terms and conditions

(1)    These General Terms and Conditions (hereinafter referred to as GTC) apply exclusively to all transactions of ONI Temperiertechnik Rhytemper GmbH, hereinafter referred to as ONI; ONI does not recognise any terms and conditions of the contractual partner that conflict with or deviate from these GTC, unless ONI has expressly agreed to their validity in writing. They shall not apply beyond this. These GTC shall also apply if ONI executes the contract with the contractual partner without reservation, despite being aware of terms and conditions of the contractual partner that conflict with or deviate from these GTC.

(2)    All agreements made between ONI and the customer for the purpose of executing this contract shall be set out in writing in the contract/order confirmation, incorporating these GTC.

(3)    These General Terms and Conditions apply only to companies within the meaning of § 14 BGB (German Civil Code), legal entities and public bodies, § 310 (1) BGB.

(4)    These General Terms and Conditions also apply to all future transactions with the contractual partner.

(5)    For the sake of simplicity and to maintain the readability of the General Terms and Conditions, the contractual partner is always referred to as the buyer. These General Terms and Conditions apply to all contracts concluded by ONI, regardless of whether they are purchase, work, service or other contracts or mixed-type contracts.

(1)    Offers made by ONI are always subject to acceptance for four weeks. ONI expressly reserves the right to prior sale of the types and quantities that ONI indicates as being in stock.

(2)    Individual agreements made with the contractual partner in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these General Terms and Conditions. A written contract or written confirmation from ONI shall be decisive for the content of such agreements.

(3)    ONI reserves ownership rights and copyrights to illustrations, drawings, calculations and other documents; they are to be used exclusively for production based on ONI's delivery. After completion of the order, they must be returned to ONI without request.

(4)    ONI reserves the right to make minor deviations in design, execution and performance due to changes in legal or official requirements and/or regulations or due to technical advances, which do not adversely affect the function of the item, compared to the information provided in ONI's catalogues, brochures and/or on the Internet.

(1)    Unless otherwise stated in the order confirmation, ONI's prices are ‘ex works’ or ex distribution warehouse (EXW Großröhrsdorf) plus packaging, shipping, assembly, commissioning and other ancillary costs (e.g. customs duties); These will be invoiced separately to the contractual partner.

(2)    Statutory value added tax is not included in ONI's prices; it will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.

(3)    ONI reserves the right to make delivery only against advance payment or cash on delivery.

(4)    Unless otherwise stated in the order confirmation, the purchase price is due for payment within fourteen calendar days net (without deduction). After expiry of this period, the customer shall be in default of payment without the need for a reminder. This shall also apply in the case of separately invoiced partial deliveries. In the event of default of payment, the statutory provisions shall apply. We reserve the right to claim further damages.

(5) Cheques and/or bills of exchange shall only be accepted on account of performance; the costs of discounting and collection shall be borne by the contracting party. In the case of bills of exchange, the contracting party shall bear the costs of protest and bill of exchange proceedings. Any obligation on the part of ONI to make advance payments shall not affect this cost allocation rule.

(6)    The contractual partner shall only be entitled to set-off rights if its counterclaims have been legally established or expressly recognised by ONI. Furthermore, it shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.

(7)    ONI is entitled to charge a minimum quantity surcharge of EUR 30 for orders with a net order value excluding VAT of EUR 100 or less. This minimum quantity surcharge is charged as a flat-rate expense and processing fee. If the order value including the small quantity surcharge exceeds EUR 100 plus VAT, the surcharge remains unaffected. This small quantity surcharge may also be charged if the value of individual call-offs within framework orders does not exceed the order value of EUR 100 plus VAT. The total value of the blanket order is not relevant in this case.

(1)    Delivery dates and deadlines are only binding if expressly agreed; otherwise, they are non-binding and ONI is not obliged to adhere to them. If a specific delivery period and/or a specific delivery date has been expressly agreed, the start of the period and/or the binding nature of the date shall be subject to the simultaneous agreement of all technical and commercial issues. In the case of delivery of a system with subsequent installation, the agreement of a completion date also requires complete information about the customer's system in which the ONI system is to be installed. Only if this information is available to the customer at the latest when ONI notifies the customer of readiness for delivery can the completion date be bindingly adhered to.

