General Terms and Purchase
Valid from 01.12.2020
1. Scope of application, Supplier declarations
These General Terms and Conditions of Purchase (hereinafter referred to as ‘Terms and Conditions of Purchase’) apply to all business relationships of Ambulanz Mobile GmbH & Co. KG (hereinafter referred to as ‘Ambulanz Mobile’) with its suppliers and other business partners (hereinafter referred to as ‘Suppliers’), the subject of which is the delivery of goods or the provision of services to or vis-à-vis Ambulanz Mobile, irrespective of whether the Supplier manufactures goods itself or purchases them from sub-suppliers.
These Terms and Conditions of Purchase only apply to companies pursuant to § 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), legal entities under public law or special funds under public law.
These Terms and Conditions of Purchase shall apply exclusively. The Supplier’s terms and conditions shall not become part of the contract unless Ambulanz Mobile has explicitly agreed to their validity in writing. In particular, neither Ambulanz Mobile’s silence, reference to or agreement with Supplier letters, e.g. order confirmations, which contain or refer to the terms and conditions of the Supplier, nor unconditional acceptance of goods or services shall constitute Ambulanz Mobile’s agreement with the validity of those terms and conditions. The Supplier’s terms and conditions are hereby explicitly rejected.
These Terms and Conditions of Purchase shall also apply as a framework agreement for future contracts for the delivery of goods or the provision of services with the same Supplier to Ambulanz Mobile, even if Ambulanz Mobile no longer explicitly refers to their applicability. The Terms and Conditions of Purchase shall apply in their respectively current version; Ambulanz Mobile shall immediately notify the Supplier of any changes.
Individual agreements made in individual cases (including subsidiary agreements, supplements and amendments) between Ambulanz Mobile and the Supplier shall take precedence over these Terms and Conditions of Purchase. Such agreements must be set out in writing in a written contract or written confirmation by Ambulanz Mobile, which shall then determine the content.
Legally relevant declarations or notifications which the Supplier has to make to Ambulanz Mobile after conclusion of the contract (e.g. setting deadlines, reminders, declaration of withdrawal) require text form vis-à-vis the management of Ambulanz Mobile as a minimum in order to be effective.
Supplier offers and cost estimates shall be made free of charge and shall not create any obligations for Ambulanz Mobile. Ambulanz Mobile shall be entitled to retain documents provided by the Supplier and to use them for internal purposes.
If the Supplier intends to deviate from Ambulanz Mobile’s requests, it shall be obliged to explicitly and prominently point out such deviations in its offers, cost estimates, plans and comparable communications. The Supplier shall also offer Ambulanz Mobile solutions that are technically or economically more favorable compared to the request.
The Supplier shall be obliged to inform Ambulanz Mobile at the offer stage of any increased risks which are or may be associated with the item/goods to be delivered, such as a discontinued product, change of model, unsuitable usability, increased wear and tear, increased processing, maintenance and/or repair effort, etc. If such information is only provided after conclusion of the contract or if the relevant circumstances only become known after conclusion of the contract, Ambulanz Mobile shall be entitled to withdraw from the contract and/or to obtain a new offer on different terms.
On submission of the offer, the Supplier assures that security of supply (new delivery, spare parts, etc.) is guaranteed for the products offered for a period of at least ten years. If the Supplier is unable to ensure this when submitting the offer or at a later point in time, it shall be obliged to explicitly and clearly point this out to Ambulanz Mobile.
Individual contracts shall be concluded through individual orders or agreed with delivery schedules as per the following terms and conditions.
Ambulanz Mobile’s orders or delivery schedules are only binding if they are placed in writing, by fax or e-mail. Orders or subsidiary agreements placed verbally shall only become valid on written confirmation by Ambulanz Mobile.
The Supplier shall notify Ambulanz Mobile of any obvious errors (e.g. spelling and calculation errors), incompleteness or other inaccuracies for the purpose of correction or completion.
Unless otherwise specified in the order, the Supplier shall be obliged to confirm or reject Ambulanz Mobile’s order in writing within a period of 2 working days after receipt of the order or to inform Ambulanz Mobile that and to what extent it requires a longer period of time to review the order. If the Supplier does not make a declaration within this period, refuses to accept the order or requires a longer period of time, Ambulanz Mobile shall no longer be bound by the order after a deadline of 2 working days passes, without the Supplier being entitled to any claims for damages as a result of this.
