General Terms and Conditions of Business
1. Scope of Application of these General Terms and Conditions
1.1 All offers, deliveries and services of HARO medical care GmbH & Co. KG (‘HARO’) shall be provided solely on the basis of these General Terms and Conditions; this shall also apply to any future business relationships, even if the application of these Terms and Conditions is not expressly agreed again in the context of such relationships. The Customer shall agree to the application of these Terms and Conditions at the latest upon acceptance of a delivery without objections. Customer Terms and Conditions of Business shall only apply insofar as they are consistent with these HARO General Terms and Conditions; moreover, Customer Terms and Conditions of Business shall not apply, even if HARO raises no specific objections to them.
1.2 Deviations from these General Terms and Conditions shall only be effective if they are agreed in writing or confirmed by HARO to the Customer in writing.
1.3 These General Terms and Conditions shall only apply to HARO’s business transactions with Customers which are entrepreneurs in accordance with Section 14 of the German Civil Code (BGB) or legal entities or special funds under public law.
1.4 HARO’S General Terms and Conditions shall apply in the version applicable at the time of concluding the respective contract with the Customer, which is published on HARO’s website/homepage https://haro-mc.com/.
2. Offer and Conclusion of Contract
2.1 All HARO's offers shall not be binding and shall be subject to the availability of products in the warehouse. Declarations of acceptance by HARO relating to orders placed by the Customer shall require written confirmation from HARO in order to have legal effect. The same applies to changes or additions to an order. Orders from the Customer may be accepted by HARO within 14 days of receipt through a written confirmation of order, confirmation of shipping or delivery of the products ordered. The simple receipt of orders from the Customer shall not constitute the acceptance or confirmation of an order and therefore shall not constitute the conclusion of a contract.
2.2 Illustrations, dimensions, colours, weights or other information relating to the properties of HARO products shall only be binding if this is expressly agreed in writing. Errors and colour differences excepted.
3. Prices
3.1 Unless otherwise agreed, purchase agreements shall be concluded at the prices currently offered by HARO upon receipt of the respective order. HARO shall be bound by the prices given in a specific, non-binding offer provided to the respective Customer for orders for a period of 14 days from receipt of the respective offer.
3.2 Unless otherwise agreed, prices shall be ex-works. The Customer shall bear the costs of shipping using a shipping agent/carrier selected by HARO, including packaging.
4. Transfer of Risk
The risk shall pass to the Customer no later than upon delivery of the products to the shipping agent/carrier or another party responsible for carriage. The risk shall also pass to the Customer insofar as products are stored at HARO’s premises at the Customer’s request or at the premises of a third party commissioned by HARO.
5. Sample Products
5.1 Blueprints, designs and sample templates for presentations and for products or for their packaging, design or layout (hereinafter ‘Sample Templates’) and models, samples, sample panels or products for inspection (hereinafter ‘Sample Products’), which HARO makes available to the Customer for the purpose of sampling, inspection or checking, shall remain the property of HARO, and must be returned to HARO upon request at any time without undue delay and in full together with any copies or reproductions of any kind that have been made. The Customer shall bear the costs of return. The Customer shall not be entitled to retain Sample Templates and Sample Products, regardless of the legal basis, unless the Customer has a counterclaim that has been established by a final judgement, or is acknowledged, undisputed or ready for judgement.
5.2 Third parties may only be given access to Sample Templates and Sample Products with HARO’s prior express written agreement. Modification, display and distribution in any form whatsoever of Sample Templates and Sample Products shall be prohibited without HARO’s prior express written agreement.
5.3 The Customer shall be obliged to store Sample Templates and Sample Products carefully, protect them from access by third parties and insure them appropriately against fire, theft, mains water, vandalism and natural hazards at its own expense.
