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General terms and conditions of business

Allgemeine Liefer- und Zahlungsbedingungen
der PCO Group GmbH im unternehmerischen Verkehr


  1. Scope of application
    1. The following General Terms and Conditions of Delivery and Payment apply to all contracts between PCO Group GmbH ("PCO") and (i) entrepreneurs pursuant to Section 14 of the German Civil Code (BGB), (ii) legal entities under public law and (iii) special funds under public law (hereinafter collectively referred to as "Customers"). These General Terms and Conditions of Delivery and Payment do not apply to contracts between PCO and consumers.
    2. These General Terms and Conditions of Delivery and Payment of PCO apply exclusively. Deviating, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and insofar as PCO has expressly agreed to their validity. This requirement of consent applies in any case, for example even if the customer refers to his own terms and conditions in the order and PCO does not expressly object to them. PCO hereby expressly objects to any formal reference to its own terms and conditions. If PCO refers to a letter that contains or refers to the terms and conditions of the customer or a third party, this does not constitute express agreement with the validity of those terms and conditions.
    3. Individual agreements (e.g. concluded framework supply agreements, individual purchase agreements) shall take precedence over the General Terms and Conditions of Delivery and Payment.

  2. Offer and conclusion of contract
    1. Offers from PCO, including the presentation of goods and services, are subject to change and do not constitute a legally binding offer from PCO. By placing an order, the customer submits a binding offer to conclude the contract.
    2. A confirmation automatically generated by the ordering system when an order is placed via PCO's B2B online store that the order has been received (confirmation of receipt) does not constitute acceptance of the offer. The contract is only concluded when PCO expressly declares acceptance of the offer or at the latest upon delivery of the goods or provision of the service.
    3. All information, in particular the information contained in PCO's offers and printed materials or provided in the context of consultations or information from PCO, are only approximate values, unless expressly designated as binding, and are not considered guarantees or quality specifications, unless they are expressly designated as such in an order confirmation or the usability for the contractually intended purpose requires an exact match. Public statements, promotions or advertising by PCO or third parties shall only constitute a description of the quality of the goods if they are expressly stipulated in the order confirmation or by a separate written agreement.

  3. Prices, payment, offsetting, retention
    1. Unless otherwise agreed, PCO's prices are exclusive of the applicable statutory VAT and the costs of delivery, packaging and assembly.
    2. PCO may change the price list at any time.
    3. PCO's invoices are payable within 10 days of the invoice date without deduction, unless otherwise agreed in writing.
    4. In the event of late payment, PCO will charge interest at a rate of 9 percentage points above the respective base interest rate in accordance with § 247 BGB (German Civil Code) p.a., unless PCO can provide evidence of higher damages. Furthermore, PCO is entitled to postpone the dispatch of further deliveries until all due invoices have been paid.
    5. In the event of justified doubts about the customer's ability to pay, in particular in the event of payment arrears, PCO may, subject to further claims, revoke payment terms granted and demand immediate payment of all deliveries or the return of the delivered goods by way of security, as well as demand advance payment or security for goods still to be delivered or withdraw from the contract entirely at PCO's discretion.
    6. The assertion of a right of retention by the customer or the offsetting of claims other than undisputed or legally established claims against due claims of PCO is expressly excluded.

  4. Transfer of risk, delivery and performance
    1. Unless expressly agreed otherwise, the dispatch or delivery of the goods shall be at the customer's expense and risk, even if it is carried out by PCO's own vehicles, by agents or other vicarious agents of PCO.
    2. In the event of default of acceptance or other culpable breach of obligations to cooperate on the part of the customer, PCO is entitled to compensation for the resulting damage, including any additional expenses. Further claims remain reserved.
    3. Circumstances that make the production or delivery of sold goods or the provision of services impossible or excessively difficult, as well as all cases of force majeure (including pandemics), official measures, operational and traffic disruptions and the like, also insofar as they affect PCO's suppliers (non-availability of service), release PCO from the obligation to deliver or perform for the duration of the hindrance and its after-effects as well as a reasonable start-up period thereafter. Non-availability of the service exists, for example, if PCO's suppliers fail to deliver to PCO in good time, if PCO has concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure (including pandemics), official measures or operational and traffic disruptions and the like. If the impediment to performance is not only temporary or lasts longer than two months as a result of force majeure, PCO and the customer are entitled to withdraw from the contract. In this case, PCO is not obliged to make (partial) delivery and the customer is not obliged to provide (partial) consideration and the customer will immediately receive back any advance payment made by him; he is not entitled to any claims for damages.
    4. Deadlines and dates for deliveries and services promised by PCO are always only approximate, unless PCO has expressly promised a fixed deadline or a fixed date. Fixed trade purchases in accordance with § 376 HGB require the express written consent of PCO.
    5. PCO is entitled to make partial deliveries and render partial services insofar as this is reasonable for the customer.
    6. If shipment is delayed at the customer's request, the customer shall bear the costs of 0.5% of the invoice amount for each month of storage in PCO's factory or warehouse.
      of storage.
    7. If transportation aids (e.g. pallets) or other items are loaned to the customer, these remain the property of PCO and must be returned to PCO, including the original packaging, complete and cleaned at the end of the period of use. The place of fulfillment is the registered office of PCO.

