General Terms and Conditions

General Terms and Conditions of Rollicoat GmbH

1. General, Scope of Application

1.1

These General Terms and Conditions (GTC) apply to all business relationships with our customers who are entrepreneurs (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law (“Buyer”). Any previously included general terms and conditions are replaced by these GTC.

1.2

Our product range is aimed exclusively at entrepreneurs. By submitting an offer (see Section 2.1), the buyer confirms that he is acting as an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), or that the regulations for entrepreneurs apply to him and that he is authorized to conclude the corresponding transaction.

1.3

These GTC shall apply in particular to contracts for the sale and/or delivery of movable items (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB).

1.4

These GTC shall apply in the version valid at the time of the buyer’s order or, in any case, in the version last communicated to him in text form, as a framework agreement for similar future contracts with the buyer, without us having to refer to them again in individual cases. With regard to the form of any agreements deviating from these, reference is made to Section 1.6.

1.5

We provide our services and/or conclude contracts exclusively on the basis of these GTC. We hereby expressly and fully object to any of the Buyer’s general terms and conditions that differ from, conflict with, or supplement these GTC, including those that govern matters not mentioned in these GTC. The buyer’s general terms and conditions shall only be deemed accepted if we have previously expressly agreed to their validity in text form. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the buyer without reservation in the knowledge of the buyer’s general terms and conditions.

1.6

Individual agreements made with the buyer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

1. Conclusion of contract

2.1

Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or other information or documents – also in electronic form – (hereinafter collectively referred to as “documents”). We reserve the ownership rights and all copyrights to such documents. The provisions of the German Trade Secrets Act (GeschGehG) shall apply to these documents (at least by analogy), irrespective of the scope of application of this law. They are therefore to be kept secret by the Buyer with appropriate measures.

2.2

The Buyer’s order shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within four weeks of its receipt by us.

2.3.

We can declare our acceptance of this contractual offer either in text form to the buyer (e.g. by sending an invoice, a delivery note or an order confirmation – also electronically) or by delivering the goods to the buyer.

1. Terms of payment

3.1

The agreed purchase price shall be due upon delivery, without the need for an invoice. However, we will endeavor to send the buyer an invoice promptly upon delivery. The buyer expressly consents to the sending of invoices by email. He will provide us with a suitable email address for this purpose.

3.2

We are entitled at any time to make a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation.

3.3

The buyer is only entitled to a right of set-off and a right of retention to the extent that his respective (counter)claim has been legally established or is undisputed. In the event of defective delivery, the Buyer’s counterclaims as per Section 7.4 of these Terms and Conditions remain unaffected. The Buyer’s rights of retention can only be based on counterclaims from the same contractual relationship, whereby the lack of receipt of an invoice does not constitute a right of retention.

3.4

The buyer shall be in default one week after the purchase price payment is due (see Section 286 (2) no. 2 BGB), unless other payment terms have been agreed. During the period of default, interest shall be paid on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to claim further damages for default. Our claim for commercial maturity interest (Section 353 of the German Commercial Code) against merchants remains unaffected.

3.5.

If the delivery is to be made later than four months after the conclusion of the contract in accordance with the contract, we are entitled to adjust the price appropriately to the changes in the relevant standard wages and/or material costs and/or other costs that have occurred between the conclusion of the contract and delivery. The latter shall also apply, irrespective of the aforementioned four-month period, if the purchase costs incurred by us have increased significantly due to unforeseeable, in particular political or official decisions, such as the introduction of customs duties or pandemic control measures, and our price adjustment is based exclusively on these increases.

3.6

If, after the contract has been concluded, it becomes apparent that our claim to payment of the purchase price is at risk due to the buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions (Section 321 BGB) and – if necessary after setting a deadline – to withdraw from the contract. In the case of contracts for the manufacture of specific items (custom-made items), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

3.7

In the case of intra-Community deliveries, the buyer is obliged to provide us with his VAT registration number, as well as the other information necessary to verify tax exemption, and to provide the necessary evidence of tax exemption. If the buyer does not immediately comply with these obligations, we are entitled to treat the delivery as not tax-exempt, so that the applicable VAT is additionally calculated and demanded. If we have wrongly treated a delivery as tax-exempt due to incorrect information provided by the buyer, the buyer shall indemnify us against the tax liability at first request and bear all expenses incurred in this respect.