5.4 If HARO has reasonable grounds to suspect that the Customer has breached any of the obligations set out in sub-sections 5.1 and 5.2 of these General Terms and Conditions, the Customer shall, if requested to do so by HARO, provide complete, correct and detailed information about all breaches of the aforementioned obligations committed by the Customer in this regard during the period of validity within 14 days of such a request. At HARO’s request, the Customer shall provide appropriate evidence in support of the information given. The correctness of the information given shall be certified on oath by a managing director, executive board or administrative board member at HARO’s request and evidence of this provided to HARO on request.
5.5 If the Customer fails to meet or fails to meet in full the obligation to return set out in sub-section 5.1 above within 14 days of receipt of a corresponding request by HARO, the Customer shall, insofar as it is responsible for non-fulfilment of the obligation to return, pay HARO a contractual penalty of EUR 5,000 (in words: five thousand euros) for each further day of non-fulfilment, up to a maximum of EUR 50,000 (in words: fifty thousand euros). For each case of non-compliance with any one of the obligations set out in sub-section 5.2 above, for which the Customer is responsible, the Customer shall pay HARO a contractual penalty of EUR 20,000 (in words: twenty thousand euros), up to a maximum of EUR 100,000 (in words: one hundred thousand euros). Each new 14-day period of non-compliance (long-term breach) shall be deemed to be a fresh independent breach and shall be subject to a further contractual penalty. An objection on the grounds of continuation of a previous breach in the case of breaches of obligations or non-compliance shall be excluded. If there is a dispute as to whether or not the Customer is responsible for a breach of obligations or non-compliance giving rise to a contractual penalty, the Customer shall bear the burden of proving that it is not responsible for the breach of obligation or non-compliance. All other entitlements on the part of HARO to compensation for any further damage and to abstention from further unlawful action shall remain unaffected. The contractual penalty shall be offset against any claims for damages made by HARO. HARO shall expressly reserve the contractual penalty for all cases of acceptance of subsequent acts in fulfilment of a contractual obligation by the Customer. Contrary to Section 348 of the German Commercial Code (HGB), the Customer shall be entitled, in accordance with Section 343 of the German Civil Code (BGB), to apply to a court for a reduction of a contractual penalty it has incurred, if HARO refuses a reduction in a specific case.
6. Rights of Use/Industrial Property Rights/Know-How
6.1 The handover or delivery of Sample Templates and Sample Products or other products ordered shall not constitute a transfer by HARO to the Customer of intellectual property of any kind (in particular no transfer of know-how, copyright, rights to utility models and/or registered designs, patents or other industrial property rights of any kind).
6.2 The handover or delivery of Sample Templates and Sample Products or other products ordered shall not constitute a granting by HARO to the Customer of any right of use or rights of licence of any kind concerning the patentable intellectual property of any kind embodied in the Sample Templates, Sample Products or products ordered (in particular no granting of any rights of use or rights of licence concerning know-how, copyright, rights to utility models and/or registered designs, patents or other industrial property rights of any kind).
6.3 Duplication, reproduction and imitation in any format of Sample Templates, Sample Products and products supplied against an order shall be prohibited without HARO’s prior express written consent.
6.4 Any transfer of intellectual property of any kind (in particular know-how, copyright, rights to utility models and/or registered designs, patents or other industrial property rights of any kind) and the granting of rights of use or rights of licence of any kind thereto by HARO shall require an express written agreement.
7. Lead Time / Part Delivery
7.1 Delivery dates or deadlines shall only be binding if they have been expressly agreed in writing. If a delivery is delayed due to circumstances for which the Customer is responsible, the agreed deadline for delivery or delivery date shall be extended accordingly. In the event of special circumstances and events pursuant to sub-sections 13.1 and 13.2, the provision in sub-section 13 below shall apply.
7.2 The deadline for delivery or delivery date shall be deemed to have been met if the products have been handed over to the shipping agent/carrier or other party responsible for transporting the products by the agreed date or deadline.
7.3 HARO shall be entitled at any time to make a delivery/shipment of products dependent on an advance payment or the payment of a deposit by the Customer and shall inform the Customer of this in written or electronic form prior to delivery/shipment.
