The following Terms and Conditions (“T&C”) apply to the sale and supply of the Products by the Seller to the Buyer, except as otherwise expressly agreed by the Buyer and Seller, in writing.
2.1. “Buyer” means the party accepting a quotation of the Seller for the sale and delivery of the Products.
2.2. “Conditions” means the standard Terms and Conditions of sale set out in this document.
2.3. “Contract” means the contract for the purchase and sale of the Products. If no separate written contract is agreed and signed between the Seller and the Buyer, the latest quotation of the Seller agreed by the Buyer together with these Conditions shall constitute the Contract.
2.4. “Delivery” means each delivery of the Products.
2.5. “Delivery Place” means the physical location where the Products are delivered.
2.6. “Prices” means those prices quoted for the Products sold by the Seller against the Buyer’s specified requirements.
2.7. “Parties” shall mean the Buyer and Seller.
2.8. “Products” means the non-combustible materials (panels, doors, ceilings and respective accessories) manufactured by the Seller and sold and delivered pursuant to the Contract.
2.9. “Seller” means ELIVK S.A., a societe anonyme organized and existing under the laws of Greece, with legal seat at 12, Filellinon Street, Piraeus, Greece, with General Commercial Reg. No.: 112844508000 and TIN: 094114090.
2.10. “In writing” means a letter handed over from the Seller to the Buyer or vice versa, a registered letter, e-mail or telefax.
2.11. “Working Day” means a day on which banks are open at the Delivery Place and in Greece, if different than the Delivery Place.
3.1. The headings used in these Conditions are included for convenience only and are not to be used in construing or interpreting these Conditions.
3.2. Any reference in these Conditions to any statute, decree, law, statutory instrument or other regulation having the force of law shall be deemed to include any lawful modifications thereto or re-enactments thereof made after the date of these Conditions.
3.3. Should there be any inconsistency or contradiction between these Conditions and any other written contract between the Seller and the Buyer, these Conditions shall prevail.
3.4. In case more than one quotations for the Products exist, the Seller’s quotation with the latest date agreed by the Buyer shall prevail.
4. Basis of the sale
4.1. The Seller shall sell and the Buyer shall purchase the Products in accordance with any written quotation of the Seller which is accepted by the Buyer, subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by the Buyer.
4.2. By accepting Seller’s quotation and/or by placing an order with the Seller, the Buyer shall be deemed to have irrevocably and unconditionally accepted and agreed to these Conditions.
4.3. The Seller’s employees or agents are not authorized to make any representations concerning the Products, unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations that are not so confirmed.
4.4. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
4.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
5. Orders and specifications
5.1. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorized representative.
5.2. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Products within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
5.3. It is the duty of the Buyer to provide properly and timely all necessary instructions and relevant information to enable the Seller to perform the Contract in a proper way. Any person / entity giving instructions / information to the Seller on behalf of the Buyer, either in writing or verbally, warrants that he/it is so authorized. The Seller shall not be bound to follow instructions that are not legal.
5.4. The quantity, quality and description of and any specification for the Products shall be those set out in the Seller’s quotation (if accepted by the Buyer) made as per the Buyer’s order.
5.5. The Seller reserves the right to make any changes in the specification of the Products which are required to conform with any applicable safety or other statutory requirements or which do not materially affect their quality or performance.
5.6. No quotation which has been accepted by the Buyer and no order which has been accepted by the Seller may be cancelled by the Buyer except with Seller’s agreement in writing. In case of such cancelation the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by the Seller as a result of any such cancellation. Without prejudice to the generality of the foregoing, should the Buyer cancel any quotation which has been accepted by him and/or any order which has been accepted by the Seller and/or refuse to accept delivery of any or all of the Products, such action shall constitute a breach of the Contract and the Buyer shall pay to the Seller liquidated damages as follows: a) if the Buyer sends a cancellation notice within 30 Callendar Days from the date of the Contract, an amount equivalent to 30% of the invoiced value of the cancelled quotation / order or 50% of the invoiced value of the Products, delivery of which is so refused (as the case may be); b) if the Buyer sends a cancellation notice within 60 Callendar Days from the date of the Contract, an amount equivalent to 60% of the invoiced value of the cancelled quotation / order or 50% of the invoiced value of the Products, delivery of which is so refused (as the case may be); or c) if the Buyer sends a cancellation notice within 90 Callendar Days from the date of the Contract, an amount equivalent to 90% of the invoiced value of the cancelled quotation / order or 50% of the invoiced value of the Products, delivery of which is so refused (as the case may be). Such liquidated damages shall be paid by the Buyer within 7 Working Days from the date of receipt of Seller’s written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such breach of Contract on the part of the Buyer. For the avoidance of doubt, in the event that the Buyer duly pays such liquidated damages, neither Party shall have any further liability to the other in relation to the Products in respect of which such liquidated damages are paid.
