Our General Terms and Conditions (GTC)
1.1 Between Profiness and the customer as well as other customers, these terms and conditions of sale and delivery shall apply exclusively for the present and all future contracts to be concluded.
1.2 The contracts shall be concluded in writing. Verbal agreements require written confirmation.
1.3 The contractual components referred to here as delivery within the framework of purchase contracts are to be regarded as performance in the case of contracts for work and services or contracts for work and materials.
1.4 Our terms and conditions shall be deemed accepted at the latest upon acceptance of our delivery or service.
Offer, Order, Order Confirmation
2.1 All orders, including those preceded by an offer from us, shall only become a legally effective part of the purchase contract through our written acceptance of the order. Deliveries or invoicing shall be deemed as acceptance of order under the conditions set out here. Automatically generated order confirmations in the online shop are not order confirmations.
2.2 We expressly reserve the right to deliver the articles offered in the shop.
Prices and pricing
3.1 Unless otherwise agreed, our prices are quoted ex warehouse or supplier's works, excluding packaging, in the case of domestic business plus VAT at the statutory rate.
Scope of Delivery, Shipping, Transfer of Risk, Packaging
4.1 All price agreements shall apply to the delivery of full original factory packaging. In the event of deviating order quantities, we reserve the right to round up or round down to the next packaging unit irrespective of the quantity required.
4.2 In the case of custom-made products, excess or short deliveries of up to +/- 15 % due to production technology shall be regarded as performance quantities without special agreement.
4.3 Partial deliveries are permissible.
Delivery periods, delay in delivery
5.1 The delivery period shall be deemed to be approximately agreed unless a specific delivery date has been expressly agreed in writing.
5.2 Compliance with the delivery period is subject to the fulfilment of all contractual obligations of the customer arising from this or other contracts with us.
5.3 The agreed delivery periods begin with the dispatch of the order confirmation, but not before clarification of all details of the order necessary for the execution of the delivery (drawings, release of samples, opening of a letter of credit, etc.) and refer to the time of dispatch of the goods. The delivery date shall be deemed to have been met if the goods have left our warehouse or that of the factory by the end of the delivery period or if readiness for dispatch has been declared.
5.4 The delivery period shall be extended, even during a delay that has already occurred, in the event of unavoidable and unforeseen events of force majeure. These include: strike, lockout, mobilization, war, blockade, import and export bans, official rationing measures, lack of raw materials, lack of energy, fire, transport and traffic disruptions as well as other events over which we have no control and which make it unreasonably difficult or impossible for us or our suppliers to fulfil the purchase contract.
5.5 Should we be in default with a bindingly promised delivery date, the customer must grant us a grace period. The length of the grace period depends on the article-specific difficulty of production or procurement and may not be less than 6 weeks without special agreement. If a delivery or service is not possible for us after expiry of this period, the customer may withdraw from the contract for those quantities or services which had not been dispatched or reported as ready for dispatch by expiry of the grace period. Only if the partial services already rendered are demonstrably of no interest to the customer shall he be entitled to withdraw from the entire contract.
5.6 If the customer demonstrably suffers damage due to a delay attributable to our fault, he shall be entitled to claim compensation for the delay. It shall amount to 0.5% for each full week of delay, but in no case more than a total of 5% of the value of that part of the delivery or service which demonstrably caused such damage due to a delay in delivery for which we are responsible.
5.7 If the customer is in default of acceptance of the goods, we shall be entitled, after expiry of a reasonable grace period, to claim damages for non-performance. This amounts to a lump sum of 20% of the order value. We reserve the right to assert a higher damage to be proven. Furthermore, in such a case we shall be entitled to dispose of the delivery item otherwise and to supply the customer after a reasonably extended period.
5.8 Unless otherwise agreed, goods ordered on call shall be accepted no later than 3 months after the start of readiness for dispatch, without any request or notice of default on our part being required. After expiry of the aforementioned period, we shall at any time be entitled, at our discretion, either to invoice the goods or to withdraw from the order and claim damages for non-performance.
6.1 Unless otherwise agreed above, liability is excluded.
6.2 The time of transfer of risk shall be decisive for the contractual condition of the goods. For defects of the delivery, which also include the absence of warranted characteristics, we shall be liable to the exclusion of further claims as follows:
6.3 Notifications of defects with regard to properties, weights or dimensions must be made to us in writing or by telex immediately after receipt of the goods at the place of destination. Verbal or telephone notifications of defects require written confirmation in order to be effective.
6.4 Other defects must be claimed within 8 days of receipt or discovery.
6.5 The customer shall in principle only have claims arising from a notice of defect if he gives us the opportunity to convince us of the nature of the defect by providing us with samples of the goods complained of upon request. He shall not have the right to return the entire quantity of goods complained of without our consent.
