I. Scope

All of profine's deliveries, services and offers shall be made
exclusively on the basis of these General Terms &
Conditions of Delivery. These General Terms & Conditions
of Delivery shall form part of all agreements entered into
between profine and its contractual partners (hereinafter also
referred to as "Purchaser") with regard to deliveries or
services offered by profine. They shall also apply to future
deliveries, services or offers to the Purchaser, even if not
being referred to explicitly.

1. Purchaser's general terms & conditions shall not apply
unless profine has explicitly agreed to their applicability in
writing. profine's General Terms & Conditions of Delivery
shall also apply if profine unconditionally effects deliveries to
the Purchaser even aware that the Purchaser's terms and
conditions conflict with or deviate from its own.

II. Conclusion of contract and delivery of products

1. All offers made by profine are subject to change without
notice and non-binding unless explicitly designated as
binding or specifying a fixed timeframe for acceptance. No
contract shall enter into force until profine has provided a
written or electronic order confirmation. The written or
electronic order confirmation shall determine the scope of
delivery. All ancillary agreements and amendments have to
be confirmed in writing or electronically by profine to be valid.

2. profine reserves the right to modify the design or shape of
the delivery items to be delivered unless (i) such
modifications do not go beyond what is usual in the trade and
are unacceptable to the Purchaser or (ii) profine and the
Purchaser have explicitly agreed on the binding character of
data provided by profine as regards the delivery items (e.g.
weight, dimensions, utility values, load capacity, tolerances,
technical data) or of depictions of the same (e.g. drawings,
illustrations). The afore-mentioned information from profine
relating to the delivery items to be delivered or services to be
provided – as well as respective depictions are neither
guaranteed nor do they constitute an agreement on assured
properties unless explicitly confirmed otherwise by profine in
writing or electronically. If no such written or electronic
confirmation is provided by profine, the afore-said
information merely constitutes a non-binding description or
qualification of the delivery items or services from which
deviations pursuant to the first sentence of this section II. 2
are admissible. If profine and the Purchaser have explicitly
agreed on the binding character of specific data, profine may
only make modifications to delivery items to be delivered or
services to be rendered if such modifications are required
under mandatory statutory provisions and are acceptable to
the Purchaser. If the modifications are unacceptable, the
Purchaser is entitled to withdraw from the contract.

3. profine retains title and copyright to all documents, drawings,
specifications, samples and other similar items which are
provided to the Purchaser. They may not be made available
to third parties without profine’s prior express written
consent.

 

 

III. Prices and payment

 

1. The prices apply for the scope of the delivery or services
specified in the order confirmation. Any additional or special
deliveries or services will be charged separately. Unless
explicitly agreed otherwise, the prices shall be in Euro and
FCA place of lading as designated in the order confirmation
(Incoterms, as amended from time to time), exclusive of
packaging and VAT. Customs duties, taxes, charges and
similar levies which profine is required to pay will be charged
separately.

2. Prices for raw materials (e.g. ethylene, naphtha) which
profine requires for the manufacturing of its products, are
highly volatile. profine, therefore, applies a material price
surcharge on its products.
Orders for which the parties have agreed that the time of
delivery shall be later than four months after conclusion of
the respective contract or orders which are executed later
than four months after conclusion of the respective contract
for reasons within the Purchaser’s responsibility, shall be
invoiced in accordance with profine’s price list effective on
the date of delivery, plus the afore-said material price
surcharge applicable on that date.

