General Terms and Conditions
Valid from 02/2014
- General scope
1. These general terms and conditions apply to all contractual relationships between Ambulanz Mobile GmbH & Co. KG, Schönebeck (Ambulanz Mobile) and its customers, and covers the deliveries and services – of all kinds – carried out by Ambulanz Mobile for its customers.
- These general terms and conditions become part of the contract. The Customer’s general terms and conditions will not apply under any circumstances – even if they are appended to the orders or confirmations.
- Ambulanz Mobile will provide its services and deliverables exclusively on the basis of these general terms and conditions. The Customer’s general terms and conditions are not part of the contract, even if they are appended to other declarations by the Customer and Ambulanz Mobile has not expressly contradicted their validity. Moreover, the Customer accepts these general terms and conditions at the latest upon receipt or acceptance of the service or deliverables.
- Offers and Orders
1. Offers from Ambulanz Mobile, which are labelled or designated as being subject to confirmation, or which are designated as subject to confirmation in the pricing information, merely constitute an invitation to the Customer to submit an offer, and are therefore always non-binding. Moreover, offers from Ambulanz Mobile may be freely revoked up until acceptance by the Customer and expire 4 weeks after receipt, irrespective of a cancellation.
- Customer offers for the conclusion of a contract, in particular those, which occur as a result of a non-binding offer from Ambulanz Mobile as described in section II, 1. are – unless stipulated otherwise by the offer – legally binding for the Customer for a duration of 4 weeks following receipt by Ambulanz Mobile, and expire only once this deadline has expired.
- As a rule, a Customer offer for the conclusion of a contract is accepted by means of a written confirmation of the order from Ambulanz Mobile.
- The offer or the order confirmation must fully describe the services to be provided and specify the tentative or binding delivery or completion date.
- All offers as well as drawings and other documents, received by the Customer in connection with an offer or on the basis of an order, are confidential. Ambulanz Mobile reserves all rights to these documents.
- Ambulanz Mobile reserves the right to make changes in terms of design, material and design, unless this affects the usability of the service for the intended purpose.
- Unless otherwise indicated, all prices contained in Ambulanz Mobile offers and price lists are net ex works.
III. Price Changes
Ambulanz Mobile reserves the right to change the agreed prices unilaterally if and insofar as the delivery costs for products and services, which are necessary to carry out the order, change after the contract has been concluded up until acceptance or delivery. A change in price is not permissible if a fixed price has been expressly agreed upon.
- Completion and Delivery Times
1. Ambulanz Mobile is obliged to adhere to a delivery or completion date, specified in writing as binding, or to a delivery or completion deadline, specified in writing as binding. In the event that the placed order is changed or extended at the request of the Customer, the agreed delivery or completion date becomes invalid. In this case, Ambulanz Mobile will specify a new binding delivery or completion date at their own discretion, taking into consideration any delays resulting from the change or extension of the order.
- In the event that a binding delivery or completion date or a delivery or completion deadline has not been agreed, Ambulanz Mobile will complete the order within a reasonable period of time.
- Delivery and completion times begin with the conclusion of the contract, but not before the Customer has submitted all documents, approvals and permits, as well as any parts or equipment to be provided by the Customer.
- The delivery or completion deadline is considered to have been met if the ordered item leaves the Ambulanz Mobile premises before expiry of the deadline. If the Customer is obliged to pick up, then the delivery or completion deadline is considered to have been met upon notification of readiness for shipment.
- In the event that Ambulanz Mobile is late in delivering the ordered item, the Customer is entitled to cancel the contract after expiry of a reasonable grace period to be set by the Customer, and to seek compensation to the amount of 0.5% of the net order value for each full week that Ambulanz Mobile is in default. The compensation may not exceed 5% of the net order value of the part of delivery affected by the delay.
- Should the Customer delay or neglect to carry out the cooperative steps necessary for the manufacture and delivery of the ordered item, e.g. the supply of fittings, modifications or extensions, the Customer does not accept the ordered item after the transfer of risk, or the Customer fails to fulfil its payment obligations, Ambulanz Mobile may cancel the contract according to the legal regulations and claim compensation instead of services due to failure of performance. In the latter case, Ambulanz Mobile reserves the right to claim either compensation for the actual losses incurred, or a lump-sum in the amount of 20% of the gross order value, unless the Customer can provide evidence of damage to a lesser extent.