(2)     Compliance with delivery dates and delivery periods requires the timely receipt of all documents to be supplied by the customer for the execution of the order and the timely fulfilment of the customer's contractual obligations, in particular compliance with the agreed terms of payment. If these conditions are not met on time, or if the customer initiates changes or deviations to the ordered goods after conclusion of the contract, the delivery dates or delivery periods shall be extended appropriately, but at least by the time of the delay in cooperation and/or payment by the customer.

(3)     If ONI is unable to meet binding delivery deadlines for reasons beyond its control (non-availability of the service), ONI shall inform the buyer of this immediately and at the same time notify them of the expected, non-binding new delivery deadline. If the service is also unavailable within the new delivery period, ONI shall be entitled to withdraw from the contract in whole or in part; ONI shall immediately reimburse the purchaser for any consideration already paid which is no longer offset by any service provided by ONI as a result of the withdrawal. In this context, non-availability of the service shall include, in particular, failure or delay in delivery by ONI's suppliers, if ONI has concluded a congruent covering transaction, neither ONI nor ONI's supplier is at fault, or ONI is not obliged to procure the goods in individual cases.

(4)     The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the purchaser is required, for which the purchaser is responsible. If ONI is in default of delivery, the purchaser may demand lump-sum compensation for the damage caused by the delay. The lump sum compensation shall amount to 0.25% of the net price (delivery value) for each full calendar week of delay, but shall not exceed a total of 2.5% of the delivery value of the goods delivered late. ONI reserves the right to prove that the buyer has not incurred any damage or has incurred only significantly less damage than the above lump sum. ONI generally rejects the agreement of a contractual penalty. ONI will not accept any individually agreed contractual penalty for delay.

(5)     Claims for damages by the buyer due to delayed performance and claims for damages in lieu of performance that exceed the limits specified in clause 4 are excluded in all cases of delayed delivery after expiry of a delivery deadline set by ONI. This shall not apply in cases of mandatory liability due to intent, gross negligence or injury to life, limb or health. The statutory provisions on the burden of proof shall remain unaffected. The buyer may only withdraw from the contract within the framework of the statutory provisions if there is a significant delay in delivery and ONI is responsible for this.

(6)     ONI is entitled to make partial deliveries, provided that these are reasonable for the customer. These shall always be regarded as separate transactions. ONI is entitled to invoice partial deliveries separately.

(1)    Delivery shall be ex works, which shall also be the place of performance. At the request and expense of the purchaser, the goods shall be shipped to another destination (sale by delivery). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular the transport company, shipping route and packaging) ourselves. If the installation of the system by ONI has been agreed, the place of performance for the delivery shall be the ONI factory and for the installation of the system the agreed system location.

(2)    The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon handover to the buyer. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. The foregoing shall also apply in the case of partial deliveries, but not if ONI carries out the transport itself with its own personnel. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to any agreed acceptance.

The handover or acceptance of the goods shall be deemed to have taken place if the buyer is in default of acceptance and/or uses the goods without complaint. Commencement of use shall be deemed to be the start of intended operation, whereby a trial operation lasting longer than one calendar day with at least one operating hour shall be sufficient for commencement of use.

(3) If the buyer is in default of acceptance, fails to cooperate or delays ONI's performance for other reasons for which the buyer is responsible, ONI shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this, ONI shall charge a flat-rate compensation of 0.25% of the net price (delivery value) for each completed calendar week of delay, but no more than 2.5% of the delivery value of the goods accepted late, starting from the expiry of the acceptance period.

Proof of higher damages and ONI's legal claims (in particular compensation for additional expenses, reasonable compensation, termination, withdrawal) remain unaffected; the flat rate shall be offset against further monetary claims. The buyer is entitled to prove that ONI has incurred no damage at all or only damage lower than the above flat rate.