6.6 If a quality inspection (acceptance) of the goods is carried out by the buyer or by third institutions commissioned by him, a later notification of defects which could be detected during the agreed inspection is excluded.
6.7 Defective goods may not be processed.
6.8 In the event of a justified notice of defect, we shall be entitled, at our discretion, either to remedy the defect free of charge or to replace the defective goods free of charge with faultless goods. For this purpose, the customer shall grant us a period of time appropriate to the nature of the goods. If it is not possible for us to remedy the defect or provide a replacement, the customer shall have the right to demand a reduction in payment or withdrawal from the contract. In the case of faulty custom-made products, however, the customer only has the right to a reduction. If our supplier is responsible for the defect, our liability shall be limited to the assignment of the liability claims to which we are entitled against him.
6.9 If the customer does not properly fulfil his obligations towards us from this and all other contracts concluded with him, we have the right to refuse to fulfil justified warranty claims.
6.10 To the extent permitted by law, all further claims of the customer, in particular for compensation for damages of any kind, including those which have not occurred on the delivery item itself, are excluded.
Quality agreement, assembly
7.1 The object of purchase is in accordance with the contract if it is suitable for normal use or has a quality which is usual for objects of the same type and which the customer can expect according to the nature of the object. Samples, brochure information or information resulting from other advertising material are non-binding guide values.
7.2 A quality agreement deviating from these conditions or the assumption of a guarantee require the additional written confirmation of Profiness in order to be effective. The employees of Profiness are not entitled to make or give quality agreements or guarantees that go beyond the written contract and these conditions.
7.3 If Profiness supports the construction management or other personnel of the customer through its personnel in supervising the installation or assembly, Profiness is only liable for selecting technically suitable personnel. Profiness does not assume the tasks and activities of construction management, specialist construction management, construction supervision, planning or coordination as well as assembly work. Furthermore, Profiness is not responsible for the professional, appropriate and drawing-compliant insertion of the object of purchase.
Extended durability guarantee for products in the Solar Mounting Systems division
8.1 If Profiness grants the customer a written guarantee for the durability of the components or systems, the following provisions shall apply:
8.2 Unless otherwise agreed, no warranty period applies to all goods delivered by Profiness.
8.3 If a guarantee has been agreed, the guarantee is granted for the durability of the purchased items and results exclusively in the claims specified below.
8.4 If, despite proper installation and handling, damage occurs to the purchased items under normal use, Profiness will replace the affected component immediately within the warranty period. The guarantee is limited to the subsequent delivery if the damage is reported within the guarantee period. Any statutory warranty or liability claims remain unaffected.
8.5 The obligation to provide a warranty does not apply if the damage was caused in connection with faulty installation or handling of the system or in connection with extraordinary stress (e.g. storm damage, effects due to instability of the subsoil, special chemical or biological effects), unless it can be proven that the damage was not caused by this, but essentially by a material or design defect. For installation and handling, the technical product descriptions and installation instructions supplied by us for the respective products, the legally prescribed or generally recognised standards and principles of architecture and, if applicable, the plans, statics and instructions produced by our customers shall apply.
8.6 There shall be no claims insofar as the damage is covered by insurance against storms and similar events (elementary insurance) or can usually be covered.
8.7 This guarantee only justifies claims by the Profiness customer, who is responsible for handling all guarantee cases. The assertion of claims by third parties is only possible if Profiness agrees to this.
Terms of payment
9.1 Private customers and industrial customers generally pay in advance. Unless otherwise agreed, industrial customers who have already paid for three orders in advance must pay in cash without deduction within 14 days of the invoice date.
9.2 Payment shall be deemed to have been made if it has been received free place of performance during this period. In the case of cheques and bills of exchange, payment shall not be deemed to have been made until they have been honoured. Acceptance, which can only take place with our consent, does not constitute a deferment of payment. The acceptance of cheques and bills of exchange shall be subject to charging of collection and discount charges as well as subject to proper receipt. Further transfer and prolongation shall also not be deemed performance.
9.3 Cash payments, bank transfers or cheque payments made against a bill of exchange issued by us and accepted by the Buyer shall not be deemed payment until the bill of exchange has been honoured by the drawee and we are thus released from liability for the bill. The agreed retention of title (notwithstanding further agreements and other retention of title rights) shall thus remain in force at least until the bill of exchange has been honoured in our favour.
9.4 Any agreed cash discount deduction can only be granted if all other invoices have been settled. Otherwise, the payment shall be assigned to the oldest due date as partial payment à account.
9.5 The customer shall be in default at the start of the day on which the invoice is due, without the need for a special reminder.