The Supplier’s order confirmations must contain Ambulanz Mobile’s order number.
For framework and/or successive supply contracts, call-offs are binding for the Supplier within the framework of the contractual agreements with regard to the type and quantity of goods called off and the delivery period.
4. Import, export, costumers
If goods and services and come from an EU member state outside Germany, the EU VAT identification number must be provided.
Imported goods must be delivered duty paid. If goods are imported by Ambulanz Mobile, the Supplier is also obliged to provide a (long-term) supplier’s declaration at its own expense. Similarly, the Supplier shall, at its own expense, provide any other declarations and information required under foreign trade regulations for imports and exports, permit inspections by customs authorities and provide any necessary official confirmations.
The Supplier is obliged to inform Ambulanz Mobile in detail and in writing, without being requested to do so, of any authorization requirements for (re-)imports in accordance with German, European or US export and customs regulations as well as export and customs regulations of the country of origin of the deliveries (goods) or services.
5. Scope of services
Unless expressly agreed otherwise and/or in writing, the goods, materials and parts ordered by Ambulanz Mobile shall be provided by the Supplier in accordance with the European standards and guidelines for passenger cars applicable in the automotive industry, ISO and DIN standards, the latest state of technological advancement, the statutory provisions applicable to use and the performance data and other features contained in Ambulanz Mobile’s order or offer.
The information provided by the Supplier in connection with sales discussions, but in particular in the catalog, advertising documents, public statements, data sheets and/or other product descriptions shall furthermore be deemed to be the contractual quality of the purchased item.
Furthermore, all technical documents, records, descriptions, certificates, approvals, documentation, declarations, instructions as well as acceptance protocols, etc. which are required by law, ordinances, directives, in particular the Machinery Directive (Maschinenrichtlinie) or other official regulations and/or which are specified in the order or offer of Ambulanz Mobile, shall be part of the scope of supply.
For devices, a technical description and instructions for use shall be provided by the Supplier free of charge. For software products, the Supplier’s supply obligation is only met when complete (systematic and user) documentation has also been handed over. If programs are specially produced for Ambulanz Mobile, the program must also be supplied in source format.
Any Supplier conditions that deviate from the order, particularly quality, price and/or deadline changes, shall be ineffective without Ambulanz Mobile’s written consent. In addition, unconditional payment or acceptance of the supply does not imply any recognition of such different terms, conditions and prices by Ambulanz Mobile.
The Supplier shall not be entitled to make any changes to the object of delivery or service unless Ambulanz Mobile has, by way of exception, explicitly agreed to them in writing in advance.
Early deliveries/services, short or/and excess deliveries/services or part deliveries/partial services shall require the prior approval of Ambulanz Mobile.
Subcontracts shall require the prior written consent of Ambulanz Mobile unless they merely involve the supply of marketable parts.
6. Safety, environmental protection, compliance with legal requirements, inspections
The Supplier’s deliveries and services must comply with the statutory provisions, in particular safety and environmental protection provisions, including the Ordinance on Hazardous Substances, the Electrical and Electronic Equipment Act (ElektroG) and the safety recommendations of the competent German technical bodies and trade associations, e.g. VDE, VDI and DIN, as well as all other relevant legal, statutory, official and trade association provisions. Relevant certificates, test certificates and verifications shall be provided free of charge.
The Supplier is obliged to determine and comply with the current status of the directives and laws applicable to its components with regard to substance restrictions. The Supplier is also obliged not to use any prohibited substances. Substances to be avoided and hazardous substances according to the applicable laws and directives are to be indicated on the specifications by the Supplier. If applicable, the safety data sheets shall be submitted with the offers and, in the case of the respective first delivery, with the delivery note (in German or English as a minimum). Ambulanz Mobile must be immediately informed of any violations of substance restrictions and deliveries of prohibited substances.
For goods and services, the Supplier is solely responsible for compliance with accident prevention regulations. Any protective equipment required thereafter or any instructions from the manufacturer shall be provided free of charge.