3. In case the raw material prices relevant for the products
ordered should increase substantially (i.e. by at least 10%)
after profine's submission of an offer or confirmation of an
order or conclusion of a framework agreement providing for
fixed prices, profine shall be entitled to increase the price by
a reasonable amount. Purchaser's interests shall be duly
taken into account in this process, particularly with regard to
possible commitments of the Purchaser relating to the
onward delivery of the delivery items at a fixed price. The
calculation of the price increase for the affected raw materials
shall be based on publicly available sources (e.g. ICIS,
Harrimann or KI newsletters). If so requested by the
Purchaser, profine shall disclose the raw materials utilized
for the manufacturing of its products and prove the price
increase occurred for said materials by the afore-mentioned
sources.
If relevant cost factors – such as costs of energy, wages,
transportation and insurance – should increase substantially
(i.e. by at least 10%) after profine's submission of an offer or
confirmation of an order or conclusion of a framework
agreement providing for fixed prices, profine shall be entitled
– applying the provision above – to increase the prices by a
reasonable amount mutatis mutandis. Purchaser's interests
shall be duly taken into account in this process, particularly
with regard to possible commitments of the Purchaser
relating to the onward delivery of the delivery items at a fixed
price.

4. All invoiced amounts shall be payable by direct debit without
any deductions unless otherwise agreed upon in writing. In
the latter case, the date on which the payment is credited to
profine's bank account is decisive for timely payment.

5. If the Purchaser does not effect payment by the due date, the
outstanding amounts shall be subject to interest of 5% p.a.
as of the due date; in the event of default of payment, the
Purchaser shall pay default interest at the rate of 9
percentage points above the prime lending rate 
(Basiszinssatz). profine reserves the right to prove that
higher damages have been incurred due to the default of
payment.

 

6. The Purchaser is only entitled to set off own claims if its
counterclaims have been judicially determined as nonappealable,
are undisputed or have been acknowledged by
profine. The Purchaser may only exercise a right of retention
if its counterclaim arises from the same contractual
relationship.

7. profine is entitled to insist on advance payment or the
rendering of sureties by the Purchaser for outstanding
deliveries if it becomes aware of circumstances which may
substantially impair the Purchaser's creditworthiness and, as
a result of which, at profine's due discretion, jeopardise
payment of the Purchaser's accounts payable at profine in
connection with relevant orders, including accounts payable
in respect of individual orders which are governed by the
same framework contract.

8. Unless explicitly agreed upon otherwise with the Purchaser,
all payments must be made in € (Euro) and exclusively to
profine.

9. The Purchaser shall confirm that the VAT identification
number (VAT ID) provided to profine during the order
process when creating a new customer is actively used by
the Purchaser. This VAT ID number shall be used for all
future orders of the Purchaser, unless the use is revoked or
the Purchaser expressly informs profine in text form in
individual cases of a different VAT ID number to be used for
that specific order.

10. For all orders under € 2.500,00 net profine charges an extra
order value surcharge of € 100,00 (inland) and
€ 150,00 (export), respectively.

IV. Delivery and delivery period

1. If profine explicitly warrants or has agreed on a fixed delivery
period or date the order confirmation shall govern the
applicable delivery periods. In any other cases all periods
and dates mentioned by profine have to be understood as
determining the date of delivery merely approximately. The
delivery period shall not commence until the Purchaser has
furnished all documents, permits and approvals to be
procured and until any agreed advance payments have been
received.
The delivery deadline is met if the delivery items were
handed over prior to its expiry to the Purchaser's carrier at
the place of lading as designated in the order confirmation.
profine shall be entitled to refuse to hand over the delivery
items to the carrier if the load cannot be secured pursuant to
the German VDI Guideline 2700 due to the condition of the
transport vehicle or if profine does not consider the transport
vehicle to be roadworthy pursuant to German Road Traffic
Licensing Regulations. If profine refuses to hand over the
delivery items to the carrier for the afore-mentioned reasons,
the provisions set forth in sections V.2 and V.3 shall apply
accordingly.

2. Partial deliveries shall be admissible to a reasonable extent
if such delivery can be used by the Purchaser for the
contractually agreed purpose, if the delivery of the remaining
delivery items is warranted and if the Purchaser will not incur
any additional costs or expenses as a result.

3. If a delivery is postponed at the Purchaser's request, profine
reserves the right to charge any additional costs incurred as
a result to the Purchaser.