7.4 If HARO falls behind with a delivery, the Customer shall be entitled to withdraw from the contract (only with regard to the part of the contract that has not yet been fulfilled) after a reasonable grace period of at least four (4) weeks stipulated in writing has expired without success, and to demand the repayment of any deposits/advance payments made. In the event of special circumstances and events pursuant to sub-sections 13.1 and 13.2, no default shall exist and the provisions in sub-section 13 below shall apply.
7.5 HARO shall also be entitled to make part deliveries to a reasonable extent, taking into account the interests of the Customer.
8. Retention of Title
8.1 HARO shall retain full title to the products that have been delivered by HARO until the Customer has discharged all claims that HARO has against the respective Customer and against companies affiliated to the Customer within the meaning of Sections 15 et seq. of the German Stock Corporation Act (Aktiengesetz).
8.2 If the products delivered under retention of title (hereinafter referred to as ‘Reserved Products’) are mixed, blended or combined with other items, or if the products are processed, the Customer shall assign its claims for repossession and its rights of ownership or co-ownership in the newly produced or resulting items to HARO upon conclusion of the purchase agreement, and shall exercise due commercial diligence in storing these items safely for HARO.
8.3 The Customer may not pledge Reserved Products to third parties or assign them as security. The Customer shall be entitled, however, to resell Reserved Products in the normal course of business, if he also agrees an identical retention of title in the process. To this end, he shall assign all claims arising from the resale or from other legal basis in this context to HARO in full as security. He shall however be irrevocably authorised to collect an assigned claim in his own name on behalf of HARO. HARO shall only revoke this authorisation and disclose the assignment to the third-party debtor, if the ordering party fails to fulfil its payment obligations or if there is a deterioration in the Customer’s financial situation. The Customer shall be obliged, at any time and at HARO’s request, to notify HARO of the amount, reason and debtors of the claims assigned, in written or electronic form, and to provide HARO with all the documentation necessary for collection.
8.4 In the event of any third party action against the Reserved Products, the Customer shall notify such party of HARO’s ownership and inform HARO of such action without undue delay. The Customer shall bear the costs or damages arising in connection with this.
8.5 If a Customer is in breach of contract, in particular if the Customer stops payments or an application is made for the initiation of insolvency proceedings in respect of the Customer’s assets, HARO shall be entitled to take back or mark the Reserved Products and to enter the Customer’s premises or storage rooms/areas for this purpose.
8.6 If the value of the securities available to HARO, in particular on account of the retention of title, exceeds HARO's claims by more than 20% in total, HARO shall release the securities exceeding this amount at the Customer’s request at HARO’s discretion.
9. Payment Terms/Set-Off/Right of Retention
9.1 Unless otherwise agreed in writing, invoices presented by HARO shall be paid no later than 30 days from the invoice date and delivery. Invoices in the direct debit or preauthorised payment method shall be due for payment on the date the invoice is issued. If the applicable deadline for payment is missed, the Customer shall be in arrears without a further reminder. If the Customer defaults on a payment, HARO may charge interest at a rate of 9 percentage points per annum above the base interest rate (Section 247 BGB). If HARO accepts cheques or bills of exchange, this shall only be as conditional payment; HARO shall reserve the right to return cheques or bills of exchange and to request immediate payment or the provision of other security, if there is reason to fear that the cheques or bills of exchange do not provide sufficient security. Discount charges and exchange fees shall be borne by the Customer and shall be due immediately.
9.2 If HARO becomes aware of circumstances indicating that the Customer's financial situation has deteriorated significantly following the conclusion of a contract, in particular if the Customer is in arrears and therefore claims for payment on the part of HARO are at risk, HARO shall be entitled to make deliveries or fulfil orders only against full or part contemporaneous payment or against security, or to demand payment in advance. If the continuation of contracts is unreasonable for HARO in the event of a significant deterioration in the Customer's financial situation, HARO shall be entitled to withdraw from all contracts that have not yet been executed in full or to terminate such contracts with immediate effect.