(1)    If the buyer is a merchant within the meaning of the German Commercial Code (HGB), the buyer's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (Sections 377, 381 HGB). If a defect becomes apparent during the inspection or later, ONI must be notified of this in writing without delay. The notification shall be deemed to have been made without delay if it is made within five working days, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the buyer must notify us in writing of any obvious defects within two working days of delivery, whereby timely dispatch of the notification is sufficient to meet the deadline. If the buyer fails to carry out the proper inspection and/or notification of defects, our liability for the unreported defect is excluded.

(2)    ONI accepts no liability for defects in wear parts, valves or for the suitability of the system for the buyer's intended use.

(3)    Liability for defects and damage is also excluded if the buyer operates the purchased item contrary to the technical specifications, the operating instructions or recognised rules of technology.

(4)    The warranty shall expire as soon as the purchaser manipulates the system in a manner that is not expressly permitted under the specific contract or attempts repairs that are not carried out properly and professionally and have not been expressly approved in writing by ONI prior to the start of the repair attempt.

(5)    If the purchased item is defective, ONI shall be entitled, at its own discretion, to remedy the defect or to deliver a new item free of defects. ONI's right to refuse subsequent performance under the statutory conditions remains unaffected.

(6)    ONI is entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.

(7)    The buyer shall give ONI the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to ONI in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if ONI was not originally obliged to install it.

(8)    ONI shall only bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs), if a defect actually exists. Costs incurred in the course of subsequent performance as a result of the purchased item being taken to a location other than the contractually agreed place of delivery shall be borne by the customer. These additional costs shall be paid in advance by the customer. If a request by the buyer to remedy a defect proves to be unjustified, ONI may demand reimbursement of the costs incurred from the buyer.

(9)    If the subsequent performance has failed twice or if a deadline set by the buyer for subsequent performance has expired without success or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. The above shall only apply in the case of significant defects affecting the functionality of the delivered system. This does not include defects in wear parts and valves.

(10)    Claims for damages by the buyer due to a material defect or defect of title are excluded. This does not apply in the event of fraudulent concealment of a defect, non-compliance with a quality guarantee, injury to life, limb, health or freedom, or intentional or grossly negligent breach of duty on our part. Further claims by the purchaser due to a material defect or claims other than those regulated in these General Terms and Conditions are excluded. The statutory rules on the burden of proof remain unaffected.
(11)    The buyer has the right to remedy the defect himself and to demand reimbursement of the necessary expenses from ONI if he has previously set ONI a reasonable deadline for remedying the defect. The notification of defects must be made at least in text form. The right to remedy the defect oneself does not apply if ONI would be entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.

(12)    Claims for defects shall become time-barred 12 months after delivery of the goods supplied by ONI to the buyer. The consent of ONI must be obtained before any goods are returned. This period shall not apply if the law prescribes mandatory longer periods in accordance with Sections 438 (1) No. 2 (buildings and items for buildings), 479 (1) (right of recourse) and 634a (1) No. 2 (construction defects) of the German Civil Code (BGB).

(13)    The purchaser shall only have recourse claims against ONI insofar as the purchaser has not entered into any agreements with its customer that go beyond the mandatory statutory claims for defects.

(1)    Claims for damages by the Buyer, irrespective of the legal grounds, in particular due to breach of obligations arising from the contractual relationship or tort, are excluded, unless the Buyer’s claims for damages are explicitly regulated in these General Terms and Conditions.

(2)    The exclusion of claims for damages by the Buyer does not apply to cases of mandatory liability, e.g., under the Product Liability Act, in cases of intent or gross negligence, for injury to life, body, or health, or for the breach of essential contractual obligations. Claims for damages for the breach of essential contractual obligations are, however, limited to the typical, foreseeable damage, unless intent or gross negligence exists, or liability arises due to injury to life, body, or health, or due to the breach of essential contractual obligations. The statutory rules on the burden of proof remain unaffected.

(3)    To the extent that the Buyer is entitled to claims for damages, these claims become time-barred upon the expiry of the limitation period applicable under §6 No. 9. The same applies to the Buyer’s claims in connection with measures to avert damage (e.g., recall actions). Claims for damages under the Product Liability Act are subject to the statutory limitation provisions.