With a notice period of 1 week within business or operating hours, including on the Supplier’s premises, Ambulanz Mobile shall be entitled to inform itself about the execution of the delivery/service in accordance with the contract. On request, the documents required for this purpose shall be submitted to Ambulanz Mobile for inspection. These disclosure obligations shall not apply if this disclosure leads to a violation of business and/or trade secrets of the Supplier or third parties to whom the Supplier is obliged to maintain confidentiality, which must also be observed by Ambulanz Mobile.
7. Delivery dates
The delivery periods, deadlines and/or dates for goods and services stated in the order are binding.
The Supplier shall be obliged to immediately notify Ambulanz Mobile in writing if circumstances arise or become apparent to it which indicate that the agreed delivery period cannot be met. In this case, it shall agree a new binding delivery date with Ambulanz Mobile. The agreement of such a new delivery date shall not prevent the occurrence of default on the originally agreed date.
If the Supplier fails to perform or fails to perform within the agreed delivery period or is in default, Ambulanz Mobile’s rights shall be determined in accordance with the following provisions and the statutory provisions.
In the event of a default in delivery, Ambulanz Mobile shall be entitled, without prejudice to further rights, to demand a fixed amount of compensation for the damage caused by the default in the amount of 1% of the order contract total per completed week of the default, but this shall not total more than 5% of the order contract total for the goods delivered late. Ambulanz Mobile reserves the right to provide evidence of higher damages. The Supplier shall be entitled to prove to Ambulanz Mobile that no damage or significantly lower damage was incurred as a result of the default.
Insofar as a fixed date transaction has been explicitly agreed for deliveries, Ambulanz Mobile shall be entitled to immediate withdrawal from the contract in the event of non-compliance with the agreed delivery date and to compensation for damages if the Supplier is at fault. Ambulanz Mobile does not need to send a reminder or set a deadline. The acceptance of delayed deliveries does not imply a waiver of claims for compensation and further claims for damages. The Supplier shall not be liable insofar as Ambulanz Mobile has not provided the necessary materials in time or in terms of sufficient quantity.
Delays for which the Supplier’s sub-suppliers are responsible shall be deemed to be the responsibility of the Supplier.
8. Prices, terms of payment
The price stated in the order is binding. In the absence of any contractual agreement to the contrary, the price includes goods delivered duty paid in accordance with DDP Incoterms 2010, including packaging and transport and liability insurance to the customary extent.
Unless otherwise stated in the contractual agreements, statutory value added tax is included in the prices.
Invoices must be sent to Ambulanz Mobile separately by post and must include the order number, otherwise, they cannot be allocated; the Supplier shall be responsible for all consequences arising from non-compliance with this obligation. Payment terms shall not commence.
Payments shall be made by Ambulanz Mobile following the complete receipt of goods free of defects, including handing over the agreed and/or required documentation and documents after receipt of an auditable invoice within 14 days with a 3% discount or within 30 days net. The payment date shall be deemed to be the date on which the bank receives the remittance slip from Ambulanz Mobile.
Similarly, payment terms set by Ambulanz Mobile shall only commence after fulfillment of the requirements set out in clause 1 of sections 8.3 and 8.4. In the absence of an auditable invoice, the payment terms specified in section 8.4 above shall be extended by at least 10 days.
Early (part) delivery shall not affect the agreed payment date for the order.
Payments do not imply recognition of the good or service as being in accordance with the contract. In the event of incomplete or defective goods or services, Ambulanz Mobile shall be entitled, without prejudice to its other rights, to withhold payments on receivables arising from the business relationship to a reasonable extent until the proper performance.
The Supplier is obliged to only offer Ambulanz Mobile prices and conditions which do not have any antitrust issues or are otherwise subject to price or condition agreements. Insofar as it has been established by a final or non-appealable decision of a court or an anti-trust authority that the Supplier was involved in price-fixing or customer allocation or has filed a leniency application due to such agreements, the Supplier shall be obliged to pay Ambulanz Mobile fixed compensation for damages in the amount of 3% of the invoice amounts paid by Ambulanz Mobile for the products and periods affected by the agreements. The amount shall bear interest from when the damage occurred at 5% above the base rate. Ambulanz Mobile is entitled to provide evidence of higher damages. The Supplier shall be entitled to prove that no damage or only minor damage occurred, in particular by passing on the damage to downstream market stages.
The assignment of receivables against Ambulanz Mobile to third parties is excluded.