9.3 The Customer shall be entitled to offset claims by HARO only if the counterclaim is undisputed, acknowledged, has been established by a final judgement or is ready for judgement. This applies accordingly to the assertion of rights of retention on the part of the Customer.
10. Warranty and Liability
10.1 Since delivery takes place in the context of commercial business transactions, the Customer shall inspect the products delivered by HARO without undue delay following their receipt and shall notify HARO in writing of defects and quantity variances no later than three (3) working days after discovering the respective defect. Obvious defects must be reported to HARO no later than three (3) working days following receipt of the products. If defects occur subsequently during the warranty period, which could not have been identified during a careful inspection on receipt of the products, the Customer must notify HARO of such defects in writing within three (3) working days of their discovery, however in any case within the statutory limitation period. If defects are not notified within the time limit, the Customer shall have no rights in respect of such defects. In the event of failure to inspect products immediately upon receipt, the Customer shall have no rights in respect of defects. The Customer shall be responsible for proving the date on which defects or quantity variances are identified or their non-identifiability in the case of a careful inspection on receipt of the products. Changes to deliveries and services made without HARO's consent shall exclude any legal claim to subsequent performance and other warranty claims.
10.2 In the case of legitimate notices of defects, HARO may, at its discretion, either remedy the defect or deliver a defect-free replacement by way of subsequent performance. Defective products must be returned to HARO postage or carriage paid. In the event of a defect, HARO shall bear the costs of the cheapest return shipment by the Customer within Germany. If such subsequent performance (remedying the defect or replacement delivery) does not happen or is unsuccessful on two occasions for reasons for which the Customer is not responsible, the Customer may request the cancellation of the contract (revocation) or reduction of payment (deduction). The Customer shall not be entitled to withdraw from a contract in the event of minor defects. Section 350 BGB shall apply accordingly with regard to statutory rights of withdrawal. Defects shall be remedied and replacement deliveries made without acknowledgement of a legal obligation and shall not interrupt the limitation period for warranty claims in respect of the products.
10.3 The Customer shall bear the full burden of proof with respect to all prerequisites in the case of warranty claims and other claims against HARO, in particular also for the timeliness of a notice of defects.
10.4 Further warranty claims, regardless of their nature, shall be excluded, subject to any claims for damages limited in accordance with sub-section 11.
10.5 A guarantee or commitment regarding the products shall only exist if this is expressly declared by HARO in writing. Product descriptions and advertising claims, regardless of their format, shall not constitute a guarantee or commitment.
11. Limitation of Liability
11.1 HARO shall be liable for any damage, regardless of the legal basis, only if
a) HARO has culpably (i.e. at least negligently) breached a material contractual obligation (cardinal obligation) in a manner that jeopardises the purpose of the contract or
b) the damage was caused as a result of gross negligence or deliberate intent on the part of HARO or
c) HARO has undertaken an express or written guarantee.
11.2 Liability on the part of HARO shall be limited to foreseeable damage that is typical for the contract in the following cases:
a) in the event of a culpable breach of material contractual obligations (cardinal obligations) which is not due to gross negligence or deliberate intent,
b) in the event of a grossly negligent breach of other (non-material contractual obligations) by employees or representatives of HARO, who are not corporate bodies, legal representatives or senior executives, and
c) in the event of undertaking a guarantee, unless a guarantee of the quality of the products has been expressly undertaken.
11.3 In case 11.2 a), liability on the part of HARO to pay damages typical for the contract shall be limited to 10% of the order value of the respective delivery (net, excluding VAT). The aforementioned limitation of liability in terms of amount shall also apply in cases 11.2 b) and c). Furthermore, HARO shall not be liable in cases 11.2 a) to c) for indirect damages, harm caused by a defect or loss of profit.
11.4 In addition to the liability for simple negligence in the event of a breach of a material contractual obligation as set out in sub-sections 11.1 a) and 11.2 a), liability on the part of HARO for damage attributable only to simple negligence shall be excluded.
