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The following Terms, Items 1-11, apply to commercial
business with all customers not qualifying as consumers within the meaning of
Art 13 of the Civil Code (BGB) and domiciled in the national jurisdiction. For
customers domiciled abroad only Item 12 applies.
1. Inclusion of
these business terms
1.1 Supply, service and bidding occur exclusively on the basis of these present
Business Terms which thereby apply to all future business dealings even if they
are not expressly agreed anew. These Terms shall be deemed to have been accepted
upon receipt of the goods or services at the latest. Contrary confirmations by
the customer with reference to the latter’s own terms are hereby contested.
This shall also apply to the case that the customer has stipulated a specific
form for such contestation. Departures from these present Business Terms shall
only have binding force if AFRICOM has confirmed them in writing.Orders as well
as ancillary verbal understandings about orders should for the purpose of
documentation at least be concluded in the form of text.
2.
Conclusion of contracts, statements and information obligations in
electronic trading
2.1 AFRICOM’s bids shall be subject to change and without obligation.
Reservation is made for technical modifications in the framework of what
is reasonable; adjustment of AFRICOM products to subsequent
standardsetting likewise.
2.2 With the order, regardless of however transmitted, for goods the
customer declares with binding force that it wishes to acquire the goods
ordered (contract bid). AFRICOM shall be entitled to accept such a
contract bid within two weeks from the date of its receipt by AFRICOM.
Acceptance may either occur explicitly in written or text form or by
shipping of the goods ordered.
2.3 In electronic legal transactions, confirmation of receipt of the order
shall not constitute a binding statement of acceptance unless the
acceptance is expressly stated in the confirmation of receipt.
2.4 Where an order is placed by electronic means, the contract text shall
be saved by AFRICOM and, upon request, sent to the customer together with
these present Standard Business Terms per email. The information
obligations in Art 312e, paragraph 1, numerals 1-3 of the Civil Code (BGB)
(provision of technical aids for remedy of input errors, provision of
information according to the Information Obligation Ordinance, immediate
confirmation of receipt) shall otherwise be expressly barred.
3. Delivery
deadlines, delivery delays
3.1 Delivery deadlines shall not begin prior to complete clarification
of all technical details.
3.2 Compliance with delivery deadlines shall presuppose fulfilment of the
customer’s contractual obligations, including in particular the
obligation to make an agreed down payment.
3.3 Force majeure events shall entitle AFRICOM to postpone delivery by the
duration of the obstacle and an appropriate startup period or to cancel
the contract in part or in full as regards its portion not fulfilled.
Equated with force majeure shall be strikes, lockouts or unpredictable,
inevitable circumstances such as operational problems making it impossible
for AFRICOM to effect timely delivery despite reasonable efforts to do so.
AFRICOM shall bear the burden of proof.
3.4 The same shall also apply if the foresaid obstacles should occur
during a delay or with a sub-supplier. The customer may challenge AFRICOM
to state within two weeks if AFRICOM wishes to cancel or deliver within an
appropriate supplemental deadline to be set by the customer. Should
AFRICOM not state its intention, then the customer may cancel the
unfulfilled part of the contract.
3.5 Should delivery deadlines shift in application of these clauses or
should the customer cancel in full or in part, then this shall not
constitute grounds to assert any damage compensation claim against AFRICOM.
3.6 AFRICOM may only invoke Items 3.1 through 3.5 if AFRICOM has
immediately notified the customer of the occurrence of such events.
4. Passing of
risk, shipping damage
4.1 Risk shall pass to the customer as soon as the shipment has been
handed over to the party carrying out shipment or as soon as the shipment
has left the AFRICOM warehouse for the purpose of being shipped. This
shall also apply if delivery has been agreed delivery free.
4.2 If the shipment becomes impossible through no fault of AFRICOM then
the risk shall pass to the customer upon notification of readiness to ship.
4.3 The selection of packaging and mode of shipment shall be left to
AFRICOM unless the customer has issued explicit instructions hereon.
4.4 Shipping damage must be complained about to the shipping agent or
freight forwarder immediately after receipt of the shipment and an
attestation to this effect shall be issued.