- If and insofar as Ambulanz Mobile is delayed or prevented from carrying out delivery or services through no control of their own due to force majeure, especially as a result of natural disasters or storms, strikes, lockouts, absence of skilled personnel, failure or delays in supplies, the Customer is not entitled to any claims or rights, in particular due to such circumstances. However, Ambulanz Mobile is obligated to inform the Customer of such circumstances and their probable duration insofar as the interests of the Customer are affected. If the circumstances lead to a delay in delivery of more than 3 months, the Customer is entitled to cancel the contract. 8. Ambulanz Mobile reserves the right to award subcontracts and to carry out any tests or transportation of the ordered item.
- Acceptance, Handover and Transfer of Risk
1. The Customer is obliged to accept the ordered item within 7 days of receipt of the notification of readiness for dispatch, provided that acceptance is not excluded according to the type of the ordered item. In the event of non-acceptance, Ambulanz Mobile may exercise its legal rights. If Ambulanz Mobile seeks compensation, the sum will be 20% of the agreed net order value. Ambulanz Mobile and the Customer are entitled to prove higher or lower damage.
- The acceptance or handover of the ordered item by Ambulanz Mobile shall take place in Ambulanz Mobile’s premises, unless agreed otherwise. Upon acceptance or handover, risk is transferred to the Customer. In the event that Ambulanz Mobile ships the ordered item to another location at the request of the Customer, risk is transferred to the Customer as soon as Ambulanz Mobile has handed over the object to the forwarding agent, carrier or other person specified for shipping the goods. If acceptance, handover or dispatch is delayed due to circumstances outside of Ambulanz Mobile’s control, risk is transferred to the Customer on the day of notification of readiness for dispatch.
- The ordered item may also be stored elsewhere. The costs and risks of storage shall be borne by the Customer.
- Contractual objects delivered by Ambulanz Mobile to the Customer or in accordance with the Customer’s instructions must be accepted by the Customer without prejudice to any warranty claims, provided the objects are free of defects.
- Partial deliveries are permitted.
- Prices and Payment
1. Ambulanz Mobile is entitled to demand a reasonable advance payment when placing the order.
- Unless otherwise agreed, Ambulanz Mobile’s ex work list prices for the contractual object valid on the date of delivery shall apply. VAT will also be charged to the applicable amount at the time of delivery. Packaging, freight, insurance, customs duties and any other expenses shall be borne by the Customer.
- Unless specific payment dates have been agreed upon, the price of the contractual object is due for payment within 1 week following the notification of completion or after the invoice has been sent, without cash discounts or any other deductions.
- Ambulanz Mobile is entitled to send invoices for authorised partial deliveries or services.
- If the Customer defaults on their payment obligations, Ambulanz Mobile is entitled to charge interest at the rate of 8% p.a. in excess of the base rate. Ambulanz Mobile reserves the right to prove greater losses incurred as a result of the default.
- Ambulanz Mobile can refuse performance if there are indications after conclusion of the contract that entitlement to the purchase price is at risk through insufficient solvency of the Customer. The right to refuse performance is not applicable if the Customer pays or provides collateral. Ambulanz Mobile may set a reasonable grace period within which the Customer may choose to either pay or provide collateral. Once the grace period has passed unsuccessfully, Ambulanz Mobile may cancel the contract.
- The Customer is not entitled to offset any claims of their own, unless these are undisputed or have been legally upheld. The Customer is not entitled to exercise a right of retention against claims made by Ambulanz Mobile due to claims from other legal relationships.
- The Customer agrees to offsetting its payments and receivables from Ambulanz Mobile. The offsetting shall extend to the balance in current account relationships. 9. In the event that Ambulanz Mobile agrees to take back delivered parts or parts for services that have not been performed, Ambulanz Mobile is entitled to seek reimbursement from the Customer to the amount of 30% of the gross value of the parts taken back and for any transport costs incurred as a result.
