion
of the Work, unless AM and the Client agreed otherwise.
2. AM’s fee does not depend on the result of the Work.
3. For the purposes of Article 11.1 costs means direct costs plus a mark-up to cover expenses not directly allocated to the Work.
4. The amount invoiced by AM may differ from earlier estimates or quotations.
5. Invoices will be paid by the Client, without any deduction, discount or setoff, within fifteen (15) days of the invoice date. If the Client
fails to pay an invoice within this payment period, AM will be entitled, without further notice of default and without prejudice to the
other rights of AM, to charge the Client legal commercial interest from the due date until the date of payment in full.
6. All judicial and extrajudicial collection and other costs reasonably incurred by AM as a result of the Client’s failure to discharge
its payment obligations will be borne by the Client.
7. If, in the opinion of AM, the Client’s financial position or payment record gives reason to do so, AM may require the Client to make
a full or partial advance payment and/or to provide (additional) security in a form to be determined by AM. If the Client fails to
provide the required security, AM may, without prejudice to its other rights, immediately suspend the further performance of the
Agreement and any amounts owing by the Client to AM on any account whatsoever will be immediately due and payable.
8. If several Clients have jointly awarded an engagement, the Clients will be jointly and severally liable for payment of the invoice
amount to the extent that the Work was performed for the Clients jointly.
9. Where AM is required or requested to provide information in respect of the Client pursuant to a regulatory request, requirement
or through any form of legal proceedings, the Client agrees to reimburse AM for the costs AM and its personnel incurred in relation
to such requirement, request or proceeding, where AM actions were not also the subject of such requirement, request or
10. AM can perform additional Work and charge additional fees to the Client for the performed additional Work, if the Work is a
consequence of (inter)national laws and regulations applicable to the Agreement or the Work.
1. Complaints about the Work performed and/or the invoice amount must be made known to AM in writing within sixty (60) days of the
date of dispatch of the documents or information about which the Client has a complaint, or within sixty (60) days of the discovery of
the defect if the Client proves that it could not reasonably have discovered the defect at an earlier date.
2. Complaints referred to in Article 12.1 will not suspend the Client’s obligation to pay.
3. In the event of a well-founded complaint AM will have the choice between adjusting the fee charged, correcting the rejected Work or
doing it again, or not or no longer performing the engagement or part of the engagement while repaying a proportionate amount of
the fee already paid by the Client.
13. EARLY TERMINATION OF THE ENGAGEMENT
1. Both AM and the Client may terminate the Agreement by thirty (30) days’ written notice of termination. In the event of the Client
terminating the Agreement as referred to in the preceding sentence, the Client is obliged to reimburse all the losses and costs
suffered and incurred by AM. These losses and costs at least, but not exclusively, include all the costs incurred and investments
made and capacity lost by AM, in respect of the Agreement and (future) Work.
2. AM may furthermore terminate the Agreement by written notice with immediate effect in the event of unforeseen circumstances.
3. Both AM and the Client may only dissolve the Agreement if the other party fails imputably to perform an essential obligation
under the Agreement and if the other party is in default in the matter.
4. Upon termination pursuant to paragraph 1, 2 or 3 of Article 13, AM will continue to be entitled to payment of invoices for Work
already performed or any Work still to be performed by mutual agreement. The Client’s obligation to pay invoices for Work already
performed will become immediately due and payable as soon as the Agreement is terminated.
1. AM will perform the Work (and any additional work) to the best of its abilities and, in doing so, will exercise the required due care.
AM will only be liable if the Client can demonstrate that it has suffered loss as a result of a material error on the part of AM.
2. AM’s liability will be limited to an amount equal to one (1) time the fee payable to AM pursuant to the provisions of the Engagement
Letter, except in the case of intent or wilful recklessness on the part of AM’s executive staff. This limitation of liability will apply in full
in the event of liability to a number of Clients; in that case the amount paid by AM to all Clients jointly will not exceed one (1) time
the fee payable to AM pursuant to the provisions of the Engagement Letter.
3. AM will not be liable in any way whatsoever for consequential loss (including but not limited to lost profit, lost savings, loss due
to business interruption), except in the case of intent or wilful recklessness on the part of AM’s executive staff.
4. Except for the cases mentioned in Articles 14.1 to 14.3, AM will not be liable for damages on any account whatsoever.
5. AM will exercise due care when engaging third parties. AM will not be liable for any errors and/or failures of such third parties.
This does not apply to third parties which act as subcontractors and which act under the responsibility of AM.
6. The limitations on liability laid down in Article 14 operate both on behalf of AM (itself) and of the persons, individually as well as
jointly, within the Engagement Team.
7. AM Member Firms other than AM (whether or not engaged in the performance of the Work) will never be liable for any loss suffered
on the part of the Client in connection with the Work. The limitations on liability laid down in this Article 14 will also operate on behalf
of all AM Member Firms other than AM (whether or not engaged in the performance of the Work).
8. The provisions of this article 14 relate to both contractual and non-contractual liability of AM towards the Client.
1. The Client will indemnify AM against any and all claims of third parties arising from or connected to the Work performed or to
be performed for the Client, unless such claims result from intent or wilful recklessness on the part of AM’s executive staff. The
indemnity will include all loss suffered and legal and other costs incurred by AM in connection with claims.
2. The indemnity under paragraph 1 of this Article is also stipulated on behalf of the persons, both individually and jointly, forming the
Engagement Team, and on behalf of the other AM Member Firms whether or not engaged by AM for the performance of the Work.
