General Terms and Conditions of Sale and Delivery of ACTEGA DS

(October 2021)


1.1 These General Terms and Conditions of Sale and Delivery (hereinafter called “General Sales and Delivery Conditions”) shall apply only in relation to customers which are en-terprises in terms of § 14 of the Civil Code (BGB) of the Federal Republic of Germany, , i.e. any natural person or legal entity exercising their commercial or independent pro-fessional activity when purchasing goods (hereinafter called “Customer”).

1.2 These General Sales and Delivery Conditions apply to contracts concluded between ACTEGA DS GmbH based in Bremen and Customers. This includes contracts that are concluded via all sales channels, including orders by email and fax.

1.3 Sale to consumers is excluded.

1.4 The contract language is German.

1.5 In the event that our General Sales and Delivery Conditions are introduced into a trans-action with the Customer, such General Sales and Delivery Conditions shall also apply to all further transactions between the Customer and us unless agreed otherwise in writ-ing.

1.6 Our General Sales and Delivery Conditions shall apply exclusively. Any conditions of the Customer which are at variance hereto or which conflict with our General Sales and Delivery Conditions shall only apply if expressly accepted by us in writing. Customer shall not interpret our silence regarding any terms and conditions which the Customer seeks to impose as acceptance or agreement of them.


2.1 General

2.1.1 Our offers are subject to change and are non-binding unless expressly stated otherwise. Our offers are merely an invitation for the Customer to submit a binding order on this basis. A contract will be formed, also in relation to ongoing business transactions, only if the Customer's order is confirmed by us in writing or text form or, if the goods are deliv-ered. Our order confirmation shall determine the conditions of the contract. In case of immediate delivery our order confirmation may be replaced by an invoice.

2.1.2 The obligation to deliver an item only the category of which has been defined shall not encompass the assumption of a procurement risk. We shall only be obligated to supply goods at hand (Vorratsschuld). We shall not be deemed to have granted a guaranty un-less we have specified a guaranteed property in writing.


3.1 The quality of product samples is only binding to the extent we explicitly agreed in writ-ing to such qualities of the goods.

3.2 We hereby reserve all ownership and intellectual property rights regarding any product samples, illustrations, drawings, data, cost estimates and other documents regarding our products that we provided to the Customer. This does not apply to product samples the Customer has used in the ordinary course of business. The Customer is obligated not to disclose our product samples, data and/or documents listed in the first sentence of this paragraph to any third party without our prior written consent.

3.3 The provisions pursuant to Sections 3.1 and 3.2 shall also apply to documents, drawings or data provided by the Customer. We do, however, reserve the right to make these available to any third parties who are permissibly taking care of our contractual delivery obligations or are our agents or suppliers.


4.1 Unless otherwise agreed to in writing, the quality of the goods is exclusively determined by our product specifications.

4.2 Information on product quality and shelf life including other product information shall only constitute a warranty if we explicitly qualified it as such.

4.3 Our technical advice - whether verbal, in writing and/or tests - is based on current knowledge. It is the Customer’s responsibility to examine the quality and test the goods as to their fitness for a particular purpose. The same is true of potential infringement of third parties’ intellectual property rights, and, in particular, if our goods are mixed with thinners, hardeners, additives or other components not supplied by us.


5.1 Unless otherwise agreed, invoiced amounts are due for payment to our bank account in Euro without any deductions within 14 days of the date of invoice. Alternatively, you can pay by credit card. Any further expenses shall be borne by the Customer. In case of goods being exported, any costs related from the transfer or payments of moneys shall be borne by the Customer to the extent that such arise in the country of the Customer. Irrespective of the place of delivery of the goods, our registered office shall be the place for fulfilment of Customer’s payment obligations. A payment will only be considered to be effected in due time if we can dispose of the money with value date on the due date on the account specified by us. Discounts and rebates are granted only if expressly and specifically agreed. No discount may be deducted if previous invoices which are due have not yet been paid.

5.2 In case of payment default, we are entitled to claim interest in the amount of 9 per cent above the base interest rate of the European Central Bank from the date payment is due without the need for a previous separate demand note or warning. We reserve the right to assert additional damages.

5.3 Any acceptance of an order and the performance of delivery may be made subject to requirements of security deposit or prepayment. We are also entitled to demand pay-ment concurrently with the delivery of the goods.

