General Terms and Conditions
§ 1) Preamble
a) Area of Validity
These General Terms and Conditions shall be valid for all business relations between AFS GmbH, Königsallee 2b, 40212 Düsseldorf, represented by its General Managers Mr. Frank Rammin, Mr. Wouter Koenderink (called hereafter: AFS GmbH) and its customers at the time of contract completion. Contrary General Terms and Conditions by the customer are hereby expressly rejected.
b) Contract Agreement
Contract language is German. Customers, as by definition of these General Terms and Conditions, are business owners exclusively, according to § 14 BGB (German: Bürgerliches Gesetzbuch/German Civil Code)
c) Subsequent Change and Modification of the General Terms and Conditions
AFS GmbH is entitled and authorized to subsequently change and modify these General Terms and Conditions towards existing business relationships, as required by legal changes in legislation and jurisdiction or other circumstances, that the contractual equivalence is not only negligible offset. A subsequent modification or change of the General Terms and Conditions will become effective when the customer does not object the notification of the modification and changes within six (6) weeks. AFS GmbH will expressly notify the customer at the beginning of the period about the result of their silence as acceptance of the contract modification and changes, and grants them the option to deliver an exclusive letter of expression during that period. If the customer objects on time, AFS GmbH as well as the customer can invoke an extraordinary termination of the contract agreement.
AFS GmbH offers their customers a marketplace for commercial vehicle trade in Europe. AFS GmbH provides hereby the platform and is therefore not contract partner of the sales contracts which the customers enter into. The website offers its customers a large range of brand-new and new used cars. The customers can furthermore book extra services for the offers made by them for the AFS GmbH website. Interested users can register at the website. After registration, the users can see the sellers’ contact data (name, address, telephone number etc.) next to the vehicles and therefore get in contact with the sellers. Registration and the entry of offers are in principle free of charge. The customer can book additional fee-based services. This includes especially “Transport Service”, “Daily Specials”, and “Vehicle Package Deals”.
b) Transport Service
AFS GmbH offers its customers a Transport Placement Service. AFS GmbH therefore transmits the customer’s transport enquiry to a forwarding agency/logistics company. The transport is then executed by the forwarding agency which enters into an independent contract with the customer. AFS GmbH will not become a contract party to the forwarding agency’s contract. The (complimentary) placement service can be booked by the customer directly through the website.
c) Daily Specials
AFS GmbH offers their customers to enter Daily Specials. This includes various advertising measures so that the customer’s offer is promoted specifically. The exact measure is a result of the respective Daily Special. This additional service can be booked by the customer directly through the website.
d) Vehicle package deals
AFS GmbH makes it furthermore possible for their customers to enter special offers in form of vehicle package deals. In this case, the customer can sell several vehicles as a “package deal”. This additional service can be booked by the customer directly through the website
3) Close of Contract
To use the complete scope of this website, it is required to create a complimentary customer account. The data necessary for AFS GmbH’s render of service are herewith retrieved. The customer states whether they prefer using the website as seller or buyer or whether they want to not only purchase but also sell. Entries are confirmed by clicking the “Log-In” button. The customer then receives a confirmation email with the necessary log-in details. Only, when the customer logs in with this data for the very first time is the registration process concluded. The password which allows the customer entry to the personal area is treated as strictly confidential and may under no circumstances be given to third parties. The customer takes the necessary and appropriate measures to prevent knowledge of their password by third parties. A customer account cannot be transferred to other customers or other third parties. AFS GmbH reserves the right to verify the customer’s data (especially, if the customer operates as dealer).
b) Additional Fee-based Option
Registered customers have the option of booking various additional AFS GmbH’s services through the website. If a customer would like to book a corresponding Add-on, they choose the option first through the website and then books the add-on after entering the remaining required data before they confirm their order by clicking the button “Order”. With this order the customer explains their binding contract offer. AFS GmbH will, without delay, confirm the receipt of the customer’s order. The order confirmation does not yet indicate the legally binding offer acceptance. AFS GmbH will confirm the additional fee-based option booking within 2 days. By accepting the additionally booked service, a contract between AFS GmbH and the customer is realized.
c) Storage of Contract body
The contract body is stored by AFS GmbH and sent in written form (i.e. email, facsimile, or regular mail) next to the Terms and Conditions at hand and their customer information to the customer after having sent their order. The contract body cannot be obtained anymore through AFS GmbH’s website after sending the order. The customer can print the appropriate website’s page with the contract body by using the browser’s print function.
4) Service by AFS GmbH
a) Offer Publication
AFS GmbH will publish the created offers on its website based on the data received.
b) Render of Service
AFS GmbH is entitled to let third parties fulfill the contract in whole or in parts.
c) Delays of Delivery
Delays of delivery and services based on acts of God/force majeure and extraordinary and non-foreseeable events, which cannot be prevented even with extreme precaution by AFS GmbH (especially including: strikes, regulatory action or court orders, and instances of incorrect or improper delivery of goods to the seller despite the appropriate covering transaction to that effect), are not to be imputed to AFS GmbH. They entitle AFS GmbH to postpone delivery by the time period of the hindering circumstance.
d) Cancellation of Contract
At non-availability, based on the above-mentioned reasons, AFS GmbH may cancel the contract. AFS GmbH commits to inform the customer without delay about the non-availability and shall reimburse in return any services already rendered.
e) Further development of services/availability
AFS GmbH desires to adjust its services due to current technical developments and current market developments. AFS GmbH reserves therefore the right to make changes and modifications to the agreed services as far as such changes do not hinder the core services and are acceptable through consideration of the contract partner’s interest. The database is guaranteed in the context of the technical and business capabilities under consideration of the customer’s interest whereas at times temporary limitations in an acceptable range are possible (i.e. server maintenance, technical incidents).
f) Use of quotes through AFS GmbH
With the input of content into the database, the customer grants AFS GmbH the right to use such content for an unlimited time and for the required methods of use by entering and keeping them available in the database, esp. to save and store content, to copy, to keep available, to distribute, to publish and to make public.
g) Data storage
Data provided by customers to AFS GmbH are stored and edited based on the aforementioned, customized order and its specific purposes. AFS GmbH shall follow the usual data protection regulations.