16. PROTECTION OF PERSONAL DATA
1. AM may process personal data concerning and/or obtained from the Client (i) in performing the Work, (ii) in complying with statutory
obligations, (iii) for the purposes of supporting AM’s services to the Client, and (iv) to approach the Client and/or persons employed
by or working for the benefit of Client with information and with services provided by AM and third parties, including other AM
2. AM will process personal data in carrying out the activities mentioned in paragraph 1 in accordance with the applicable legislation
and regulations regarding personal data protection (“Applicable Legislation”), including inter alia the General Data Protection
Regulation (“GDPR”) and the German privacy Act. AM may share personal data with other AM Member Firms and/or other third
parties engaged by AM for (support relating to) the performance of the Work. Personal data will only be shared to the extent
necessary with regard to the aforementioned activities and to the extent it is in compliance with the Applicable Legislation.
3. To the extent that AM processes personal data pursuant to the Agreement, AM determines the purpose and means of this
data processing, and thus acts as controller within the meaning of the GDPR.
4. The Client has an independent duty to comply with the Applicable Legislation. The Client warrants the legitimacy of the provisioning
of the personal data to AM, and will comply with all legal requirements with regard to the Client in conformity with the Applicable
Legislation, including the requirement to inform the data subjects of the provisioning of their personal data to AM and the processing
thereof by AM in accordance with the Agreement.
5. AM will implement appropriate technical and organisational measures to safeguard the personal data against destruction, loss,
alteration or unauthorised disclosure of, or access thereto.
6. To the extent it concerns personal data provisioned by the Client, AM will inform the Client of (i) the receipt of a request from a
data subject wishing to exercise its rights, (ii) the receipt of a complaint or claim relating to the processing of the personal data,
and of (iii) becoming aware of a personal data breach, within the meaning of the GDPR.
7. Upon AM’s request, the Client will, without undue delay, fully cooperate and provide all information in order to comply with the
Applicable Legislation, including, but not limited to, to timely act on requests as referred to in Article 16 sub 6 (i) and to inform
data subjects if AM is obliged to do so as a consequence of a breach as referred to in article 16 sub 6 (iii).
8. The Client shall indemnify AM against any and all claims from third parties relating to non-compliance by the Client with the
Applicable Legislation. This indemnification includes all loss suffered and any and all (legal) costs that AM incurs or suffers in
connection with any such claim.
17. EMAIL AND THE USE OF INTERNET
The Client and AM may communicate with each other by means of electronic mail (email). The use of email and the internet entails risks, however, for example (but not limited to), distortion, delay, interception, manipulation and viruses. AM will not be liable for any loss arising from the use of email and/or the internet. In case of doubt about the content or transmission of email the extracts from AM’s computer systems will be decisive.
18. CONFIDENTIALITY, SAFEKEEPING AND OWNERSHIP OF THE FILE
AM will keep a file on the Client’s engagement. AM will take appropriate measures to safeguard the confidentiality and safekeeping of the file and to retain the files for a period which is acceptable by the professional practice standards and which is in accordance with the statutory regulations and professional rules on retention periods. The files are the property of AM.
Unless otherwise provided in the General Terms and Conditions, any right of action and other powers of the Client vis-à-vis AM on any account whatsoever will end ultimately upon the lapse of one (1) year after the moment when the Client became aware or could reasonably be aware of the existence of the right or powers in question.
1. AM and persons working as employees or on a contractual basis for or on behalf of the Client shall comply with the independence
regulations of domestic and international regulatory bodies. To enable AM to comply with the relevant independence regulations,
the Client shall timely, accurately and completely inform AM about the legal and the control structure of the Client or the group to
which the Client belongs, all financial and other interests and participations of the Client, as well as about all other (financial)
alliances its company or organisation has entered into, in the broadest sense of the word.
2. The obligations from AM, set out in article 8 (Confidentiality) do not apply and AM is entitled to use Client’s confidential information
and to provide such information to (i) other AM Member Firms and their personnel and/or (ii) other parties who facilitate the
administration of AM’s business or support its infrastructure in both cases to (a) perform client and engagement acceptance
procedures, (b) for the purposes of internal risk and independence conflict assessments and (c) to support the maintenance of
quality and professional standards in the delivery of the Work or services.
During the performance of the Work and for one (1) year after termination of the Agreement the parties will not employ any of the other party’s persons involved with the Work or otherwise have them perform work or negotiate in that context with these persons, except with the other party’s express prior written consent, which consent will not be withheld on unreasonable grounds.
22. MONEY LAUNDERY AND TERRORIST FINANCING (PREVENTION) ACT
Pursuant to the Money Laundering and Terrorist Financing (Prevention) Act (WWFT), AM is held to report to the Office for unusual transactions any unusual intended or performed transaction in so far as it is signalled in the context of our regular work. In addition, pursuant to the Money Laundering and Terrorist Financing (Prevention) Act, AM is held to carry out client investigations with regard to potential clients. This means, inter alia, the identification of the potential client and verification of the Client’s identity prior to the Work. AM can request assistance of the Client with regard to the client investigation.
23. CONTINUED EFFECT
All rights and obligations arising from the Agreement that by their purport are intended to continue in force after termination of the Agreement will remain in full force after the Agreement has ended.
Neither of the parties to the Agreement may transfer the rights and obligations arising from or related to the Agreement to a third party without the other party’s express written permission.
25. APPLICABLE LAW AND CHOICE OF FORUM
The Agreement is governed by German law. All disputes arising from or connected to the Agreement will fall under the exclusive jurisdiction of the competent court in the district in which AM has its seat. The United Nations Convention on Contracts for the International Sale of Goods with regard to Movable Property (the ‘Vienna Sales Convention’) does not apply.
10. MAY 2019