Ambulanz Mobile shall be entitled to rights of set-off and retention to the extent provided by law.
9. Transport, shipping, transfer of risk
Delivery and shipment shall be made at the Supplier’s risk DDP in accordance with Incoterms 2010 carriage paid to the place of delivery specified by Ambulanz Mobile (place of performance). The Supplier is obliged to insure the goods to the usual extent.
Each delivery shall be accompanied by a delivery note stating Ambulanz Mobile’s order number and a description of the contents based on type and quantity.
In the case of delivery of dangerous goods, the Supplier shall bear full responsibility for compliance with the relevant legal provisions (such as labeling, packaging, use, proper completion, presentation and carrying of the required forms, etc.).
The Supplier shall comply with the regulations applicable at the place of use for the delivery, particularly regarding accident prevention, environmental protection and machine safety, etc. If the Supplier provides goods or services on Ambulanz Mobile’s premises, it shall be obliged to comply with the instructions on safety, environmental protection and fire protection for external parties in the version that currently applies.
Unless otherwise agreed, the delivery shall be made in disposable packaging that is standard in the industry. If reusable packaging is used, the Supplier shall provide Ambulanz Mobile with the packaging on loan. The return shall be at the expense and risk of the Supplier. If, by way of exception, Ambulanz Mobile agrees to bear the costs of packaging, these shall be charged at the verifiable cost price.
The risk of accidental loss and accidental deterioration of the item shall only transfer to Ambulanz Mobile on handover at the place of performance. Insofar as acceptance has been agreed, this shall determine transfer of risk. In the event of agreed installation of the delivery item by the Supplier, the risk of accidental loss and accidental deterioration of the item shall only pass to Ambulanz Mobile upon defect-free commissioning and acceptance at the specified place of delivery. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis in the event of acceptance.
The statutory provisions shall apply to the occurrence of default of acceptance on the part of Ambulanz Mobile. However, the Supplier must also explicitly offer performance to Ambulanz Mobile if a specific or determinable calendar date has been agreed for an action or cooperation on the part of Ambulanz Mobile (for example in the case of provision of materials). If Ambulanz Mobile is in default of acceptance, the Supplier shall be entitled to demand compensation for its additional expenses in accordance with the statutory provisions (§ 304 of the BGB). If the contract concerns an unreasonable item to be manufactured by the Supplier, the Supplier shall only be entitled to further rights if Ambulanz Mobile is obliged to cooperate and is responsible for the failure to cooperate.
10. Ownership, documents
Ownership of the delivered goods shall pass to Ambulanz Mobile once payment has been made in full. Any extended or expanded retention of title is excluded.
The Supplier explicitly agrees that the products delivered by it, including those installed, connected or processed, are distributed by Ambulanz Mobile worldwide.
11. Tools, material provided
Tools, models, matrices, templates, samples, technical documents, data, work standard sheets, manufacturing equipment, etc. (hereinafter collectively referred to as ‘tools’) provided by Ambulanz Mobile shall remain the full property of Ambulanz Mobile. The Supplier shall store the tools separately and carefully free of charge for Ambulanz Mobile, clearly and permanently marking Ambulanz Mobile’s property, protect them against damage and destruction as well as access by third parties of any kind, care for them, maintain them and repair normal wear and tear as well as insure them to a sufficient extent. The Supplier shall prevent attempts by third parties to take possession of the tools for security or execution or for other purposes by all appropriate legal means and shall immediately notify Ambulanz Mobile of any such measures.
The Supplier may only use the tools for the execution of the order in accordance with the provisions of the underlying contract, and in particular, shall not use them for other commercial purposes of the Supplier, e.g. for the provision of deliveries or services to third parties, and may not hand them over to third parties or make them otherwise accessible.
Insofar as the tools are no longer required for further orders by Ambulanz Mobile, but at the latest on termination of the supply relationship, any right of use of the Supplier to the tools shall end and these shall be returned to Ambulanz Mobile immediately, including any copies or duplicates made. Duplication or copying is only permitted to the extent that it is absolutely necessary for the execution of the contractual delivery or service and Ambulanz Mobile is notified of this in writing in advance. All trademarks, copyrights and other property rights to the tools remain with Ambulanz Mobile in full.