5.4 In the event that there is any substantial deterioration in the financial situation of the Customer after concluding the contract endangering Customer’s ability to perform its contractual obligations, such as by way of filing for insolvency proceedings by the Cus-tomer, the commencement of insolvency proceedings, an application for a declaration of insolvency or an arrest warrant or, if there is a cessation of payment, which is not based on any right of retention or other rights, we may also withdraw from the contract at any time.

5.5 Any rights of retention or set-off on the part of the Customer shall only exist in relation to those counterclaims which are undisputed or have been determined by final legal judgement unless the counterclaim relates to a breach of a substantial contractual duty (for definition see Section 10.1) on our part. Any rights of retention may be exercised by the Customer, only if its counterclaim arises from the same contractual relationship.

5.6 Payment with bills of exchange is only permitted if and to the extent expressly agreed. In these cases, bills of exchange are accepted on account of the payment due. All dis-count and bill of exchange charges have to be borne by the Customer. For payment by letter of credit, the most current version of the Uniform Rules and Customs for Docu-mentary Credits issued by the International Chamber of Commerce in Paris shall apply.


6.1 All binding delivery dates and terms shall require an express written agreement in order to be valid. If non-binding or approximate delivery dates or terms have been specified, we will use our best efforts to comply with these specifications. Any unilateral require-ments stipulated by the Customer shall not be binding on us unless we expressly agreed to their validity in writing. Transactions for fixed delivery dates must expressly be desig-nated as such and confirmed by us in writing.

6.2 In the event that we do not receive any deliveries or services from our suppliers, or do not receive them properly, completely or in time, for reasons beyond our control and despite a reasonable stock being maintained, or in case of any event of force majeure, we shall inform our Customers timely in writing or in text form. In such case, we are en-titled to delay delivery for the period of the hindrance or to withdraw from the contract in whole or in part in relation to the non-performed part provided that we met our obligation to inform our Customers and we have not assumed any risk of procurement. Force majeure includes strikes, lock-outs, actions of authorities, pandemics, scarcity of ener-gy and raw materials, transport difficulties which are not culpably caused by us, any hindrances to operations which are not culpably caused by us, for example, as a result of fire, water and machine damage, and any other hindrances which in objective terms have not been culpably caused by us. In the event that a delivery date or delivery dead-line is agreed in a binding manner and as result of any event under this Section 6.2 such agreed delivery date or delivery deadline is not met, the Customer may, after the expiry of a subsequent further reasonable deadline, withdraw from the contract with respect to the non-performed part of such contract, if it would be objectively unreasonable for the Customer to continue to be bound by such a contract. Any further rights to claim on the part of the Customer are excluded in such case.

6.3 In the event of a force majeure and/or incomplete, improper or late delivery of our sup-pliers pursuant to Section 6.2 we are entitled – apart from the rights offset forth in Sec-tion 6.2 – to make partial deliveries of the goods, split the available quantity of goods among our Customers, including affiliated companies, at our sole discretion (§ 315 Civil Code (BGB)) or choose to completely postpone delivery. We shall notify the Customer in time in writing accordingly. We will complete the delayed delivery of goods once the force majeure event and/or incomplete, improper or late delivery of our suppliers pursu-ant to Section 6.2 has ended. The Customer’s rights pursuant to Section 6.2 shall re-main unaffected.

6.4 Any claims for damages of Customer due to delays in delivery shall be limited to a maximum amount of 0.5 % of the net delivery price for the goods delayed per complet-ed week of delay, but totalling no more than a maximum of 5 % of the net delivery price. In case such delay relates to a wilful act or gross negligence or a breach of a substantial contractual duty (for definition see Section 10.1), the statutory liability shall apply, how-ever in the event of a negligent breach of a substantial contractual duty such liability shall be limited to damages which are foreseeable and typical in connection with the contract.

6.5 If a Customer sets a reasonable subsequent deadline after a delay in delivery and such deadline expires without performance, the Customer may withdraw from the contract; the Customer shall be entitled to claim damages due to nonperformance to the amount of damage which is foreseeable and typical in connection with the contract and only if such non-performance relates to a wilful act or gross negligence or is a breach of a substantial contractual duty (for definition see Section 10.1).