VII. Extended Right of Lien
Ambulanz Mobile and the Customer are in agreement that Ambulanz Mobile acquires a contractual right of lien to the object in their possession due to the order. The right of lien serves as collateral for all existing, future and conditional claims by Ambulanz Mobile against the Customer. In the event that the Customer has assumed liability for the liabilities of another customer (e.g. as guarantor), the right of lien shall secure the debt arising from the assumption of liability when it becomes due. For all claims, which do not relate to the ordered item, the contractual right of lien shall only apply insofar as these are uncontested or have become res judicata and the ordered item is owned by the Customer.
VIII. Retention of Title
1. Ambulanz Mobile retains title of ownership to all ordered items until payment of all receivables arising from the business relationship has been made in full by the Customer. In the case of current accounts, the entire reserved goods shall serve as security for the balance. Should the realisable value of the existing securities held by Ambulanz Mobile exceed the claims against the Customer by more than 25%, Ambulanz Mobile is obligated to release the security of the Customer’s choice at its request.
- The Customer may resell the reserved goods only in the normal course of business and under its usual terms of business as long as it is not in arrears and only under reservation of title. The Customer assigns any claims along with all ancillary rights arising from a sale of the reserved goods to Ambulanz Mobile. Ambulanz Mobile accepts the assignment. The Customer is authorised to collect the amount receivable arising from the resale despite the assignment, provided Ambulanz Mobile does not collect the receivable because the Customer is unable to meet its payment obligations.
- In the event that the property is pledged or confiscated or disposed of in any way by third parties, the Customer shall inform Ambulanz Mobile immediately by registered mail and bear the costs of any measures taken to remedy the intervention, in particular the costs of intervention proceedings, if they cannot be collected from the opposing party.
- If the Customer fails to fulfil a due service as agreed, in particular, it is in default of payment of receivables, or insolvency proceedings are opened against the Customer’s assets, Ambulanz Mobile is entitled to cancel the contract and demand the return of the reserved goods after setting an appropriate payment deadline to no avail. All costs arising from the retrieval of the goods shall be borne by the Customer. Ambulanz Mobile is entitled, without prejudice to the payment obligation of the Customer, to realise the returned service and ordered item in addition to accessories by fiduciary sale in the best possible way. The assertion of the retention of title and the seizure of the ordered item by Ambulanz Mobile do not constitute a withdrawal from the contract.
1. Unless otherwise agreed, Ambulanz Mobile guarantees, in accordance with the relevant state of technology at the time of placing the order, that the ordered item shall be free of defects upon delivery. Specifications listed in the descriptions, documents and diagrams concerning the ordered item and its performance, operating costs, speed, weight, energy, measurements, consumption etc. are non-binding and do not constitute specifications within the meaning set out in § 443 of the German Civil Code (BGB). Ambulanz Mobile does not accept any liability for defects caused by improper handling on the part of the Customer, e.g. improper use, failure to adhere to operating and maintenance manuals, incorrect assembly or startup, incorrect maintenance, excessive loading or the use of unsuitable operating materials and substances.
- Insofar as an acceptance of the ordered item is ruled out in the individual case, the Customer is obligated to inspect the ordered item immediately upon transfer and report any defects to Ambulanz Mobile in writing immediately but at the latest within 3 working days. Should the Customer neglect to send such a timely notification, the delivery or service shall be deemed approved, unless the defect could not be detected upon inspection. Should a defect show up later, notification must be sent immediately after the discovery thereof, otherwise the delivery shall be deemed approved even in consideration of this defect.
- If the Customer has a warranty claim, the following rights exist:
a) At the discretion of Ambulanz Mobile, the warranty extends to repair or replacement of the ordered item (“subsequent performance”). The location for carrying out subsequent performance shall be determined by Ambulanz Mobile, while observing the interests of the Customer. If individual parts are required to replace the defective parts, Ambulanz Mobile shall ship these to the Customer free of charge. Ownership of replaced parts shall be transferred to Ambulanz Mobile
b) If the subsequent performance is seen to have conclusively failed or been refused by Ambulanz Mobile, the Customer may cancel the contract or reduce the agreed price accordingly. The Customer may only seek compensation in accordance with the provisions set out in section XI.