Furthermore, Ambulanz Mobile is entitled to demand that the tools are returned at any time; any right of retention on the part of the Supplier is excluded.
Sections 11.1 up to and including 11.3 shall apply accordingly if tools defined in accordance with section 11.1 are created, procured or otherwise made available by the Supplier at the expense of Ambulanz Mobile. If no separate agreements have been made in writing, full ownership and unrestricted right of use of the tools shall be transferred to Ambulanz Mobile immediately on manufacture or procurement of the tools by the Supplier. The handover shall be replaced by the Supplier storing the tools for Ambulanz Mobile free of charge. If the contract is terminated, production difficulties on the part of the Supplier or failure to reach an agreement between the Supplier and Ambulanz Mobile regarding the price of the parts to be manufactured using the tools, Ambulanz Mobile shall be entitled to demand that the tools are returned without delay. The Supplier’s right of retention is excluded.
The provisions in the previous section 11.1 up to and including 11.3 as well as 11.5 shall apply accordingly if the tools have only been paid for in part by Ambulanz Mobile. To this extent, Ambulanz Mobile shall become co-owner of these tools in accordance with its share of the manufacturing costs pursuant to section 11.5. Ambulanz Mobile may at any time acquire full ownership of these tools against reimbursement of the expenses not yet amortised and, after acquisition, shall fully exercise the rights pursuant to the previous section, section 11.5.
If the Supplier commissions a sub-supplier to manufacture or supply tools required to execute Ambulanz Mobile’s order, the Supplier shall assign its receivables against the sub-supplier for transfer of ownership of the tools to Ambulanz Mobile.
The provisions in section 11.1 up to and including 11.7 shall apply accordingly and insofar as tools are designed or adapted based on Ambulanz Mobile’s knowledge and experience.
The Parties agree that all tools under sections 11.1, 11.5, 11.6 and 11.8 contain considerable know-how of Ambulanz Mobile and that they are therefore fully subject to the non-disclosure provisions under section 15 below.
The provisions under sections 11.1 and 11.2 above shall apply mutatis mutandis to material provided by Ambulanz Mobile. Damage to the material provided shall be replaced by the Supplier. Any processing or transformation of the provided material by the Supplier shall be carried out for Ambulanz Mobile. Ambulanz Mobile shall immediately become the owner of the new items produced in the process. If the material provided is processed with other items that do not belong to Ambulanz Mobile, Ambulanz Mobile shall acquire co-ownership of the new item in the ratio of the objective value of the material provided for the other processed items at the time of processing.
12. Pflichtverletzungen wegen Mängeln
If the Supplier is required to deliver or perform according to the plans, drawings, samples or other special requirements of Ambulanz Mobile, conformity of the delivery or performance with these requirements shall be deemed to be explicitly assured. Should the good or service deviate from these assurances, Ambulanz Mobile shall immediately be entitled to the rights in section 12.6.
Unless otherwise stipulated in the individual contract, in particular by conclusion of a quality assurance agreement, Ambulanz Mobile shall inspect the goods immediately after delivery, insofar as this is feasible in the ordinary course of business. The complaint shall be deemed to have been made in good time if it is received by the Supplier within a period of 10 working days, calculated from the date of receipt of the goods or, in the case of hidden defects, from the date of discovery.
Ambulanz Mobile shall be entitled to the statutory claims for defects in full; Ambulanz Mobile shall be entitled to demand from the Supplier, at its discretion, rectification of the defect or delivery of a new item or, in the case of defective services, the defect-free repetition of the service. In this case, the Supplier shall be obliged to bear all expenses necessary for the purpose of rectifying the defect or the replacement delivery and/or to reimburse Ambulanz Mobile (in particular transport, handling, installation/removal, material and labour costs). The right to claim compensation for damages, in particular damages in lieu of performance, is explicitly reserved.
If Ambulanz Mobile returns the defective goods to the Supplier, Ambulanz Mobile shall be entitled to reclaim any payments already made and/or to charge back the invoice amount. In this case, Ambulanz Mobile shall be entitled to an expense allowance in the amount of 5% of the gross price of the defective goods. Ambulanz Mobile reserves the right to provide evidence of higher expenses. The Supplier shall be entitled to prove that no or only a lower amount of expenses were incurred.