 

4. The delivery of the delivery items to the Purchaser shall be
subject to profine itself being supplied properly and in due
time by its own suppliers unless profine has culpably caused
such non-delivery.

5. If profine is in default of delivery or unable to effect delivery
at all, the Purchaser shall be entitled to withdraw from the
contract in accordance with statutory provisions. Claims for
damages for default of delivery or impossibility of
performance shall only be due to the purchaser under the
provisions of section VIII of these General Terms &
Conditions of Delivery.

6. If deliveries are delayed due to force majeure, profine shall
have the right to extend the delivery period for the duration
of the event causing the delay plus a reasonable time for runup
or, if the event causing the delay is not merely transitional,
to cancel the contract due to the unperformed part of the
contract either in part or in full. The same shall apply in the
event of strikes, lock-outs, political unrest and unforeseen
circumstances such as interruptions of operations which
prevent profine from effecting timely delivery despite making
reasonable efforts to do so. This shall furthermore apply if
the afore-mentioned events affect a supplier of profine. An
obstacle for which profine is responsible shall not entitle
profine to cancel the contract. profine will inform the
Purchaser without undue delay in case such an event of
force majeure pursuant to this provision occurs. The
Purchaser may request profine to declare within a period of
six weeks whether it intends to cancel the contract due to the
non-performed part of the contract in part or full or whether it
will effect delivery within a reasonable additional period of
time. If profine does not respond to the Purchaser’s request
within the afore-mentioned timeframe, the Purchaser may
withdraw from the part of the contract which has not been
fulfilled yet.

V. Packaging, shipment, passing of the risk and
Purchaser's acceptance of the delivery items

1. a) Unless otherwise explicitly agreed upon, profine shall
choose the type of packaging at its sole discretion. If the
packaging is done in wooden cassettes, the ownership
thereof shall be transferred to the Purchaser upon delivery or
the wooden cassettes shall be taken back by profine free of
charge at the Purchaser´s request. Steel cassettes, in
contrast, are not part of the scope of delivery and shall
remain the property of profine. They shall be provided to the
Purchaser free of charge for a period of 30 days from the
date of delivery. After expiry of the aforementioned period,
profine shall be entitled to request the return of the steel
cassettes from the Purchaser at any time. In this case, the
Purchaser shall make the steel cassettes available for
collection at profine's request on the date specified by profine
for the collection of the cassettes.

b) While the steel cassettes remain with the Purchaser, the
Purchaser must store the steel cassettes properly and mark
them as the property of profine. Transfer to third parties shall
not be permitted.

c) Once a month, the Purchaser shall receive a list of steel
cassette movements and the actual stock resulting thereof,
including the permitted stock limit. If the Purchaser does not
object to this list within 14 days after receipt of the list, the
respective list shall be deemed approved by the Purchaser.

d) The Purchaser shall be liable for any kind of damage to or
loss of the steel cassettes. In the event that it is not possible
for the Purchaser to return the steel cassettes to profine in
proper condition, the Purchaser shall be obliged to pay
profine a lump-sum compensation in the amount of the
customary market procurement value, but at least € 400.00
per steel cassette.

 

e) If the Purchaser fails to return the steel cassettes within
the agreed period of time, profine shall reserve the right to
charge the client, in the future, for the stocks which are above
the said limit within two (2) consecutive months, at a cassette
rental rate of currently € 12/cassette (based on the applicable
up-to-date EPPA specifications) as stipulated by the EPPA
association [https://de.eppa-profiles.eu/sustainabledevelopment].

2. The risk shall pass on to the Purchaser, at the latest, when
the delivery items are handed over to the carrier
commissioned by the Purchaser at the place of lading as
designated in the order confirmation. The same shall apply
in case of partial deliveries. Purchaser shall be in default of
acceptance if, having received notification from profine that
the delivery items are ready for dispatch, it refuses to take
over the delivery items on the specified date or does not pickup
or commission a carrier to pick up the delivery items on
the specified date.