1. Delivery of the goods, delivery dates

4.1

Delivery is ex our warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods will be shipped to a different destination (sale to destination according to buyer’s instructions). Any customs duties, fees, taxes and other public charges incurred shall be borne by the buyer. Unless otherwise expressly agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

4.2

The delivery period shall be agreed individually or stated by us when we accept the order / in the contract confirmation. The agreement of delivery times does not constitute a fixed-date transaction; deadlines and dates shall only be deemed to be approximate unless they are expressly designated as binding in the order confirmation. We shall be entitled to deliver earlier than the agreed delivery date.

4.3

We are only responsible for timely and proper delivery to the transport company. We are not responsible for delays caused by the transport company, unless such responsibility arises from a mandatory legal regulation.

4.4

If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of the service), we will inform the buyer of this immediately and at the same time provide an estimated new delivery time. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already provided by the buyer to the extent of the non-availability. In particular, non-availability of the service in this sense includes late delivery by our suppliers if we have concluded a congruent hedging transaction, if neither we nor our suppliers are at fault or if we are not obliged to procure in individual cases.

4.5

The occurrence of our default in delivery is determined by the statutory provisions. In any case, however, a reminder from the buyer is required. Damages are limited to a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has not incurred any damage at all.

4.6

If the goods are in stock when the customer accepts the offer and delivery is made against advance payment, we will hold the goods in stock for a period of five working days after the contract is concluded. If we do not receive payment of the full purchase price (including VAT and any shipping costs) within this period, we are entitled to sell the goods. In this case, the goods will only be shipped within a further period of five working days while stocks last.

4.7

If the goods cannot be delivered or cannot be delivered on time, we will notify the buyer immediately. The delivery period shall be reasonably extended in the event of delayed delivery by our suppliers through no fault of our own, in the event of force majeure (e.g. pandemic control measures, natural disasters or civil unrest), strikes, industrial action, operational disruptions, lack of materials or energy through no fault of our own, or similar events beyond our control that prevent delivery. If these circumstances result in an obstacle to performance that is not only temporary, we shall be entitled to withdraw from the contract.

If the hindrance lasts longer than two months, the buyer shall be entitled to withdraw from the contract with regard to the part not yet fulfilled. However, with regard to the part already fulfilled, he can only withdraw if acceptance of the partial performance already rendered is unreasonable for him.

In the event of a (partial) withdrawal, we will refund to the customer any payments made within a reasonable period of time to the extent of the contract reversed by the withdrawal.

4.8

If changes to the content or scope of the product delivery are mutually agreed after the contract has been concluded, the delivery period for the entire delivery shall commence anew from the time of the change. We are also entitled to deliver before the agreed delivery date.

4.9

We are entitled to make partial deliveries if this is reasonable for the buyer. The additional shipping costs incurred as a result shall be borne by us.

4.10.

The rights of the buyer in accordance with Section 8 of these terms and conditions and our legal rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

1. Transfer of risk

1. 1

The risk of accidental loss, accidental deterioration or accidental loss of the delivered goods, as well as the risk of delay (hereinafter: “risk”), shall pass to the buyer upon delivery of the goods to the person transporting them. If the buyer is in default of acceptance, the transfer shall be deemed to have taken place.

5.2

Transport insurance for the ordered goods shall only be taken out at the express request and expense of the buyer.

5.3

If the buyer is in default of acceptance, fails to cooperate or if shipment is delayed due to circumstances for which the buyer is responsible, the risk shall pass to the buyer upon notification by us that the goods are ready for shipment. In this case, the costs incurred for the storage of the ordered goods may be charged to the buyer, starting with the delivery period or, in the absence of a delivery period, with the notification of readiness for dispatch. These costs shall amount to at least 0.5% of the scope of the offer. Both parties shall be free to prove higher or lower damages or that no damages have been incurred. Our statutory claims for damages (in particular compensation for additional expenses, reasonable

compensation, termination) shall remain unaffected, whereby any corresponding damages paid in accordance with the above flat rate shall be set off against further claims for payment.