The Supplier shall bear the risk of accidental loss and accidental deterioration of the item as long as it is in its safekeeping or in the safekeeping of a third party for the purpose of repair.
If the Supplier does not rectify the defect within a reasonable grace period set by Ambulanz Mobile, if setting a grace period is dispensable or if supplementary performance fails, Ambulanz Mobile may, at its discretion, withdraw from the contract or reduce the remuneration and additionally claim compensation for damages in each case in accordance with the statutory provisions. Ambulanz Mobile shall also be entitled to these rights in the event of development and construction errors.
If the Supplier fails to meet its obligation of supplementary performance within a reasonable period of time set by Ambulanz Mobile, Ambulanz Mobile shall be entitled to remedy the defect and any resulting damage itself (‘substitute performance’) or to have it remedied by third parties and to demand reimbursement of the necessary expenses or a corresponding advance payment from the Supplier. Setting a deadline for substitute performance shall not be required if supplementary performance by the Supplier has failed or is unreasonable for Ambulanz Mobile, e.g. if it is no longer possible to set a deadline for subsequent performance for the Supplier due to its defective delivery because of particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage. This shall also apply in the event of delayed delivery or performance by the Supplier if immediate rectification of the defect is necessary in order to avoid Ambulanz Mobile’s own delay in delivery. Ambulanz Mobile shall inform the Supplier of such circumstances without delay—before carrying out substitute performance, if possible. Further rights of Ambulanz Mobile due to defects remain unaffected.
If the same goods are repeatedly delivered with defects, Ambulanz Mobile shall be entitled to withdraw from the contract following a written warning in the event of another defective delivery, which also includes the unfulfilled scope of supply. All other rights of Ambulanz Mobile remain reserved.
The Supplier shall indemnify Ambulanz Mobile against all third-part claims—irrespective of the legal grounds—which third parties raise against Ambulanz Mobile due to a material or legal defect or any other defect of the product delivered by it and shall reimburse Ambulanz Mobile for the necessary costs of legal defence in this respect, unless the Supplier proves that it is not responsible for this breach of duty.
Subject to the following provisions in this section, section 12. and in section 13., the limitation period for claims for defects shall be 36 months, calculated from when risk transfers pursuant to section 9.6. The 3-year limitation period shall apply mutatis mutandis also to claims based on defects of title, where the statutory limitation period for claims in rem for surrender by third parties (§ 438   of the BGB) shall remain unaffected. Furthermore, claims based on defects of title shall in no case become time-barred as long as the third party can still assert the right—in particular for lack of limitation—against Ambulanz Mobile. Longer statutory limitation periods, e.g. § 445b of the BGB, as well as limitation periods agreed in individual contracts, shall remain unaffected.
If a defect occurs within the first 12 months after the start of the warranty period, it shall be assumed that this defect already existed at the time of the transfer of risk or acceptance, unless the Supplier proves that the defect was culpably caused by Ambulanz Mobile.
In the event of a timely and justified notice of defects, the warranty period shall be extended in the event of supplementary performance by rectification of defects by the period of time between the notice of defects and the completion of the rectification of defects or its failure or rejection by the Supplier.
Otherwise, Ambulanz Mobile’s statutory claims shall remain unaffected.
13. Supplier recourse
The legally determined recourse claims within a supply chain (supplier recourse according to § 445a, § 445b and § 478 of the BGB) shall be available to Ambulanz Mobile without restriction in addition to its claims due to defects. Ambulanz Mobile’s right of choice under section 12.3 and § 439 (1) of the BGB shall not be restricted by this. Ambulanz Mobile shall in particular be entitled to demand from the Supplier precisely the type of supplementary performance (repair or replacement delivery) that Ambulanz Mobile owes its customers in the individual case.
Before Ambulanz Mobile acknowledges or fulfils a claim for defects asserted by one of its customers (including reimbursement of expenses pursuant to § 445a  and § 439  and  of the BGB), Ambulanz Mobile shall notify the Supplier and request a written statement, briefly setting out the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by Ambulanz Mobile shall be deemed to be owed to its customer. In this case, the Supplier shall be responsible for proving the contrary.
Ambulanz Mobile shall also be entitled to claims from Supplier recourse if the defective goods have been further processed by Ambulanz Mobile or another entrepreneur, e.g. by installation in another product.