6.6 The limitations of liability in accordance with Sections 6.4 and 6.5 shall not apply in so far as a contract where time is of the essence is agreed; the same applies if the Cus-tomer may claim that as the result of the delay for which we are responsible, an imme-diate claim for damages should apply instead of performance (§281, section 2 Civil Code (BGB)).

6.7 We shall not be in default delay for as long as the Customer is in default of performance of any obligations it may have towards us, even if resulting from other contracts.

6.8 Unless agreed otherwise, any loading and dispatching takes place on an uninsured ba-sis at the risk of the Customer ex works or ex distribution warehouse.

6.9 We shall determine the means of transport and the transport route. Partial deliveries reasonably acceptable to the Customer are permitted. We shall, however, attempt to take into account the Customer’s preferences in regard to means and route of transpor-tation; however, any additional costs resulting there from - also in relation to agreed free.

6.10 If, when the ordered goods are delivered to the Customer, no representative of the Cus-tomer is present to receive the goods, and if there is no recognisable, secure and locka-ble unloading area/depot at the delivery address which is accessible for delivery, the confirmation of the driver (of the transport company) is sufficient as proof that the goods were delivered in proper condition.

6.11 We do not take back transport packaging and all other packaging; it becomes the prop-erty of the Customer. This does not apply to loaned containers; these are to be returned to us, at our discretion, either empty and in exchange or carriage paid. As far as we are subject to legal obligations to take back and recycle packaging, we offer to take back completely emptied packaging at the operating site or we will name a third party who will dispose of the packaging in accordance with the legal provisions. We waive the ob-ligation to provide information in accordance with § 15 of the German Packaging Act (Verpackungsgesetz).


7.1 Any orders placed with us shall be performed at the agreed prices, and, if no prices have been agreed, at the list prices valid on the delivery date, as displayed on the e-commerce presence. These prices are quoted in Euro, except where otherwise speci-fied, and shall be exclusive of the statutory value-added tax. The value-added tax shall be charged separately in the invoice at the applicable rate of the pertinent tax regula-tions.

7.2 Unless agreed otherwise, the contract prices shall be quoted per kg/net, ex works (EXW) place of production, duty unpaid, for delivery in non-returnable packaging (barrels and containers). If the Customer demands transport by express or air freight, it will be charged any additional costs.

7.3 We are entitled, at our reasonable discretion, to unilaterally increase the prices for our products in the event of an increase in manufacturing, material and/or procurement costs (e.g. for raw materials, wage and non-wage costs, social security contributions as well as energy costs and costs due to legal requirements, environmental regulations, currency regulations, changes in customs duties and/or other public levies) if these di-rectly or indirectly influence the costs of the contractually agreed prices and increase our total costs for the products by more than 10% and if there is more than one (1) month between the contract conclusion and delivery. A price increase as described above is excluded to the extent that the increase in costs for any or all of the aforemen-tioned factors is cancelled out by a cost reduction regarding other of the aforemen-tioned factors in relation to the total cost impact for the products (cost balancing). If the new price is 25% or more above the original price due to the aforementioned price ad-justment right, the customer shall be entitled to withdraw from contracts not yet com-pletely fulfilled with regard to the part of the contract not yet fulfilled. However, he may only assert this right in due course after notification of the increased remuneration.


8.1 We reserve the title of ownership to all goods supplied by us (hereinafter referred to generally as "retention of title goods"), until all our claims arising from the business con-nection with the Customer, including any future claims from contracts concluded at a later time, have been settled. This shall also apply to any balance in our favour, if any specific individual claim or all claims by us are included in a current invoice (current ac-count) and a balance is drawn.

8.2 The Customer shall handle and store all goods subject to retention of title carefully and insure all retention of title goods at its costs adequately in particular against fire, damage and theft. Customer hereby assigns any and all claims against an insurer arising out of a case of damage affecting retention of title goods to us up to the amount of the value of the retention of title goods. We hereby accept such assignment. We are entitled to dis-close such assignment und collect the claims if Customers fails to perform its obliga-tions pursuant to the contracts concluded with us or such performance is delayed.

