Terms of service

Notice: These GTCs were translated with the help of an AI. The respective German version is legally valid.

1 // GENERAL TERMS AND CONDITIONS

§ 1 Scope

(1) These General Terms and Conditions (hereinafter referred to as "Terms") apply to all business relationships of NIKITA Home Living GmbH, Gottorpstraße 8, 26122 Oldenburg, registered at the Local Court of Oldenburg (Oldb.) under HRB 223045, represented by the managing director: Stephan Sander, VAT ID: DE459365798, telephone number: +49 441 99839040, email: info@nhl-group.com, and you as our customer. These Terms apply only if you are a business entity (§ 14 BGB), a legal entity under public law, or a special fund under public law.

(2) They also apply to future business relationships without the need for further notification. In case you're applying conflicting or supplementary terms and conditions, their validity is hereby rejected; they will only become part of the contract if we have expressly agreed to them.

(3) The german version of the Terms valid at the time of contract conclusion is decisive.

 

§ 2 Conclusion of Contract

(1) The presentation and promotion of items do not constitute a binding offer on our part to conclude a purchase contract. Instead, our offers are non-binding and subject to change. This also applies if we provide you with catalogs, product descriptions, or other documents – including in electronic form.

(2) Your order of the item for purchase is considered a binding contract offer. Unless the order indicates otherwise, the order is deemed accepted when we have confirmed the order in writing, or at the latest, when the purchased item is handed over.

(3) The contract language is German.

(4) Oral collateral agreements or assurances made by our employees or vicarious agents that go beyond the written contract are only effective if confirmed in writing, given the absence of authority of these individuals.

 

§ 3 Delivery & Shipping Costs

(1) Unless otherwise agreed, delivery shall be FOB Qui Nhon, Ho Chi Minh City, Danang (named port of shipment) within the meaning of Incoterms® 2010.

(2) We are entitled to make partial deliveries, provided this is reasonable for you.

(3) The delivery period shall be agreed individually or specified by us upon acceptance of the order.

(4) We are entitled to specify a delivery date within the delivery period.

(5) If the last day of the delivery period falls on a Sunday or a nationally recognized public holiday at the place of delivery, the next working day shall replace such a day.

(6) If, for reasons beyond our control, we cannot meet binding delivery deadlines (unavailability of service), we will promptly inform you and simultaneously provide the estimated new delivery deadline. If the service is still unavailable within the new delivery deadline, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by you will be promptly refunded. Non-availability of service in this sense includes, in particular, untimely non-delivery by our supplier, if we have concluded a congruent covering transaction, neither we nor our supplier are at fault, or we are not obligated to procure in the individual case.

(7) To the extent that we are obligated to obtain the necessary permits, approvals, licenses, or consents for the export of the purchased item, we are entitled to withdraw, in whole or in part, from the purchase contract if the required export licenses, approvals, licenses, or consents are not granted by the authorities.

 

§ 4 Prices & Terms of Payment

(1) Unless otherwise agreed in individual cases, our current prices at the time of contract conclusion apply, namely FOB, plus statutory value-added tax. The prices are quoted in USD.

(2) Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

(3) The purchase price is due upon delivery of the copies of the required shipment papers and must be paid within 14 days. However, we are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest upon acceptance of the order.

(4) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by your inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB).

 

§ 5 Offset and Right of Retention

(1) You are not authorized to offset against our claims unless your counterclaims are legally established or undisputed. You are also entitled to offset against our claims if you assert complaints of defects or counterclaims arising from the same purchase contract.

(2) As a buyer, you may only exercise a right of retention if your counterclaim arises from the same purchase contract.

 

§ 6 Retention of Title

(1) The purchased item remains our property until full payment is made.

(2) We reserve ownership of the purchased item until full settlement of all claims arising from an ongoing business relationship. You may resell the goods subject to retention of title in the ordinary course of business; you assign to us in advance all claims arising from this resale - irrespective of any combination or mixing of the goods subject to retention of title with a new item - in the amount of the invoice amount, and we accept this assignment. You remain authorized to collect the claims, but we may also collect the claims ourselves if you fail to meet your payment obligations.