  5. Duty to inspect, warranty
    1. The law shall apply to any warranty claims of the customer, unless otherwise stipulated below.
    2. Any claims for defects shall not exist in the event of only insignificant deviations from an agreed quality or in the event of only insignificant impairment of usability. Deviations of the ordered or delivered goods from the order, in particular with regard to material and design, color and/or weight, do not constitute a defect within reasonable limits. There may be color differences between presentations and goods, which also do not constitute a defect within reasonable limits. Only genuine samples are binding. Claims for defects on the part of the customer shall only be considered if the customer can prove that the cause of the defect already existed at the time of the transfer of risk.
    3. The customer's claims for defects presuppose that he has properly fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later point in time, the customer must notify PCO of this immediately in writing. In any case, obvious defects must be reported in writing within 3 calendar days of delivery and defects not recognizable during an inspection within the same period of time from discovery.
    4. Complaints and objections must be made to PCO. Complaints and objections to third parties, e.g. commercial agents or carriers, do not constitute complaints or objections in due form and time.
    5. If justified material defects in the delivered goods are reported in good time, PCO is entitled - at its discretion and within a reasonable period of time - to take back the defective goods and replace them with goods in accordance with the contract or to repair the delivered goods, if possible and reasonable for the customer. PCO is entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable portion of the purchase price in relation to the defect. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.

  6. Statute of limitations
    1. The limitation period for customer claims arising from material defects and defects of title is one year from delivery or, if acceptance is required, from acceptance.
    2. This period shall not apply to claims for damages by the customer due to intentional or grossly negligent behavior, for guaranteed characteristics, due to injury to life, limb or health or under the Product Liability Act, which shall in each case become statute-barred in accordance with the statutory provisions.

  7. Liability
    1. PCO's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with this section, insofar as fault is involved.
    2. PCO shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver and install the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as obligations to provide advice, protection and care that are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer's personnel or to protect the customer's property from significant damage.
    3. Insofar as PCO is liable for damages in accordance with the above paragraph, this liability is limited to damages that PCO foresaw as a possible consequence of a breach of contract upon conclusion of the contract or should have foreseen if it had exercised due diligence. Indirect damages and consequential damages resulting from defects in the delivery item are only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended. The above provisions shall not apply in the event of intentional or grossly negligent conduct by members of PCO's executive bodies or senior executives.
    4. In the event of liability for simple negligence, PCO's obligation to pay compensation for material damage and any resulting further financial losses is limited to an amount of EUR 5,000,000.00 per claim, even in the event of a breach of material contractual obligations.
    5. The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of PCO.
    6. Insofar as PCO provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.
    7. The limitations of this clause do not apply to PCO's liability for intentional or grossly negligent behavior, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

  8. Retention of title
    1. Until full payment of all current and future claims arising from the individual contract and an ongoing business relationship (secured claims), PCO retains ownership of the goods sold in the case of purchase contracts.
    2. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform PCO immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to PCO (e.g. seizures).
    3. Until revoked, the customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
    4. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of PCO's goods, whereby PCO shall be deemed the manufacturer. If, in the case of processing, mixing or combining with goods of third parties, their right of ownership remains, PCO shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
    5. The customer hereby assigns to PCO as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of PCO's possible co-ownership share in accordance with the above paragraph. PCO accepts the assignment.
    6. In addition to PCO, the customer remains authorized to collect the claim. PCO undertakes not to collect the claim as long as the customer fulfills his payment obligations to PCO as agreed and there is no deficiency in his ability to pay. If this is the case, however, PCO may demand that the customer informs PCO of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, PCO is also entitled to revoke the customer's authorization to resell and process the goods subject to retention of title.
    7. If the realizable value of the securities exceeds the claims of PCO by more than 10%, the securities shall be released at the request of the customer at the discretion of PCO.

  9. Food monitoring / sampling
    1. If samples of the goods sold by PCO are taken at the customer's premises as part of food monitoring, the customer is obliged to ensure that the inspector leaves behind an officially closed or sealed counter sample for each sample.
    2. The customer is obliged to store the counter sample properly and to keep it as long as possible. The customer is obliged to inform PCO immediately of the sampling, enclosing a copy of the tester's receipt.

  10. Confidentiality
    1. The customer undertakes to keep confidential all business secrets within the meaning of § 2 GeschGehG and all operational matters of a confidential nature of PCO that become known in the course of the business relationship. This obligation shall continue to apply after termination of the business contact or contractual relationship.
    2. Business matters of a confidential nature are such information (i) which is designated as such in writing or orally, or (ii) which is obviously recognizable as such, or (iii) the confidentiality of which results from the circumstances or its nature. Business matters of a confidential nature do not necessarily have commercial value.

  11. Applicable law, place of jurisdiction, place of fulfillment
    1. The relationship between PCO and the customer is subject to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.
    2. The place of jurisdiction for all disputes in connection with the delivery transaction is either Hamburg or Lübeck, at PCO's discretion, and Lübeck exclusively for legal action by the customer. Statutory regulations on exclusive jurisdiction remain unaffected.
    3. The place of fulfillment is Dassow.

Status: June 2024