8.3 The Customer is entitled to resell the delivered goods in the normal course of business. Any other form of disposal by the Customer, and in particular any pledging or granting of any security rights shall not be permitted. If the retention of title goods are not paid for by a third party immediately during the course of resale, the Customer shall sell such only subject to retention of title. Any entitlement to resell retention of title goods shall be extinguished automatically, if Customer’s financial situation permanently deteriorates, at the latest if the Customer ceases to make payment, is in default with any payment in re-lation to us, or an application to start insolvency proceedings regarding Customer’s as-sets is filed or such proceedings actually start. The same shall apply correspondingly if the Customer is part of a group of companies and/or if one of the circumstances de-scribed in the above sentence occurs in relation to the parent company or a holding company of the Customer.

8.4 The Customer hereby assigns in advance all claims, including any securities and sup-plementary rights, which it is entitled against any final purchasers or third parties as a result of or in connection with the resale of retention of title goods. We hereby accept such assignment. The Customer shall not enter into any agreement with its customers which exclude or limit our rights in any manner whatsoever or which render void the advanced assignment of claims. In case of the sale of retention of title goods together with other items, the claim against the third party purchaser shall be deemed to have been assigned to us to the amount of the delivery price agreed between us and the Cus-tomer, to the extent that the individual amounts attributable to the relevant goods cannot be determined from the invoice.

8.5 The Customer shall remain entitled to collect any claims which have been assigned to us until such right is duly revoked by us to which revocation we are entitled at any time. Upon request, the Customer shall provide us with the information and documentation necessary to collect any assigned claims and, insofar as we do not do so ourselves, the Customer shall inform its customers immediately about the assignment of the claims to us.

8.6 If the Customer includes any claims from resale of retention of title goods in a current account relationship with its customers, it hereby assigns to us in advance any recog-nised final balance in its favour which corresponds with the total amount of the claim from the resale of our retention of title goods. We hereby accept such assignment.

8.7 If the Customer has already assigned any claims from the resale of goods delivered or to be delivered by us to a third party, in particular on the basis of non-recourse factoring or recourse factoring or any other agreements, on the basis of which our current or fu-ture rights of security in accordance with this Section could be limited, it shall notify us of such without undue delay. In case of recourse factoring we are entitled to withdraw from the contract and to demand restitution of any goods already delivered. The same shall apply in case of nonrecourse factoring, if the Customer is unable to freely dispose of the purchase price of the claim under the contract with the factor.

8.8 In case of any contractual breach, in particularly in case of default in payment, we are – without us having to withdraw from the contract beforehand – entitled to recover all re-tention of title goods; the Customer is in such case automatically obliged to release such goods to the extent that not only a breach of a minor duty has occurred. In order to be able to determine the stock of goods delivered by us we may at any time during the normal hours of business enter the business premises of the Customer. Recovering re-tention of title goods shall qualify as withdrawal from the contract only if we declare such expressly in writing or if such is required by the mandatory provisions of law. The Customer shall notify us without undue delay in writing of any access of third parties to the retention of title goods or claims assigned to us.

8.9 If the value of the securities available to us under the above provisions exceeds the se-cured claims in total by more than 10 %, we shall, if requested by the Customer, release any security at our choice to such extent.

8.10 Any processing of retention of title goods shall take place for us as the manufacturer in terms of § 950 Civil Code (BGB) without imposing any obligations on our part. If the re-tention of title goods are processed with any other items not belonging to us or are irre-versibly connected with such, we shall acquire co-ownership in proportion to the invoice value of our goods in relation to the invoice value of the other processed or connected items. If our goods are connected with other movable items to form one item, which may be regarded as the main item, the Customer hereby transfers to us in advance co-ownership of such in the same proportion. The Customer shall store for us any goods owned or co-owned by us at no charge. The resulting rights of co-ownership shall apply as retention of title goods. Upon our request the Customer shall at any time provide us with the necessary information for us to claim our ownership or co-ownership rights.

8.11 From the time of cessation of payment by the Customer or in case of the issuing of an application for insolvency of the Customer, the Customer shall no longer be entitled to sell, process, connect or mix any retention of title goods. The Customer shall in such case undertake separate storage and labelling of retention of title goods without undue delay and shall further keep for us on a fiduciary basis any moneys received from as-signed claims arising from the delivery of goods.