 

§ 7 Warranty and Guarantees

(1) We are liable for material or legal defects in delivered items in accordance with applicable statutory provisions, especially §§ 434 et seq. BGB. The limitation period for statutory defect claims is one year and begins with the delivery of the purchased item.

(2) The risk of accidental sinking and accidental deterioration shall pass to you as soon as we transfer the purchased item on board the ship named by you at the loading point named by you in the named shipping detention or procure the purchased item delivered in this way.

(3) The duty to examine and give notice of defects as regulated in § 377 HGB applies to merchants. The assertion of your warranty rights requires that you have properly fulfilled your duty to examine and give notice of defects according to § 377 HGB. If you fail to provide the notification as regulated there, the purchased item is deemed approved, unless it is a defect that was not recognizable during the examination. This does not apply if we have fraudulently concealed a defect.

(4) We may choose between rectifying the defect or delivering a defect-free item for subsequent performance. Our right to refuse subsequent performance under the statutory conditions remains unaffected.

(5) Any seller   warranties provided by us for specific items or manufacturer guarantees granted by the manufacturers of certain items apply in addition to claims for material or legal defects within the meaning of paragraph (1). Details of the scope of such guarantees can be found in the warranty conditions that may be enclosed with the items.

(6) We are entitled to make the subsequent performance owed dependent on you paying the purchase price due. However, you are entitled to withhold a reasonable part of the purchase price in proportion to the defect.

(7) We bear or reimburse the necessary expenses for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs, as well as any dismantling and installation costs, in accordance with statutory regulations if an actual defect exists. Otherwise, we may demand reimbursement from you for costs incurred as a result of the unjustified demand for defect rectification (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to you.

(8) Claims for damages or reimbursement of futile expenses, even in the case of defects, only exist in accordance with § 8 and are otherwise excluded.

 

§ 8 Liability

(1) Our liability for damages, regardless of the legal basis, particularly arising from impossibility, delay, defective or incorrect performance, breach of contract, breach of duties in contract negotiations, and tort, is limited as far as culpability is concerned, in accordance with § 8.

(2) We are not liable in case of simple negligence of our organs, legal representatives, employees, or other vicarious agents, unless it involves a breach of material contractual obligations. Material contractual obligations are those obligations to deliver the purchased item on time and free from defects, its freedom defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as advisory, protective, and custodial duties intended to enable your contract-compliant use of the purchased item or to protect the life or limb of your personnel or your property from substantial harm.

(3) Insofar as, according to § 8 para. (2), we are fundamentally liable for damages, this liability is limited to damages that we foresaw as a possible consequence of a contract violation at the time of contract conclusion or that we should have foreseen using ordinary care. Consequential and indirect damages resulting from defects in the purchased item are only compensable to the extent that such damages are typically expected in the normal use of the purchased item.

(4) In the case of liability for simple negligence, our obligation to compensate for property damage and any resulting further financial losses is limited to five times the one-off purchase price, even in the event of a breach of material contractual obligations.

(5) The foregoing exclusions and limitations of liability apply to the same extent in favor of our organs, legal representatives, employees, and other vicarious agents.

(6) Insofar as we provide technical information or act in an advisory capacity, and such information or advice does not form part of the contractually agreed scope of services, it is provided free of charge and with the exclusion of any liability.

(7) The limitations of this § 8 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body, or health, or under the Product Liability Act. The same applies if we have reached an agreement with you regarding the nature of the item.

 

§ 9 Final Provisions

(1) The laws of the Federal Republic of Germany apply, excluding the UN Convention on Contracts for the International Sale of Goods. The statutory provisions on the restricting of the choice of law and the applicability of mandatory regulations remain unaffected.

(2) If you are a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, and your place of business is in Germany at the time of the order, our exclusive place of jurisdiction is our registered office, Bremen. In all other respects, the applicable statutory provisions apply to local and international jurisdiction.

 

As of: May 2020