(1)    If the delivery becomes impossible, the Buyer is entitled to claim damages, unless ONI is not responsible for the impossibility. The Buyer’s claim for damages is limited to 5% of the value of the part of the delivery that cannot be put into operation due to the impossibility. This limitation does not apply in cases of intent, gross negligence, or liability for injury to life, body, or health. The Buyer’s right to withdraw from the contract remains unaffected, as do the statutory rules on the burden of proof.

(2)    If unforeseen events beyond the control of the contractual parties (force majeure) or the untimely or improper delivery to ONI by its suppliers significantly alter the economic value or the content of the delivery, or have a significant impact on ONI’s operations, the contract shall be adjusted appropriately in accordance with good faith, customary business practices, and trade usage. To the extent economically reasonable, ONI shall have the right to withdraw from the contract. Should ONI intend to exercise this right, ONI shall notify the Supplier immediately upon becoming aware of the occurrence and scope of the aforementioned event, even if an extension of the delivery time was initially agreed with the Supplier.

(1)    Until full payment of all present and future claims of ONI arising from the purchase contract and an ongoing business relationship (secured claims), ONI retains ownership of the goods sold.

(2)    The goods subject to retention of title may neither be pledged to third parties nor transferred as security before full payment of the secured claims. The buyer must notify ONI immediately in writing if and to the extent that third parties access goods belonging to ONI.

(3)    In the event of a breach of contract by the buyer, in particular non-payment of the due purchase price, ONI is entitled, in accordance with statutory provisions, to withdraw from the contract and to reclaim the goods on the basis of the retention of title and withdrawal. If the buyer does not pay the due purchase price, ONI may assert these rights only if it has previously set a reasonable period for payment unsuccessfully or if such a period is dispensable under statutory provisions.

(4)    The buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply additionally:

(a)   The retention of title extends to the products resulting from processing, mixing, or combining our goods, to their full value, with ONI being regarded as the manufacturer. If, during processing, mixing, or combining with goods of third parties, their ownership rights remain, ONI acquires co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.

(b)   The buyer hereby assigns to ONI all claims arising from the resale of the goods or the product to third parties, either in full or to the extent of ONI’s potential co-ownership according to the preceding paragraph, as security. ONI accepts the assignment. The obligations of the buyer specified in paragraph (2) also apply with regard to the assigned claims.

(c)   In addition to ONI, the buyer is authorized to collect the claim. ONI undertakes not to collect the claim as long as the buyer meets its payment obligations to ONI, is not in default of payment, no application for the opening of insolvency proceedings has been filed, and no other defect of its ability to perform exists. If this is the case, ONI may require the buyer to disclose the assigned claims and their debtors to ONI, provide all information necessary for collection, hand over the related documents, and notify the debtors (third parties) of the assignment at least in writing. A defect in performance capacity exists if...

(d)     If the realizable value of the securities exceeds ONI’s claim by more than 10%, ONI shall release securities of its choice in writing at the buyer’s request. The release shall be limited to the extent that a value equivalent to at least 110% of the secured claim is retained as security. The same applies if the estimated value of the secured goods amounts to or exceeds 150% of the claim to be secured. Even in this case, the release shall only be made to the extent that a value of at least 110% of the secured claim is retained.

(1)    Depending on the subject-matter jurisdiction, the courts of Kamenz (Local Court) or Görlitz (Regional Court, Bautzen branches) shall have jurisdiction. However, ONI is entitled to also sue the customer at its registered office.

(2)    The law of the Federal Republic of Germany shall apply; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

(3)    Unless otherwise specified in the order confirmation, Großröhrsdorf shall be the place of performance for all mutual rights and obligations.

(4)    Should any of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions. In place of the invalid clause, the parties agree to establish a legally valid provision that comes closest to the economic purpose pursued by the invalid clause.

(5)    Gaps in the contract shall be filled by supplementary interpretation of the contract. If this is not possible, statutory law shall apply in place of the gap.