- Customer claims to warranty against Ambulanz Mobile in accordance with the above provisions expire after one year. The period of limitation begins with the acceptance of the ordered item. If acceptance is ruled out according to the type of the ordered item, the period begins with the dispatch.
- Compensation for Use, Impairment
If the Customer cancels the contract, it must pay compensation for use and any impairment, provided the Customer or a third party had the ordered item in their possession or were able to take possession thereof upon delivery. Ambulanz Mobile is entitled to demand a flat rate as compensation for the use and reduction in value to the amount of 0.1% of the net order value of the ordered item for each day of use. The Customer reserves the right to prove that Ambulanz Mobile suffered no or substantially fewer losses than the aforementioned flat rate.
- Liability, Entrepreneur’s Recourse
1. Ambulanz Mobile is liable in case of injury to life, limb or health as well as damage, caused by Ambulanz Mobile’s negligent or intentional violation of a cardinal obligation or by its legal representatives or vicarious agents, in accordance with the statutory provisions. Cardinal obligations are obligations, whose fulfilment is essential for the due and proper implementation of the contract and on whose fulfilment the customer could reasonably rely.
- Ambulanz Mobile shall only be liable for damage not covered by the preceding section 1, if it is based on a grossly negligent breach of duty by Ambulanz Mobile or a deliberate or grossly negligent breach of duty by a legal representative or vicarious agent of Ambulanz Mobile. However, liability is limited to the typical, foreseeable damage.
- If recourse is taken against the Customer as entrepreneur as defined in § 478 of the German Civil Code (BGB), in order to safeguard its right of recourse against Ambulanz Mobile the Customer must inform Ambulanz Mobile immediately that it intends to exercise this right and it must provide an explanation of the alleged defect. The timely dispatch of the notice shall suffice. However, the Customer is required to provide proof of receipt. Insofar as the right of recourse against Ambulanz Mobile is not already excluded due to clause 1 or § 377 of the German Civil Code (BGB), Ambulanz Mobile is entitled to choose whether to provide compensation in the form of an individual settlement or by providing appropriate additional supplies free of charge with the Customer’s next order. The provision of additional supplies is appropriate when it corresponds to the ratio of defect-free goods to defective goods of previous deliveries.
XII. Replacement Parts
At the request of the Customer, Ambulanz Mobile shall supply replacement parts in exchange for old parts at the agreed exchange price. Minor variations in the execution of replacement parts are permitted. The Customer must ship old parts free of charge and free of any defects which may prevent them from being reprocessed, in particular the old parts must not have any welded or non-welded cracks. In the event that the replacement part is delivered before the Customer has sent back the old part, Ambulanz Mobile shall charge the price for a new replacement part instead of the exchange price. Upon receipt of the old part, the Customer’s account will be credited with the difference between the new price and exchange price. The old parts become the property of Ambulanz Mobile upon delivery. The Customer confirms with delivery that they are the owner of the old part or that they are authorised to transfer ownership and that no third parties have a claim over the old part.
XIII. Transfer of Rights and Obligations, Prohibition of Assignment
Any transfer of rights and obligations from the contract and the assignment of claims by the Customer requires prior written consent from Ambulanz Mobile to become effective.
XIV. Place of Performance, Venue and Applicable Law
- Place of performance shall be that of the registered office of Ambulanz Mobile.
- For all current and future claims from the business relationship, including bills of exchange and cheques receivable, the exclusive place of jurisdiction shall be Magdeburg, or the location of the premises or the delivering branch at the discretion of Ambulanz Mobile. Ambulanz Mobile reserves the right to apply to the court in the Customer’s jurisdiction.
- The laws of the Federal Republic of Germany shall apply exclusively with the exception of the UN Sales Convention (CISG)
- Invalidity of the Provisions
In the event that one or more provisions of a contract concluded between a customer and Ambulanz Mobile be or become ineffective, it shall not affect the effectiveness of the remaining provisions. § 306 (German Civil Code) BGB shall apply to these general terms and conditions. Ambulanz Mobile GmbH & Co. KG, Glinder Straße 1, 39218 Schönebeck