1. Reservation of title

6.1

We retain title to the goods delivered until all current and future claims arising from the purchase contract and the ongoing business relationship with the buyer (secured claims) have been settled in full.

6.2

The buyer is entitled to resell and/or process the goods delivered under retention of title in the ordinary course of business. In the event of a possible resale, the buyer hereby assigns to us the claims arising from the resale with regard to the purchase price to be paid to us. However, this assignment shall only apply to the amount corresponding to the price we invoiced for the goods. The customer is entitled to collect the claims assigned to us in the ordinary course of business, whereby this authorization can be revoked at any time for good cause, in particular in the event of default in payment, cessation of payments, the opening or application for insolvency proceedings or justified indications of over-indebtedness or impending insolvency on the part of the buyer with respect to the buyer or its customers. Such a revocation also includes the revocation of the buyer’s authorization to resell and process the goods subject to retention of title. In the event of revocation, the buyer is obliged to notify us of the assigned claims together with the corresponding debtors and to provide us with all further information necessary for the collection of the claims, as well as to hand over the relevant documents and to notify the debtors of the assignment.

6.3

If the goods subject to retention of title are combined or mixed, we shall acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the processed items at the time of processing.

6.4

In the event of attachment, seizure or intervention by a third party in the ownership rights to the goods, the buyer must notify us immediately. The buyer is not permitted to transfer ownership of the reserved goods by way of security or to encumber them with any other third-party rights.

6.5

The buyer is obliged to insure the reserved goods against the usual risks such as fire, water, theft, etc. at his own expense and to provide us with evidence of this insurance upon request. If the buyer fails to comply with the obligation to insure, we shall be entitled to take out insurance at the buyer’s expense, to advance the insurance premium and to demand it from the buyer. The buyer shall assign to us all claims against the insurer or the damaging party with priority for the insurance claim. We shall accept this assignment.

6.6

If the realizable value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 10%, we will release a corresponding part of the security interests at the request and declaration of the buyer; the buyer is entitled to choose between different security interests when releasing them.

1. Liability for defects

7.1

In the event of defective goods, the buyer shall be entitled to the statutory claims for liability for defects, unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the unprocessed goods to a consumer shall remain unaffected, even if the consumer has further processed them (supplier recourse according to §§ 478 ff. BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by incorporation into another product.

7.2

We warrant that the delivery item has the agreed quality at the time of the transfer of risk. An agreement on quality is determined exclusively by the specific written agreements between the parties regarding the properties, features and performance characteristics of the delivered goods. Reasonable changes do not constitute a breach of an agreement on quality or a warranty claim. Reasonable changes are insignificant deviations of the delivered goods from the descriptions and information in the written and electronic documents with regard to technology, color, weight, dimensions, design or similar characteristics. Public praise, statements or other advertising by a third party, such as the manufacturer of the goods, have no effect on the agreed quality and therefore cannot justify any defects.

7.3

We shall not be liable for defects of which the buyer was aware at the time of the conclusion of the contract or was not aware due to gross negligence, provided that the requirements of § 442 BGB are met.

7.4

Insofar as a defect covered by warranty is present, we shall be entitled to choose between remedying the defect (rectification) or delivering a defect-free item (replacement delivery) (subsequent performance). We are entitled to two attempts at subsequent performance. The statutory cases in which setting a deadline is unnecessary remain unaffected. Our right to refuse subsequent performance under the statutory conditions remains unaffected. The buyer must cooperate in the subsequent performance to the extent necessary; in particular, he must grant us the time necessary for this and hand over the defective goods.

7.5

We are entitled to make the subsequent performance owed dependent on the buyer paying the due purchase price. However, the buyer is entitled to withhold a reasonable amount in relation to the defect.

7.6

In the event of liability for defects, the defective item is generally to be sent to us at our expense. We will return the goods that have been repaired or replaced to the buyer. Replaced parts become our property. We shall bear the costs incurred for the purpose of subsequent performance in the event of liability for defects, with the exception of those costs that are based on the fact that the buyer requests that the (subsequent) delivery be made to a location other than the buyer’s branch. If it turns out that the goods were not defective, we shall be entitled to demand that the buyer reimburse us for the costs incurred as a result of the unjustified request to remedy the defect, unless the lack of defectiveness was not recognizable to the buyer.