11.5 Furthermore, HARO’s liability in respect of the Customer based on or in connection with deliveries shall be limited to an amount of 20% of the order value of the respective delivery (net, excluding VAT) in all cases of gross negligence on the part of HARO, unless the limitation of liability in sub-section 11.2 b) already applies.
11.6 Liability on the part of HARO for indirect damages, harm caused by a defect or loss of profit, regardless of the legal basis, shall be excluded.
11.7 The provisions in sub-section 11 shall also apply if a product is only defined by its type.
11.8 The provisions in sub-section 11 shall also apply in the event of any claims for damages by the Customer against corporate bodies, legal representatives, senior executives, employees, sub-contractors, authorised representatives and other vicarious agents of HARO.
11.9 If HARO’s liability is disputed in an individual case, the Customer shall bear the full burden of proof for all the prerequisites of the claim.
11.10 Any liability on the part of HARO to the Customer over and above the provision in sub-section 11 shall be excluded.
11.11 The limitations of liability in this sub-section 11 shall not apply to liability on the part of HARO in accordance with the German Product Liability Act, for injury to life, limb and health, for fraudulent concealment of a defect and the undertaking of a guarantee for the quality of products.
11.12 The Customer shall take all necessary and reasonable steps to avert or mitigate any damage.
12. Return / Return of Products
12.1 HARO shall be obliged to take back products purchased by the Customer only in exceptional cases and only on the basis of HARO’s prior agreement in written or electronic form. HARO shall be willing to take back products against a credit note or alternatively exchange products only under the aforementioned condition.
12.2 Products that are returned to HARO without a prior agreement pursuant to sub-section 12.1 shall not need to be accepted by HARO and may be sent back carriage to pay or destroyed by HARO; destruction shall be usual in the case of products that are no longer usable/are outdated/or have passed their use-by date. HARO shall not accept any liability for return transport. In the event of destruction, HARO shall send the Customer an informal declaration of destruction in written or electronic form.
12.3 If HARO agrees to take back products that have already been shipped, without a legal basis in written or electronic form, as a gesture of goodwill, HARO shall be entitled to a gesture of goodwill discount of 15% of the value of the products and a handling fee of 2% of the value of the products. HARO shall not refund or exchange products that are no longer usable/are outdated/or have passed their use-by date; destruction shall be the usual course of action in the case of such products; HARO shall send an informal declaration of destruction in written or electronic form in such cases. Sterile products, medicines, medical products with special hygiene requirements, any specially manufactured products or products tailored to personal needs, software and diagnostics shall generally be excluded from return.
12.4 Notwithstanding the provisions in sub-sections 12.1 to 12.3, the following shall apply to all returns: The returning Customer shall bear the costs of any returns in Germany and abroad. The Customer shall bear the costs involved in the destruction and disposal of products that are no longer usable/are outdated/or have passed their use-by date. HARO shall reserve the right to charge additional shipping costs, if the order value has changed as a result of the return. The returning Customer shall bear the costs if a return shipment is lost. In this case, the transport and shipping risk shall lie with the Customer.
13. Force Majeure
13.1 Fulfilment of a contract by HARO shall be subject to the proviso that there are no barriers to fulfilment due to national or international regulations under foreign trade law (in particular export restrictions) or any embargoes and/or sanctions, security checks, or official or judicial measures or legal provisions that have come into force after the order has been placed or after the contract has been concluded. Due to the effects of such obstacles on the fulfilment of a contract by HARO, the Customer shall not have any claims or rights in respect of HARO, regardless of legal basis.
13.2 Effects of work stoppages (strikes, lockouts, walkouts), interruptions of operations, restrictions of operations, cases of force majeure (for example, natural disasters, major fire, earthquakes, extraordinary weather conditions or events, terrorism, pandemic events, SARS/COVID-19 etc.) on fulfilment of a contract shall release HARO from its contractual obligations to the Customer for the duration of the aforementioned circumstances or events and to the extent of their effect.