8.12 If the above agreed retention of title is not recognised or is only recognised under cer-tain preconditions under the law of the country into which the goods are delivered, the Customer shall notify us of such at the latest upon the concluding of the contract. If the laws of such country do not allow for retention of title or an extended retention of title, but would allow us other rights in similar manner to a retention of title for security pur-poses, we hereby declare, that we shall use such rights in relation to the delivered goods. The Customer shall assist in undertaking all necessary measures (in particular compli-ance with formalities). If and to the extent such other rights serving the purpose of se-curing us do not exist, Customer shall, at our request, provide equivalent other securities. Otherwise, we may demand immediate payment of all outstanding invoices, irrespec-tive of any agreed payment terms.


9.1 The Customer shall immediately inspect the goods delivered upon delivery, for any de-fects regarding their quantity and quality, if necessary and reasonable by a trial process, and shall notify Seller of any defects without delay, but not later than within 14 days of delivery; otherwise, the goods will be deemed to have been approved. We shall be noti-fied of any defects not detectable by such an inspection immediately upon their discov-ery. Any complaints shall be filed in writing specifying the order data and the batch, in-voice and shipping numbers. A complaint not filed in time shall bar the Customer from asserting any claims of noncompliance on grounds of inferior performance. Any hidden defects shall be notified by the Customer immediately after they have become detecta-ble, but not later than within the period of limitation indicated in Section 10.6. Complaints for defects shall always be accompanied by a reasonably detailed description of the de-fect.

9.2 Any notice of defect under Section 9.1 must be in writing. Any notice of defect not complying with the formalities, shall also exclude any right of the Customer to make a claim based on defects.

9.3 Upon the commencement of the processing, connecting or mixing with other goods, the delivered goods shall be deemed to have been duly accepted by the Customer in case of any recognisable defects. The same shall apply in case of the goods being further transported on from the original place of destination.

9.4 In case of any recognisable defect, the respective goods must be left in the transport container, so that we are able to check the correctness of any complaint, unless we ex-pressly waive the right to such by way of written declaration and the Customer ensures the separate storage of the respective goods.

9.5 If justified defects have been notified in time, we shall at our choice rectify the defect or deliver defect-free goods free of charge (subsequent performance). In case of any de-livery recourse (§§ 478, 479 Civil Code (BGB)), the Customer shall have the right of choice. Before sending back any goods, our permission is to be obtained. Any replaced goods shall become our property. If we do not rectify any defect or we do not provide a replacement delivery for the defective goods within a subsequent reasonable deadline set, or if any subsequent performance is not successful (whereby we are permitted to make two attempts), or if we refuse to provide subsequent performance or if such is not reasonable for us, the Customer may in accordance with the provisions of law withdraw from the contract, reduce the price, claim compensation for expenses as well as dam-ages within the terms set out in Section 10. Notwithstanding the right to assert claims for damages in accordance with Section 10, any right to withdraw from the contract or right for a price reduction shall only apply in case of defects which are not insignificant.

9.6 Claims for defects may only be brought within one year upon delivery of the goods. This time restriction does not apply to Sections 10.1 (1) through (8).


10.1 We shall be generally liable only for any wilful act or gross negligence by us or our legal representatives or vicarious agents. Our liability and that of our legal representatives and vicarious agents for minor negligence shall be excluded. The exemption from liabil-ity does not apply to

(1) a breach of a substantial contractual duty; substantial contractual obligations are those obligations which characterize the contract and upon which the Customer may rely.;

(2) breach of any duty in terms of § 241, section 2 Civil Code (BGB), if it would no longer be reasonable for the Customer to accept our performance,

(3) any injury to life, personal injury or injury to health,

(4) the acceptance of any guarantee for the quality of any performance, for the successful performance or for any risk of procurement,

(5) deceit,

(6) initial impossibility,

(7) claims in accordance with the German Product Liability Act (Produkthaftung-sgesetz), or

(8) any other cases of mandatory legal liability.

10.2 To the extent that we cannot be made liable for intentional breach of obligations and there is no case of injury to life, personal injury or injury to health or any other case of mandatory legal liability, we shall be only liable for damage which is typical in connec-tion with the contract and foreseeable.

10.3 Any liability for indirect damage and consequential damage is hereby excluded insofar as such is not the result of a wilful act or gross negligence or a breach of a substantial contractual duty (for definition see Section 10.1).