3. If the Purchaser is in default of acceptance of the delivery
items or fails to comply with other duties to cooperate, profine
shall be entitled to demand compensation for any damages
incurred, including any additional expenses resulting
therefrom. In this case, the risk of accidental loss or
deterioration of the purchased item passes on to the
Purchaser. After expiry of an appropriate additional period of
time for acceptance set by profine, profine shall be entitled to
either otherwise dispose of the delivery items or to effect
delivery to the Purchaser within a reasonably prolonged
period of time.

4. The delivery items will only be insured against theft,
breakage, transportation, fire and water damage or other
insurable risks at the explicit request and expense of the
Purchaser.

5. Without prejudice to its rights under Clause VII of these
General Terms & Conditions of Delivery, the Purchaser shall
be obliged to accept the delivery items delivered even in case
that the items show negligible defects and may only be
returned to profine under the condition precedent that the
Purchaser is entitled to withdraw from the contract in
accordance with section VII para. 3.

VI. Retention of title

1. profine reserves title to the delivery items until any and all
claims against the Purchaser arising from the business
relationship have been settled, including future claims arising
from agreements concluded concurrently or at a later time.
This shall also apply if individual or all of profine’s claims are
included in a current account and the balance has been
stricken and accepted.

2. If profine withdraws from the contract due to the Purchaser's
breach of contract, in particular due to the Purchaser's
delayed payment, the Purchaser shall bear all costs
associated with profine's repossession of the supplied
delivery items. In the event of seizures or other interventions
of third parties, the Purchaser must immediately notify
profine in writing, provide all necessary facts and inform the
third party about the existing ownership situation. The
Purchaser must not pledge or transfer title of the delivery
items as collateral. The Purchaser shall handle the supplied
delivery items with due care. In particular, the Purchaser
shall insure the delivery items at replacement value against
damage by fire, water and theft at its own expense.

3. The Purchaser shall be entitled to resell the supplied delivery
items in the ordinary course of business. However, it shall
assign to profine any and all future claims and ancillary rights
arising from the resale of the delivery items against the purchaser

or a third party, irrespective of whether the delivery
items to which title has been retained are resold without or
after further processing. The Purchaser shall remain
authorized to collect these claims, even after the assignment.
profine's authority to collect claims itself remains unaffected
hereby. However, it shall undertake to refrain from collecting
claims for as long as the Purchaser meets its payment
obligations, is not in default of payment and, in particular, has
not suspended payments and not filed for insolvency
proceedings. profine is entitled to demand that the Purchaser
informs it about the assigned claims and the respective
debtors, provides all information necessary for the collection
of the debts, hands over the necessary documents and
informs the debtor of the assignment.

4. The processing or conversion of the delivery items by the
Purchaser shall always be performed on profine's behalf.
The Purchaser's expectant right to the delivery items shall
continue to apply to the processed or converted items. If the
delivery items to which title has been retained are processed
or inseparably combined with other items which are not
owned by profine, profine shall acquire co-ownership of the
new items in proportion to the value of the delivery items for
which title is retained to the processed items at the time of
processing. If the delivery items are processed in such a way
that the Purchaser's items form the main part of the
processed item, it is agreed that the Purchaser transfers
proportionate co-ownership to profine. The Purchaser shall
store such items of sole or co-ownership for profine. The new
combined or processed item shall be subject to the same
provisions as are delivery items to which title is retained.

5. The Purchaser shall also assign all claims against third
parties arising from the combination of the delivered delivery
items with a building or real estate as collateral for profine's
claims.

6. When so requested by Purchaser, profine shall release
collateral if the realisable value of such, taking into account
usual bank reductions of valuation, exceeds the claims for
which collateral have to be furnished by more than 20%. In
this calculation, the dealer purchase prices shall be assumed
for delivery items and the nominal value for claims.