9.6 In the event of late or deferred payment, customary bank interest or commission shall be charged.
9.7 If the delay in payment occurs or if we become aware of circumstances which, according to due commercial judgement, are suitable to assess the creditworthiness differently than at the time of the conclusion of the contract, we shall be entitled to demand immediate payment of all claims irrespective of their due date. Furthermore, we reserve the right to claim cash payment for all outstanding deliveries before production/delivery of the goods or to withdraw from the contract after a certain period of grace without prejudice to the claim for damages. In the event that we withdraw from the contract, the customer hereby agrees that we ourselves may repossess the delivered goods. The costs of the return transport and all other costs in causal connection therewith shall be borne by the customer. Irrespective of the customer's obligation to pay, we shall be entitled to dispose of the delivered goods as best we can by private sale at the customer's expense. The proceeds shall be credited to the customer's residual debt after deduction of the costs. Any outstanding claim on our part shall be deemed to be a residual debt.
9.8 The customer may only offset our payment claims against undisputed and legally established claims. Retention of payments by the customer is not permitted insofar as the claims are based on other contractual relationships.
Retention of title
10.1 We retain title to all delivered items until receipt of all payments on all our claims arising from the business relationship (principal and ancillary claims) including any refinancing and bills of exchange.
10.2 The customer is obliged to insure the delivery item at his own expense against theft, fire and other damage and to provide us with evidence of the conclusion of the contract. Until our claims have been paid in full, the customer must notify us of any change of residence 8 days prior to the move.
10.3 The delivery item may neither be pledged nor assigned as security by the customer. In the event of seizures, confiscations or other dispositions by third parties, the customer must inform us immediately to a sufficient extent.
10.4 The customer may only resell the delivery item in the ordinary course of business. He hereby assigns to us all claims to which he is entitled from the resale. Installation in land or in installations connected with buildings or use for the fulfilment of other contracts for work and services or contracts for work and materials by the customer shall be deemed equivalent to resale. The customer is authorised to collect the assigned claims as long as he fulfils his obligations towards us in accordance with the contract. He must immediately transfer the amounts collected to us if the claims are due.
10.5 By processing the delivery item, the customer does not acquire ownership of the goods manufactured in whole or in part. Processing shall be free of charge for the Seller. Should the retention of title nevertheless expire due to any circumstances, the customer hereby agrees that ownership of the goods shall pass to us upon processing. The customer shall remain the custodian of these items free of charge.
10.6 In the case of processing with goods still owned by third parties, we shall acquire co-ownership of the new goods. The extent of this co-ownership shall be determined by the ratio of the invoice value of the goods delivered by us to the invoice value of the remaining goods. The agreed advance assignment shall also apply to the resale of goods processed in this way. If, in addition to the goods delivered by us subject to reservation of title, the processed product only contains items which either belonged to the customer or were delivered subject to reservation of title, the customer shall assign the entire purchase price claim to us. If the advance assignments to several suppliers coincide, we shall be entitled to that fraction of the claim which corresponds to the ratio of the invoice value of our reserved goods to the invoice value of the other processed items.
10.7 If we assert the retention of title and/or take back the goods, this shall not constitute a withdrawal from the contract; any return of goods shall always only take place as security. This shall also apply if partial payments are subsequently permitted.
10.8 Insofar as the value of the securities to which we are entitled undoubtedly exceeds our total claim against the customer by more than 25 %, we shall release the surplus of securities at our discretion at the customer's request.
Place of performance, place of jurisdiction, applicable law
11.1 The place of performance for all rights and liabilities/payments arising from the contractual relationship shall be Oberhausen.
11.2 The place of jurisdiction shall be Oberhausen to the extent permitted by law. However, we reserve the right, in the event of a legal dispute, to assert claims against the customer at another location in the Federal Republic of Germany.
11.3 German law shall apply exclusively to all contracts concluded on the basis of these conditions.
Partial invalidity of contracts
12.1 In the event of partial legal invalidity of these terms and conditions, both the customer and we undertake to regard the remaining terms and conditions as contractually effective.
12.2 If in such a case the parties to the contract should not agree on a provision which is equivalent to the economic result within the framework of what is reasonable in good faith, the corresponding statutory provision shall apply.
Information according to distance tax law
13.1 In accordance with the German Distance Selling Act (Fernabsatzgesetz), you as a consumer may revoke the contract within two weeks without giving reasons in writing (e.g. letter, fax, e-mail) or by returning the goods. The period begins upon receipt of the goods. The timely dispatch of the revocation or the goods shall suffice to comply with the revocation period. If you exercise your right of revocation, you must bear the costs of returning the goods up to an order value of 40.00 Euro in accordance with the Distance Selling Act.
Mülheim, January 2019