1. Applicability of the Terms and Conditions
1.1 Applicability of the Terms and Conditions for current contracts
The following Terms and Conditions of nivia Rosenberger Hochfrequenztechnik GmbH & Co KG (hereinafter: nivia) form the basis of contracts concluded, including via the internet, with consumers on the one hand and entrepreneurs on the other (hereinafter each: buyer). No agreement to the validity of the buyer's conflicting terms and conditions is declared by means of these Terms and Conditions.
1.2 Applicability of the Terms and Conditions for future contracts
Towards entrepreneurs, these Terms and Conditions also apply to future business relationships without this being separately indicated.
2. FORMATION OF CONTRACT
2.1 Advertising statements by nivia are not contractual offers; immediate payment chosen by the buyer does not lead to the conclusion of a contract
Advertising statements by nivia are legally not to be classified as binding contractual offers. The use of permitted instant payment methods by the buyer does not yet lead to the conclusion of a contract, despite payment of the purchase price or fee.
2.2 Online conclusion of contract
By clicking the button "Order with obligation to pay" or "Buy", the buyer submits a binding contractual offer. Before submitting the offer, the buyer has the opportunity to check and, if necessary, change the data entered. After submitting the offer, an email is sent to the buyer confirming receipt of the offer and stating its details. The purchase contract is concluded by dispatch of the goods within no more than 14 days of receipt of the offer. If the unlikely event occurs that the goods arrive after the stated period (at most 14 days), the dispatch is legally assessed as a new offer; the buyer is free to accept or reject this new offer.
2.3 Other forms of contract conclusion
If the buyer transmits their offer by email, fax, post, telephone or in any other way (for online orders, section 2.2 applies), the contract is concluded by dispatch of the goods within no more than 14 days of receipt of the offer; otherwise section 2.2 applies accordingly.
2.4 Order history
The buyer can view their past orders in the "Customer area" of nivia under "My Account -> My Orders".
3. PRICES, Payment methods, Due date and Transfer of risk
3.1 Applicable price, payment methods, due date of the purchase price
The prices stated in the webshop on the day of the order, including shipping costs and taxes (final price), shall apply in each case. The amount of VAT is determined by the laws of the state of the delivery address. When a new version of the webshop appears, all earlier price information for new orders loses its validity. Payment can be made by PayPal, credit card (Visa, Mastercard, American Express) and bank transfer, including in the context of advance payment, and in individual cases approved by nivia also by cash on delivery. The payment claims arising from the concluded contract are immediately due for payment.
3.2 Transfer of risk
Insofar as the buyer is a consumer, the risk of accidental loss and accidental deterioration of the sold item during shipment does not pass to the buyer until the goods are handed over to the buyer, regardless of whether the shipment is insured or uninsured. This is different if the buyer has commissioned the carrier without being named by nivia beforehand. If the buyer is an entrepreneur, the risk of accidental loss passes to them as soon as the shipment has been handed over to the carrier and has left nivia's warehouse for the purpose of shipment.
4. DELIVERY
Delivery is regularly made within 3–5 days for standard delivery within Germany. The start of the delivery period stated by nivia is subject to the timely and proper fulfilment of the buyer's obligations. This applies in particular to the correct specification of the delivery address. If the deadline falls on a Saturday, Sunday or public holiday at the place of delivery, the deadline ends on the next working day.
5. SET-OFF, RIGHT OF RETENTION, RETENTION OF TITLE
5.1 Set-off
The buyer is only entitled to set off if their counterclaims have been finally determined by a court of law or are undisputed.
5.2 Right of retention
The buyer can only exercise a right of retention insofar as it concerns undisputed or legally established claims from the same contractual relationship.
5.3 Retention of title
The goods remain the property of nivia until the purchase price has been paid in full.
6. WARRANTY TOWARDS CONSUMERS AS BUYERS
The statutory provisions apply. Insofar as claims for damages are made within the scope of warranty claims, the provision of §8 applies with regard to fault.