VII. Claims for defects/ limitation period

1. The Purchaser’s claims based on defects of the delivery
items require that it has properly complied with its obligations
to inspect and complain under section 377 of the German
Commercial Code (Handelsgesetzbuch, HGB). Purchaser is
required to provide notice of defects in writing to profine,
precisely specifying the type and extent of the defect so that
profine can examine whether the notice of defect is justified.
Furthermore, Purchaser shall inspect the supplied delivery
items immediately after receipt for damages during
transportation. The Purchaser shall note any damage
discovered thereby on the bill of lading, such objection being
countersigned by the carrier, and notify profine respectively
in writing.

2. If the supplied delivery items are defective, profine shall be
entitled at its own discretion to either remedy the defect or
supply a replacement item. profine shall pay all costs
associated with subsequent performance pursuant to section
439, paragraph 2 and paragraph 3 of the German Civil Code
(Bürgerliches Gesetzbuch, BGB). If the Purchaser asserts a
justified claim for costs against profine in this connection as
a result of the deployment of own employees, delivery items
or devices, Purchaser's claim for the reimbursement of such
costs shall be limited to its own costs (Selbstkosten).

 

3. If profine is not willing or able to remedy the defect or supply
a replacement item, if it refuses to do so or exceeds
reasonable time limits for reasons within its own liability, or if
it fails at least twice to remedy the defect for other reasons,
Purchaser shall be entitled at its discretion to withdraw from
the contract or demand an appropriate reduction of the
purchase price. The provisions set forth in section VIII shall
remain unaffected.

4. Purchaser shall not be entitled to withdraw from the contract
due to the delivery of defective delivery items if it is not able
to return the performance received and this is not due to the
fact that the nature of the performance makes this
impossible, the impossibility is within profine’s responsibility
or the defect did not become apparent until the item had been
processed or converted. In case of delivery of defective
delivery items or of partial performance, the Purchaser shall
only be entitled to withdraw from the entire contract or
demand compensation for damages in lieu of performance in
accordance with the following provisions if it has no interest
in the performance provided, judged by objective criteria.

5. For essential third party products, profine's liability shall be
limited to the assignment of the claims to which profine is
entitled in relation to the supplier of the third party product. If
the claim against the supplier of the third party product is not
honoured for reasons which are not within the Purchaser’s
responsibility (e.g. due to the supplier's insolvency), the
Purchaser shall be entitled to those claims for defects against
profine which are provided for in the provisions of this section
VII.

6. If the Purchaser has resold an item supplied by profine to a
consumer within the meaning of section 13 of the German
Civil Code, (so-called "consumer goods purchase") and the
item was returned to the Purchaser by the consumer as a
result of a defect or the consumer reduced the purchase
price, the Purchaser may, deviating from sections VII.2 and
VII.3, either demand remedy of the defect, request the
delivery of a replacement item, withdraw from the contract or
reduce the purchase price. In this case, para. 4 and 5 of this
section VII shall not apply.

7. The Purchaser shall be entitled to claims for damages only
under the prerequisites set by section VIII of these General
Terms & Conditions of Delivery.

8. Any claims for defects of the delivery items are excluded in
case the Purchaser reworks or engages a third party to
rework the delivery items without profine's consent and this
unreasonably complicates the process of remedying the
defect or renders it impossible. In any case, the Purchaser is
required to pay any resulting additional costs in connection
with remedying the defect. No liability is accepted for damage
resulting from the following:
· unsuitable or improper use, particularly violations of
profine's processing guidelines,
· incorrect assembly or commissioning by the Purchaser
or a third party, unless attributable to erroneous
assembly instructions provided by profine,
· modifications to the delivery items by the Purchaser or a
third party,
· natural wear and tear, unless explicitly guaranteed
otherwise by profine,
· incorrect or negligent handling or storage,
· unsuitable consumables, replacement materials,
· chemical, electrochemical or electrical effects, unless
these are the fault of profine 9. The statue of limitations for claims for defects of the delivery
items delivered is one year starting from the passing of the
risk. This also applies to the statute of limitations for claims
under section 823 of the German Civil Code based on a
defect of the delivery items.
Deviating from the above, the statutory period of limitation
shall apply in cases of injury to life, body or health, damages
under the Product Liability Act or damages caused by wilful
acts or gross negligence on the part of profine's legal
representatives, executives or vicarious agents. It shall also
apply (i) if profine is liable to the Purchaser according to
clause VII.6 for a consumer goods purchase, (ii) for defects
of a building or for delivery items supplied which are typically
used for building construction and which have caused a
defect of such building or (iii) in case of recourse pursuant to
sections 445a, 445b, 478 of the German Civil Code.