13.3 If particular circumstances or events pursuant to sub-sections 13.1 and 13.2 occur at HARO, HARO shall inform the Customer of such circumstances and events without undue delay. In the cases in sub-sections 13.1 and 13.2 respectively, HARO shall be entitled to deliver products equivalent to the products ordered by the Customer, taking into account the Customer's interests. If special circumstances or events pursuant to sub-sections 13.1 and 13.2 occur at the Customer’s premises, the Customer shall inform HARO of such circumstances and events without undue delay. Should such special circumstances or events last for a period longer than 12 weeks, both HARO and the Customer shall be entitled to withdraw, in full or in part, from existing contracts (only for the part of the respective contract that has not yet been fulfilled) or to cancel such contracts. In this event, the Customer shall not be entitled to claim compensation, reimbursement of costs and expenses of any kind or loss of profit.
14. Disposal of Electrical/Electronic Devices
HARO shall not make any commitments/assume any costs in connection with statutory obligations to take back electrical/electronic devices.
The Customer shall be obliged, in the absence of other arrangements by the manufacturer, to dispose of electrical/electronic devices properly after the end of use or to return them to the manufacturer. Any costs incurred in this respect, which the manufacturer passes on to HARO, shall be charged to the buyer.
15. Traceability
The Customer shall be obliged to ensure the traceability of products delivered by HARO, insofar as such products are subject to the provisions of the German Medical Devices Act, in accordance with the applicable provisions of EU and German law, following their delivery to the Customer.
16. Statutory Limitation / Time Limits on Claims
16.1 The statutory limitation period for all claims by the Customer against HARO, in particular due to material defects and/or defects of title relating to products delivered by HARO, shall be 12 months from the start of the statutory limitation period. The statutory limitation periods shall apply in the case of deliberate and grossly negligent breaches of obligation, fraudulent concealment of defects, claims arising from unlawful acts, the absence of guaranteed characteristics, personal injury and claims under the German Product Liability Act. Section 479 BGB shall remain unaffected.
16.2 Claims by the Customer against HARO and rights of the Customer to alter their legal relationship (for example, rescission, cancellation), regardless of legal basis, shall be excluded unless they are asserted to HARO in writing within three (3) months of the Customer becoming aware of the respective claim or right. All claims by the Customer against HARO and rights of the Customer to alter their legal relationship, in particular due to material defects and/or defects of title in the products delivered, shall also be excluded, unless the Customer has asserted the alleged claim or alleged right to alter the legal relationship in court within three (3) months of a written rejection of the claim or right to alter the legal relationship.
17. Data Protection
HARO shall be entitled to process (in particular to store and use in business transactions) personal data belonging to the Customer and HARO’s contact persons there, which are received in the course of or in connection with the business relationship with the Customer, regardless of whether such data originate from the Customer itself or from third parties, in compliance with the provisions of the GDPR and the Federal Data Protection Act (BDSG) (as amended) and, without any further notice or consent being required, to use such data for future offers, advertising campaigns and other contact made with the Customer. The Customer shall comply with the provisions of the GDPR and the BDSG (as amended) when processing personal data belonging to HARO and the Customer’s contact persons there (in particular storage and use in business transactions).
18. Applicable Law/Place of Jurisdiction/Severability Clause
18.1 The sole place of jurisdiction for any legal disputes arising from or in connection with HARO’s contractual and business relationships with the Customer shall be the registered office of HARO entered in the register of companies at the time the action is brought. The same place of jurisdiction shall apply if the Customer has no general place of jurisdiction in Germany at the time the action is brought.
18.2 The place of performance for deliveries shall be the place from which HARO delivers or ships the products.
18.3 The law of the Federal Republic of Germany shall apply exclusively; with the exclusion of references to foreign or international law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
18.4 Should any provisions in these General Terms and Conditions be or become invalid, this shall not affect the validity of the other provisions.
The English version of the terms and conditions should only be used for information purposes. The German version is legally binding.