7. Warranty towards ENTREPRENEURS AS BUYERS
If the goods are defective and have not yet been resold, nivia is entitled, notwithstanding the provision of §377(2) HGB (fiction of approval of defective goods if the defect complaint is omitted, unless the defect was not recognisable upon inspection) and notwithstanding the provision of §377(3) HGB (fiction of approval of the goods if the complaint was not made without undue delay after the defect not discovered upon inspection later appeared), at its own discretion, to remedy the defect or deliver a defect-free item.
The entrepreneur as buyer does not have a right of reduction. This also applies if the goods are resold after discovery of the defect, unless subsequent performance has failed, was not carried out on time, was refused, or was unreasonable.
If the goods are defective and have been resold without any of the conditions leading to exclusion of reduction pursuant to para. 1 or para. 2 being present, the buyer has the right to reduction.
In the case of replacement delivery, nivia's corresponding obligation is conditional upon the buyer returning the goods to be replaced.
The buyer also has the option to claim damages or reimbursement of futile expenditure pursuant to §437 no. 3 BGB.
Insofar as claims for damages are made within the scope of warranty claims, the following provision of §8 applies with regard to fault.
No warranty claims arise if the defect was caused by improper use or excessive stress.
8. Liability
Insofar as fault is a prerequisite under statute for the obligation to pay compensation in respect of material and financial damage, nivia is not liable in principle for damage in cases of simple negligence, unless this restricts essential rights and obligations arising from the nature of the contract to such an extent that the achievement of the contractual purpose is jeopardised.
nivia's liability for the amount of damage in cases of slight negligence is limited to contractually typical, foreseeable damage.
The restrictions in the preceding paragraphs 1 and 2 do not affect liability for injury to life, body and health and in the case of product liability.
The disclaimer of liability for slight negligence existing to this extent also applies to actions by the statutory representatives, employees or vicarious agents of nivia.
9. Impossibility
In the event of impossibility, statutory law applies. In addition, the following is agreed:
In the unlikely event of unforeseeable non-delivery after a confirmed contract conclusion, nivia will immediately inform the buyer of the non-deliverability of the goods together with an indication of when delivery is expected to take place. The buyer then decides whether to wait for a later delivery or to withdraw from the contract. In the latter case, the buyer will receive their payments back.
10. Right of withdrawal
The consumer as buyer has a right of withdrawal in the case of contracts concluded outside business premises (§312b BGB) and in the case of distance contracts (§312c BGB), unless the goods to be delivered are not prefabricated but manufactured according to customer specifications, such that nivia would suffer significant disadvantages as a consequence of the custom manufacture in the event of the ordered goods being returned. The details of the right of withdrawal are set out in the withdrawal notice communicated by nivia in accordance with the law, together with the withdrawal form.
11. Consumer dispute resolution
nivia is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.
12. CHOICE OF LAW, PLACE OF PERFORMANCE, JURISDICTION
12.1 Choice of law
German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods. For consumers as buyers, this choice of law applies only insofar as the protection provided by mandatory provisions of the law of the country of the consumer's habitual residence is not withdrawn (principle of favourability).
12.2 Place of performance
The place of performance for all services arising from business relationships with nivia is the registered office of nivia, provided that the buyer is not a consumer but a merchant, a legal entity under public law or a special fund under public law. The same applies if the buyer has no general place of jurisdiction in Germany or the EU, or if the domicile or habitual residence is not known at the time the action is filed. The authority to also invoke the court at another statutory place of jurisdiction is not affected by this.
13. Final provisions
Should any provisions of this contract be invalid or should this contract contain gaps, the validity of the contract shall not be affected thereby. An invalid provision shall be replaced by statutory law. In the case of gaps that cannot be filled by statute, the contract shall be interpreted supplementarily in accordance with what the parties, with an appropriate weighing of their interests in good faith as honest contracting parties, would have agreed had the unregulated case been considered.