14. Product liability, indemnification, liability insurance
The Supplier is responsible for product liability for its deliveries within the framework of the statutory provisions and the following regulations.
Insofar as the Supplier is responsible for product damage, it shall be obliged to indemnify Ambulanz Mobile against claims for damages by third parties upon first request, insofar as the cause lies within its sphere of control and organisation and it is liable in relation to third parties.
Within the scope of the Supplier’s liability for damages within the meaning of this section, section 14.2, the Supplier shall also be obliged to reimburse any expenses pursuant to § 683 and § 670 of the BGB or pursuant to § 830, § 840 and § 426 of the BGB which arise from or in connection with a recall campaign carried out by Ambulanz Mobile. Ambulanz Mobile shall inform the Supplier about the content and scope of the recall to be carried out—as far as possible and reasonable—and give it the opportunity to comment. Further legal claims of Ambulanz Mobile against the Supplier shall remain unaffected.
The Supplier is obliged to maintain a product liability insurance with a sum insured of EUR 5 million per personal injury/property claim (fixed amount) until the respective expiry of the limitation period for defects of the delivered item; if Ambulanz Mobile is entitled to further claims for damages, these shall remain unaffected.
15. Non-disclosure, property rights
The Supplier shall be obliged to keep Ambulanz Mobile’s trade secrets described in further detail in section 15.2 and 15.3 below secret and, subject to the provisions in section 15.7 below, to obtain, use and disclose them exclusively for the purpose of fulfilling the respective purpose of the contract between the Parties. Any further acquisition, use or disclosure of Ambulanz Mobile’s trade secrets by the Supplier for its own or third parties’ purposes shall be inadmissible.
Ambulanz Mobile’s trade secrets constitute information within the meaning of § 2 of the Act on the Protection of Trade Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen, GeschGehG; hereinafter collectively referred to as ‘Ambulanz Mobile’s trade secrets’), regardless of whether they became known to the Supplier in written, verbal or electronic form or otherwise.
Ambulanz Mobile’s trade secrets particularly concern information regarding the production and development of ambulances by Ambulanz Mobile, including price calculations, and tools in accordance with section 11 above.
The Supplier shall not obtain Ambulanz Mobile trade secrets by observing, examining, disassembling or testing Ambulanz Mobile products or items in its lawful possession that have not already been made publicly available (such actions are hereinafter collectively ‘analyses’ or ‘reverse engineering’). The Supplier is obliged to not carry out any kind of analysis in order to obtain Ambulanz Mobile’s trade secrets. If analyses are carried out for other purposes and the Supplier thereby obtains Ambulanz Mobile’s trade secrets, the Supplier may not use or disclose these and must immediately inform Ambulanz Mobile of this.
To protect against reverse engineering, the Supplier is furthermore obliged to not pass on Ambulanz Mobile’s products or other items to third parties or to grant third parties access to them without Ambulanz Mobile’s explicit consent.
The provisions under sections 15.4 and 15.5 above shall apply accordingly to Ambulanz Mobile’s products or items that have been made publicly available.
Unless otherwise agreed in sections 15.4, 15.5 and 15.6 above, the permitted acts pursuant to § 3 of the GeschGehG shall remain unaffected. Similarly, the limitations of the scope of application in § 1 (2) and (3) of the GeschGehG as well as the exceptions according to § 5 of the GeschGehG shall remain unaffected.
The Supplier shall oblige its employees to comply with the restrictions set out in sections 15.1 to 15.7 above and ensure compliance therewith. The Supplier may only disclose Ambulanz Mobile’s trade secrets to employees or vicarious agents who are dependent on the knowledge of these Ambulanz Mobile trade secrets for the fulfilment of the purpose of the contract (need-to-know) and who have been bound to this confidentiality obligation accordingly prior to the disclosure. This does not constitute an entitlement of the Supplier to use vicarious agents.
The Supplier shall implement the appropriate technical and organisational measures in each case in order to adequately protect the Ambulanz Mobile trade secrets against any unauthorised acquisition, use and disclosure.
Unless otherwise expressly agreed in writing between the Parties, the Supplier shall not obtain any ownership, licence and/or other rights of use to Ambulanz Mobile’s trade secrets through access to Ambulanz Mobile’s trade secrets, with the exception of the right to use them for the fulfilment of the respective purpose of the contract.