5. Pricing,
minimum order amount, discounts
5.1 AFRICOM shall invoice prices in Euro according to the provisions of the
currently applicable price list for the various product groups. Such
prices shall be exclusive of VAT, shipping and packaging. For specials the
prices agreed in each instance shall apply, in cases of doubt the price
quoted in AFRICOM’s order confirmation shall be definitive.
5.2 For every order, a minimum amount of Euro 25.00 shall be charged. AFRICOM shall
grant, upwards of 100 items with the same dimensions a discount of 5%,
upwards of an order of 200 items with the same dimensions a discount of
10%.
6. Payment
terms, payment delay by the customer, prohibition on offset
6.1 AFRICOM’s invoices shall payable in advance without any discount.
The customer shall be under a contractual obligation to pay the purchase
sum before receipt of the goods.
6.2 AFRICOM shall be entitled notwithstanding customer regulations to the
contrary to first set off payments against the customer’s older debts.
If costs and interest have already been incurred, then AFRICOM shall be
entitled to first apply the payment to costs and then to interest and only
thereafter to the principal claim.
6.3 A payment shall only be deemed to have been made if AFRICOM has
control of the amount. In the case of payment by paper instrument, which
AFRICOM reserves the right to accept on a case-by-case basis, the payment
shall only be deemed to have been made when the instrument has been
honoured. Costs and expenses connected therewith shall be borne by the
customer.
6.4 The customer shall pay for the duration of any arrears interest at 8%
above the base lending rate on the amount outstanding. The customer shall
have the onus of proof that the interest loss has been less than that;
AFRICOM expressly reserves the right to assert further reaching
compensation for demonstrable damages from arrears.
6.5 If the customer does not comply with its payment obligations, in
particular if a cheque or draft is not honoured or if the customer
suspends payments or if AFRICOM becomes aware of other circumstances
calling the customer’s creditworthiness into question to an extent
relevant for the commercial relationship, then AFRICOM shall be entitled
to invoice the entire remaining debt including in cases where AFRICOM has
accepted cheques or drafts. AFRICOM shall in such cases also be entitled
to demand prepayment or collateralisation.
6.6 The customer shall only be entitled to setoff, retention or reduction,
even where defects or counter-claims are asserted, if the counter-claims
have been adjudicated without the possibility of appeal or are uncontested.
The exercise of any right of retention shall only be allowed if the
counter-claim derives from the same legal relationship.
7. Complaints
about defects, warranty, damage compensation, statute of limitations
7.1 Should technical infosheets or AFRICOM’s installation instructions
not be followed or should modifications have been made through customers
staff, then any liability shall lapse.
7.2 The customer shall be obligated to immediately inform AFRICOM in
writing of any obvious defects, however to do so at the latest within two
weeks of receipt of the object. In doing so, to identify the defect
precisely. In case of violation of these regulations the assertion of the
warranty claim shall be expressly barred.
7.3 In the case of justified complaints of defects AFRICOM may at its
option render subsequent performance by means of improvement or may supply
a replacement.
7.4 Should subsequent performance fail after the customer has set an
appropriate second deadline, then the customer may demand reduction of
price. In case of only minor non-contractual performance, in particular in
case of only minor defects, then the customer shall however not be
entitled to cancel the contract.
7.5 Should the customer choose cancellation of the contract due to any
legal or physical defect after subsequent performance has failed, then the
customer shall not be entitled to any damage compensation claim due to the
defect.
7.6 Determinative of the contractual nature of standards and accessories
shall, in the absence of any other agreement, only be AFRICOM’s offer
text. Public utterances, sales talk or advertising shall by contrast not
constitute any contractual description of the goods’ nature.
7.7 If planning recognisable from the order contains customer
specifications which AFRICOM recognises as being of critical technical
importance for construction or as being unfeasible, then AFRICOM shall so
inform the customer. The customer shall in that case be obligated to check
AFRICOM’s objections on its own responsibility. AFRICOM shall not assume
any commitments or liabilities whatsoever in regard to the suitability of
any modification proposals for the customer’s intended use.
8. Other
limitations on and barring of liability
8.1 AFRICOM shall not be liable for slightly negligent violation of
unessential contractual obligations.