Additional services are fee-based and can be purchased in addition by the customer. All prices are to be understood excluding Value Added Tax. Invoices can be paid by direct debit procedure (with SEPA mandate) (see § 6 d).
b) Delay of Payment
The customer shall be in delay of payment when payment has not been received by AFS GmbH within two weeks after receipt of invoice. In case of delay of payment, interest in the amount of nine percentage points above the European Central Bank’s base interest rate. Should the customer be delayed with their payments, then AFS GmbH reserves the right to charge overdue fees in the amount of EUR 2.50. The assertion of further damages shall remain undisputed.
c) Right of Retention
The enforcement of a right of retention is only available to the customer for such counterclaims which are due and based on the same legal relationship as the customer’s obligation.
d) SEPA Payments and Pre-Notification
Invoices can be settled by SEPA direct debit procedure. The buyer therefore awards a corresponding mandate to AFS GmbH (SEPA-Basis-Mandate, or if possible a SEPA-Company-Mandate). If invoices from services and deliveries are settled by SEPA Basis Direct Debit Procedure / Company Direct Debit Procedure, the customer receives a pre-notification about the Direct Debit. The Pre-Notification Period is shortened for B2B business-to-business SEPA direct debits to on (1) day. With CORE, the standard direct debit, this period is shortened for a first debit (FRST)/one-off debit (OOFF) to five (5) days and with recurring debit (RCUR) shortened to 2 days. The customer assures sufficient funds in the account. Expenses which occur due to the non-payment or back posting of the direct debit, are charged back to the customer, as long as the non-payment or back posting was not caused by AFS GmbH.
6) Responsibility of the customer
a) Content of Offers
The customer who is a seller commits themselves to enter legitimate offers exclusively, and to diligently and truthfully assemble and compile the information transmitted to AFS GmbH about the offer, and to immediately deactivate it when the offer is no longer current. The customer is responsible exclusively for the content and accuracy of the transferred data. The customer commits furthermore not to transfer data (especially product images), whose content infringe the rights of third parties (i. e. personality rights, naming rights, trademark rights, copyrights, etc.) or violate existing laws.
b) Liability exemption disclaimer
The customer commits to keep AFS GmbH free from all third party claims for prosecution, including appropriate or legally determined expenses which are based on a violation of duties or on a contractual, abusive and/or illegal use by the customer. The customer supports AFS GmbH with the defense of such claims, especially through making available all required information for the defense. The customer is required to compensate for damages which are incurred by AFS GmbH through the successful enforcement of such claims by third parties.
c) Abusive Offers
Abusive offers are deactivated or cancelled by AFS GmbH without prior announcements. Such offers exist specifically in the following instances:
– Buyers’ attention are drawn to undefined or even deliberately false data (this includes for instance incomplete offers, false details),
– further placement by buyers for fee-based Internet or telephone services (especially, 0190- or 0900 numbers),
– the products entered are not motor vehicles
d) Duties of the Seller
A seller is obliged to adhere to all applicable legal duties regarding information, especially the obligation regarding provider tagging, regarding the information about the usage of data, regarding the long-distance sale of goods and in e-commerce regarding their offers and contents.
If a seller uses their own General Terms and Conditions, they may not be in contrast to AFS GmbH’s General Terms and Conditions.
a) Liability exemption disclaimer
AFS GmbH, and its legal representatives and vicarious agents, shall only be liable for intent or gross negligence. As far as significant contract duties (consequently such duties, whose adherence are of considerable meaning for the reaching of the contract purposes) are affected, even slight negligence is covered. Liability is limited in this case to foreseeable, contract typical, immediate average damages.
AFS GmbH shall only be liable towards business owners in case of a gross negligent violation against non-essential contractual duties only in the amount of the foreseeable, contract typical, immediate average damage.
b) Retention of Liability
The aforementioned liability exemption disclaimer shall not concern liability for damage to loss of life, bodily injury or damage to the health of a person. Regulations of the German Product Liability Law shall also be untouched by the exclusion from liability.
c) Data Storage Protection
AFS GmbH conducts effective data storage protection within the scope of service performance, but does not guarantee a general data protection guarantee for the data submitted by the user. The user is also responsible themselves to save and store appropriate data back-ups in regular intervals and to prevent loss of data. AFS GmbH exercises appropriate care regarding the performance of services and will conduct data storage with the required expert knowledge. AFS GmbH does not assure, however, that the saved and stored content or data, which are accessed by the user, are not accidentally damaged or falsified, lost or otherwise removed.
8) Final clause
a) Place of Jurisdiction
It is agreed that the exclusive place of jurisdiction for all litigation proceedings based on this contract shall be the registered office of AFS GmbH in Düsseldorf, insofar as the customer is a merchant, legal entity under public law or special fund under public law, or insofar as the customer does not have a place of jurisdiction in the Federal Republic of Germany.
b) Governing Law
Unless mandatory legal provisions based on the customer’s right of domicile do not prevent it, it shall be agreed upon that German law shall valid excluding the UN Convention on the International Sale of Goods.
c) Severability Clause
Should individual terms of this contract become invalid or ineffective, it shall not infringe on the validity of the remaining General Terms and Conditions.