VIII. Claims for damages

1. profine's liability for damages, based on whatever legal
grounds, in particular impossible, delayed, defective or
incorrect delivery, breach of contract, breach of obligations in
contractual negotiations and tort, is limited as specified in this
section VIII.

2. profine shall be liable under the statutory regulations for
damages caused by wilful acts and gross negligence of its
legal representatives and executives, for injury to life, body
and health, for explicitly guaranteed features of the delivery
items and in accordance with the German Product Liability
Act.

3. In any other cases than those pursuant to section VIII para.
2, profine shall not be liable for slight negligence on the part
of its legal representatives, executives, employees or other
vicarious agents unless such negligence constitutes a
breach of an essential contract obligation. Essential
contractual obligations in the afore-mentioned sense shall be
such obligations which are essential to the proper
performance of the contract and which contractual partners
may typically expect to be met.

4. As far as profine is liable pursuant to section VIII para.3 for
damages, its liability is excluded as far as the Purchaser has
effectively limited its own liability against its customers. The
Purchaser shall undertake its best efforts to agree limitations
on liability to the extent admissible by law - also in favour of
profine - with its customers.

5. If profine is liable pursuant to section VIII para. 3 on the
merits for damages caused by the slightly negligent breach
of contractual obligations such liability shall be limited to
damages that are typical and foreseeable under the contract
at hand.

6. As far as profine is liable pursuant to section VIII para.3 for
damages, indirect or consequential damages which result
from defects of the delivery items delivered shall only be
compensated as far as such damage can be typically
expected in the course of the customarily use of the delivery
items.

7. If profine provides technical information or advice, which
advice is not part of profine’s contractual undertakings, it
shall be provided free of charge and under exclusion of any
liability.

8. In case the Purchaser intends to assert a claim against
profine in accordance with the preceding provisions, it shall
promptly notify profine hereof, provide comprehensive
information and consult with profine. Purchaser shall give

profine the opportunity to examine the case of loss. The
parties to the contract agree to consult each other on the
measures to be implemented, particularly in settlement
negotiations.

IX. Export Regulations – prerequisites to be met for
deliveries by profine

Delivery by profine shall be subject to the proviso that any
necessary export permits have been granted and there are
no other obstacles to the delivery items being exported by
profine as exporter/carrier or one of profine's suppliers as a
result of any export or transportation regulations which have
to be complied with.

X. Final provisions

1. If the Purchaser is a merchant, a legal entity under public law
or a special fund under public law, profine’s registered office
is the proper legal venue. However, profine shall also be
entitled to bring an action against the Purchaser at any other
given legal venue.

2. All deliveries shall be governed by the law of the Federal
Republic of Germany. The application of the United Nations
Convention on Contracts for the International Sale of
Delivery items (CISG) of 11 April 1980 is excluded.

3. If any provision of these General Terms and Conditions of
Delivery is found to be invalid, this shall not affect the validity
of the remaining provisions. The contractual partners shall
reach agreement on the replacement of the invalid provision
with a substitute provision which comes closest to the
originally intended economic purpose. This provision shall
also apply if any gaps or omissions in these General Terms
& Conditions of Delivery are discovered.

Version dated: September 2023