8.2 In case of other slight negligent violation of obligations AFRICOM’s
liability shall be limited to the average damage predictably and typically
inherent in the contract in view of the nature of the goods. This shall
also apply to slight negligent violation of obligations of AFRICOM’s
legal representatives or its agents.
9.
Reservation of title
9.1 AFRICOM shall retain title to all parts supplied until all claims
have been completely paid, including all indirect claims on the customer
stemming from the commercial relationship with AFRICOM with the inclusion
of claims incurred in the future. In the case of amortisation of the
purchase sum by way of cheque or draft AFRICOM’s retained title does not
lapse when the customer’s cheque is honoured but only when the last
refinancing instrument has been honoured. Processing or conversion of the
items supplied by the customer shall be deemed to occur for AFRICOM’s
account.
9.2 The customer shall be entitled to resell items to which AFRICOM has
retained title in the framework of the customer’s normal course of
business. The customer hereby cedes to AFRICOM subject to suspensive
condition to the date of their incurrence all claims gained by the
customer on its user or third parties. This shall apply without regard to
whether or not the goods with retained title are resold with or without
processing or conversion. Pending revocation by AFRICOM, the customer
shall remain authorised to collect claims transferred to. AFRICOM shall
obligate itself not to collect on the claims as long as the customer
complies properly with its payment obligations. The customer shall
otherwise not be entitled to pawn items supplied with retained title, or
to pledge them as collateral or to dispose of them in any other way. The
customer shall immediately inform AFRICOM of any seizure by third parties,
particularly of any lien.
9.3 Any action in violation of the contract by the customer, in particular
in case of payment arrears or violation of obligations under Paragraphs 1
and 2 above shall entitle AFRICOM to cancel the contract and to demand
return of the goods without prejudice to additional statutory rights based
on the customer’s violation of obligations.
10. Data
protection
Handling of the commercial relationship is supported by a data pro
cessing facility. Accordingly, customer data (address, products supplied,
quantities supplied, prices, payments, cancellations, etc) are recorded on
file and stored up through the end of the commercial relationship. The
customer is hereby informed in advance of such storage. The legal basis is
this is: Arts 27 ff, 33 Federal Data Protection Act (BDSG).
11. Venue of
performance and jurisdiction
Venue of performance and jurisdiction for all disputes arising
directly or indirectly from the contractual relationship, including
protesting of drafts, shall be the court having jurisdiction for Tübingen
/ Germany. AFRICOM reserves the right, at its own option, of suing the
customer in the latter’s general venue of jurisdiction.
12. Customers
with registered offices outside of the
Federal
Republic of
Germany
Applicable to business with customers with registered offices outside
of the Federal Republic of Germany shall be the United Nations Convention
on the Internal Sale of Goods (UN commercial law) where not amended or
supplemented by the following clauses. Third party purchase terms shall
not apply.
12.1 AFRICOM’s offers are binding unless they have expressly been
designated as subject to change.
12.2 Title of contractual goods shall only pass to the customer after they
have been fully paid.
12.3 Unless otherwise agreed, payments shall be made in Euro.
Should the customer not pay when due, then the customer shall pay interest
in the amount of 8% above the current base lending rate of the European
Central Bank.
12.4 The goods supplied must be examined immediately. Any complaint that
the goods are contrary to the contract must be raised immediately
12.5 If the goods are not in conformity with the contract, then AFRICOM
shall notwithstanding Art 46 of the Convention be entitled to provide
replacement in lieu of improvement. In that case, the customer shall make
the non-contractual goods available to AFRICOM at the latter’s expense.
12.6 Damage compensation due to the non-contractual nature of goods shall
only be paid by AFRICOM if AFRICOM is culpable in regard to such breach of
the contract. The damage compensation claim shall be limited to the amount
of Euro
3,000.
12.7 The venue of jurisdiction shall be the location of AFRICOM’s
registered office, but AFRICOM shall be entitled to sue the customer in
the latter’s venue of jurisdiction as well.
Alternations reserved.
AFRICOM
Technology Transfer D-72145 Hirrlingen e-mail: afrikom(et)aol.com
vers. 01.2009
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