10.4 Any further liability for damages other than that set out in the above sections shall be – regardless of the legal nature of such – excluded. This shall apply in particular for any claims for damages resulting from fault at the time of the concluding of the contract, due to any other breaches of duties or any claims under torts for compensation for damage in terms of § 823 Civil Code (BGB).

10.5 Any exclusions or limitations of a liability in terms of the above Sections 10.1 to 10.4 shall apply to the same extent in favour of our managers and non-managerial employ-ees as well as our vicarious agents and our subcontractors.

10.6 Any claims of the Customer for damages arising out of this contractual relationship may be brought only within a period of one year from the commencement of the statutory limitation period. This time restriction does not apply to cases pursuant to Sections 10.1 (1) through (8).

10.7 The above provisions shall not constitute a reversal of the burden of proof.

10.8 If damage claims are brought against us by a third party in connection with delivery of our goods, the Customer shall indemnify us, our legal representatives, our employees and our vicarious agents (including but not limited to reasonable legal pursuit and legal defence costs, disbursements, charges, taxation, etc., together with reasonable and ap-propriate advance payments) if (i) the cause of the claim (vis-à-vis us) is within the con-trol and organization of the Customer, or (ii) the cause, based on which the third party brings a claim against us, is within our control and organization, but we are not liable vis-à-vis the Customer in that respect.


We save and process all personal data disclosed by the Customer in accordance with applicable laws and regulations to the extent required for establishing, defining, fulfilling and changing the contractual relationship. By using our e-commerce presence, the Customer grants us the right to use the information and data provided or transmitted to us (including data in connection with customer orders) and the information and data generated on this basis within the scope of the e-commerce presence for the purpose of fulfilling contractual obligations, operating the e-commerce presence, for data anal-yses, in particular for marketing and support purposes, and for fulfilling legal obligations and official orders. This includes in particular the right to transmit the declarations and data of the Customer to a third party, to the extent that this is necessary for the conclu-sion and/or the execution of contracts of the Customer. Our data protection information in accordance with Art. 13, 14, 21 and 77 GDPR can be viewed at: .


Legal compliance and ethically correct behavior are part of our core values. We there-fore expect our Customers to abide by all applicable national and international laws and regulations as well as the UN Global Compact Initiative during our mutual business rela-tionship. This specifically applies to laws and regulations on work environment and em-ployee protection, human rights, prohibition of child labour, criminal corruption and the granting of bribes of all kind, anti-trust and competition law as well as environmental protection laws.


13.1 All goods delivered by us are - unless otherwise agreed - destined for the Federal Re-public of Germany or, if we agreed to delivery to a country other than Germany, to that country as first delivery (Erstlieferland).

13.2 The Customer may need additional governmental approval in order to export certain goods from the country we first delivered to, depending on the nature of the goods, their application or end use. The Customer is solely responsible to check all legal export re-quirements and to strictly comply with all applicable export laws, regulations and trade embargos if Customer intends to export or have exported our delivered goods.

13.3 Upon request, the Customer shall promptly send us - if not prompted within 10 days - the original end-use declaration forms required by the German Federal Office of Eco-nomics and Export Controls. If an administrative authority needs to issue the end-use declarations and these are not yet available, then the Customer shall keep us informed on the status of the applications of the end-use declarations.

13.4 The Customer shall only be allowed to use the delivered goods if he meets the above conditions; otherwise the Customer shall not export the goods and we shall not be obli-gated to deliver the goods.

13.5 The Customer shall ensure that any third party, who receives our goods, abides by Sec-tions 13.1 to 13.4 above.


The contracting parties shall undertake to maintain secrecy at all times regarding all in-formation made available to them in connection with their contractual relationship and which are designated as confidential or are identifiable as business or industrial secrets for any other reasons and shall not be copied - unless required to achieve the agreed contract purpose - nor used in any other way.


15.1 Exclusive place of jurisdiction for any and all disputes arising out of this contract shall be Duisburg, Germany. However, we have the right to also file a lawsuit at the Customer’s general place of jurisdiction.

15.2 The law of the Federal Republic of Germany shall apply to the exclusion of its conflict-of-law provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

15.3 If any of our order confirmations contains a clause from INCOTERMS, the respective applicable provision of INCOTERMS in the latest version shall apply unless otherwise stated in our respective order confirmation.