7.7

The warranty claims of a merchant presuppose that he has fulfilled his statutory inspection and notification obligations (Section 377 of the German Commercial Code). If a defect becomes apparent upon delivery, inspection or at a later point in time, we must be notified of this immediately. In any case, obvious defects must be reported within 5 working days of delivery at the latest. We must be notified of hidden defects within 5 working days of their discovery. If the buyer fails to meet this deadline, our liability for the defect that has not been reported or has been improperly reported is excluded in accordance with the statutory provisions.

7.8

In the event of failure of the subsequent performance or after the expiry of a reasonable period set by the buyer for the subsequent performance, insofar as this is not dispensable according to the statutory provisions, the buyer may withdraw from the contract or reduce the purchase price. There is no right of withdrawal in the event of an insignificant defect.

7.9

Claims of the buyer for damages or reimbursement of wasted expenditure shall only exist in accordance with the provisions of Section 8, even in the case of defects, and shall otherwise be excluded.

7.10

The warranty period is six months from delivery. We shall be liable for improvements to the same extent as for the improved goods, namely for a period of six months from delivery of the originally delivered goods to the buyer, unless this is contrary to mandatory legal regulations. The same applies to the delivery of replacement parts as part of the subsequent performance.

1. Liability

8.1

For all claims of the parties against each other, which are not claims for performance or serve the fulfillment of contractual obligations, in particular for claims for damages or reimbursement of expenses, whether due to impossibility, delay, self-remedy, termination or rescission after withdrawal, regardless of the question of a breach of duty, the degree of fault or the basis of the claim, we shall only be liable for damages caused intentionally or by gross negligence damages. In particular, we shall not be liable for the slightly negligent breach of immaterial obligations arising from the contractual obligation. This limitation of liability shall also apply to our liability for damages caused by employees, representatives and vicarious agents.

8.2

The limitations of liability according to 8.1 do not apply to personal injury, to claims under the Product Liability Act, to the case of fraudulent concealment of a defect or to the breach of contractual obligations. In the latter case, however, the liability is limited to the foreseeable, typically occurring damage.

8.3

If the buyer sells the goods in an unaltered state or after processing, remodeling or combining them with other goods, then in the internal relationship between us, he shall indemnify us against product liability claims of third parties to the extent that he is responsible for the defect causing the liability.

8.4

The provisions of the above sections 8.1 to 8.3 of these GTC also extend to damages in addition to performance and damages in lieu of performance, regardless of the legal basis, in particular due to defects, the breach of duties arising from the obligation or from tort, as well as to indirect damages, as long as the latter is not prohibited by law. They shall also apply to claims for reimbursement of wasted expenditure, including liability for defects, default or impossibility.

8.5

The buyer can only withdraw or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. An unrestricted right of termination for the buyer is excluded. Otherwise, the statutory requirements and regulations shall apply.

1. Final provisions

9.1

The contract shall be concluded and executed in German.

9.2

The contract concluded between us and the buyer is subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

9.3

References to the validity of statutory provisions in these Terms and Conditions are for clarification purposes only. Therefore, the statutory provisions shall apply even without such clarification, unless they are directly modified or expressly excluded in these Terms and Conditions.

9.4

Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Amendments to these GTC are only effective if they have been agreed in writing; this also applies to an amendment of this written form requirement. In the sense of these GTC, “in writing” includes any declaration that has been made at least in text form.

9.5

If the customer is a merchant, a legal entity under public law or a special fund under public law, the courts at our registered office shall have exclusive jurisdiction for all disputes arising out of or in connection with the relevant contractual relationship. We remain entitled to bring an action at the buyer’s place of business.

9.6

Neither party is entitled to transfer its claims arising from the contractual relationship to third parties without the consent of the other party. This does not apply to monetary claims.

9.7

Should one or more provisions of these GTC be or become invalid, the validity of the remaining provisions shall not be affected. The parties shall endeavor to replace the invalid provision with a valid provision that comes as close as possible to the economic intent between the parties.