At its own expense and at any time following a corresponding request from Ambulanz Mobile, as well as without any request, the Supplier is obliged to either return or irretrievably destroy, at Ambulanz Mobile’s discretion, all Ambulanz Mobile trade secrets in its, its employees’ or vicarious agents’ possession no later than once the respective purpose of the contract is achieved, whereby this obligation extends to originals as well as to any type of copy, insofar as this does not conflict with retention obligations agreed with the Supplier or statutory retention obligations, and to confirm the destruction of Ambulanz Mobile’s trade secrets to Ambulanz Mobile in writing without delay following a corresponding request to do so. This also applies to Ambulanz Mobile’s trade secrets stored electronically or otherwise, including any data storage devices.
For each breach of the obligations resulting from these non-disclosure provisions by the Supplier, its employees or other vicarious agents or assistants, the Supplier shall be obliged to pay a contractual penalty to Ambulanz Mobile in an appropriate amount, whereby Ambulanz Mobile shall determine the amount at its reasonable discretion within the meaning of § 315 of the BGB, and the appropriateness of the contractual penalty may be reviewed by the competent court in the event of a dispute. The right to claim further compensation for damages is reserved, whereby the contractual penalty shall be offset against any possible damages.
The regulations according to sections 15.1 to 15.12 above shall also apply to information from Ambulanz Mobile which is marked as confidential or is to be regarded as confidential according to the nature of the information or the circumstances of the transmission and which becomes known to the Supplier through the business relationship with Ambulanz Mobile and/or to which the Supplier obtains access in connection with the negotiation and execution of contractual agreements with Ambulanz Mobile.
The obligation of confidentiality according to the above sections shall cease to apply for information if the Supplier proves that this information is generally known or readily accessible or if Ambulanz Mobile no longer has a justified interest in keeping it confidential.
Manufacturing for third parties or the display of products manufactured especially for Ambulanz Mobile, particularly according to its plans, drawings or other special requirements, publications concerning the orders and services as well as the reference to this order vis-à-vis third parties, shall require the prior written consent of Ambulanz Mobile.
The Supplier shall be liable for ensuring that the samples, trademarks, models, drawings, descriptions and documentation provided by it are free of third-party rights and that it does not infringe any third-party rights, in particular industrial property rights, in connection with its supply, unless it proves that it is not responsible for the breach of duty.
In the event of infringements of these rights in accordance with section 15.16, the Supplier shall indemnify Ambulanz Mobile against claims for damages by third parties on first written request.
16. Place of jurisdiction, place of performance, applicable law, invalid provision
Unless otherwise expressly stipulated in the contractual agreements with the Supplier, the place of performance for all deliveries and payments shall be Schönebeck (Elbe).
The place of jurisdiction for any disputes arising from the contractual relationship is the registered office of the ordering company. However, Ambulanz Mobile shall also be entitled in all cases to take legal action at the place of performance of the delivery obligation in accordance with these Terms and Conditions of Purchase or a prior individual agreement, or shall be entitled to take legal action at the Supplier’s general place of jurisdiction.
All legal relationships between Ambulanz Mobile and the Supplier shall be governed by German law to the exclusion of all bilateral and/or multilateral agreements concerning the purchase of movable goods, in particular to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11/04/1980 (CISG) and the referral provisions of German private international law.
Should individual provisions of these Terms and Conditions of Purchase be or become invalid in whole or in part, the validity of the remaining provisions and the contract in its other existence shall not be affected thereby. It is agreed that the invalid provision shall be replaced by a valid provision which corresponds to the meaning and purpose of the invalid provision and comes as close as possible to the Parties’ economic interests.
Should any provision of these terms and conditions be invalid with respect to mandatory foreign law, the Supplier is obliged, at the request of Ambulanz Mobile, to agree on contractual supplements and make declarations to third parties or authorities through which the validity of the provision concerned and, if this is not possible, its economic content, is also guaranteed under the foreign law. If this foreign law is the Supplier’s home law or the law at the registered office of the supplying branch or if the Supplier is aware of the invalidity for other reasons, the Supplier is obliged to notify Ambulanz Mobile of this without delay.
Provisions 16.4 and 16.5 shall also apply in the event of contractual loopholes.