6. Payment Terms
6.1. The price of the Products shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s price list current at the date of acceptance of the order. All prices quoted shall be valid for 30 running days only or such lesser period as shall be stated by the Seller on the face of the relevant quotation, after which time they may be altered by the Seller without giving notice to the Buyer.
6.2. The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Products to reflect any increase in the cost which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labor, materials or other costs of manufacture) or to any change in delivery dates, quantities or specifications for the Products which is subsequently requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions with regards to the Products.
6.3. Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices given by the Seller are exclusive of carriage / transportation and insurance charges. Any such carriage / transportation and insurance cost shall be borne by the Buyer.
6.4. The price is also exclusive of any applicable value added tax that the Buyer shall be additionally liable to pay to the Seller.
6.5. The Buyer shall be liable to pay any and all amounts due to the Seller as per the relevant invoices, in Euro, in full, timely and without any deduction, withholding, or set-off. All bank charges in respect of the payment shall be for the Buyer’s account. The invoices shall be sent via email to the email address designated by the Buyer, with acknowledgment receipt. Unless any objection is promptly raised in writing within 7 running days from the receipt of any invoice, the content thereof (including, but not limited to, the amount charged), shall be considered as fully and unconditionally accepted.
6.6. Unless otherwise agreed, any invoice is payable within 15 running days from the invoice date. Payment should be made by bank transfer to the indicated bank accounts, shown on the invoice.
6.7. The Buyer reserves the right to charge interest 5% per year on invoices outstanding more than 30 running days from the date of receipt until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.8. Apart from the interest charged as per paragraph 6.7 above, if the Buyer fails to make any payment on the due date, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries to the Buyer.
6.9. In the event that the Seller cancels the Contract under paragraph 6.8.1 above, the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller, the Seller shall be entitled to require the Buyer to additionally pay to the Seller by way of liquidated damages an amount equivalent to ….% of the invoiced value of the Contract so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within seven Working Days from the date of receipt of Seller’s written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such cancellation.
6.10. Any special billing requirements (multiple invoices, invoices to third parties etc.) have to be addressed to the Seller in a timely manner and in any case prior to the issuance of any invoice. It is at the discretion of the Seller to accommodate such requests or not.
7.1. Delivery of the Products to the Buyer shall be made at the Seller’s premises (ex factory) at any time after the Seller has notified the Buyer that the Products are ready for collection, unless otherwise is agreed between the Seller and the Buyer. The Buyer shall bear the cost, risk and liability for the transportation of the Products from the Delivery Place to any place the Buyer wishes to install the Products, as well as for the insurance of the Products from the time of delivery.
7.2. Any dates quoted for delivery of the Products are given approximately only. Time for delivery shall not be of the essence, unless previously agreed by the Seller in writing. The Products may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Products at any time.
7.3. Where the Products are delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4. If the Seller fails to deliver the Products for any reason, other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar products to replace those not delivered over the price of the Products.
7.5. If the Buyer fails to take delivery of the Products or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
7.5.1. store the Products until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.5.2. sell the Products at the best possible price and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7.6. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and notifying to the Seller the requirements of any such legislation or regulations requiring action on the part of the Seller and for the payment of any duties in connection with the Products.
8. Risk and property
8.1. Risk of damage to or loss of the Products shall pass to the Buyer:
8.1.1. in the case of Products to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Products are available for collection; or
8.1.2. in the case of Products to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Products, the time when the Seller has tendered notice of delivery of the Products.
8.2. Notwithstanding delivery and the passage of risk in the Products, or any other provision of these Conditions, the property in the Products shall not pass to the Buyer until the Seller has received in full and in cleared funds the price of the Products and all other sums due from the Buyer to the Seller whether under the Contract or as a result of any other liability of the Buyer to the Seller.
9. Warranties and liability
9.1. Subject to the conditions set out below the Seller warrants that the Products will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material and workmanship at the time of delivery.
9.2. The above warranty is given by the Seller subject to the following conditions:
9.2.1. the Seller shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Buyer;
9.2.2. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Products without the Seller’s approval;
9.2.3. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee), if the total price for the Products has not been paid by the due date for payment;
9.2.4. the above warranty does not extend to Products not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
9.3. Notwithstanding the above, acceptance and taking delivery of the Products by the Buyer shall constitute a full performance by the Seller of the Contract and of all its obligations related to the delivery of the Products and thereafter the Buyer shall not be entitled to make or assert any claim against the Seller with regards to the quality or condition of the Products.
9.4. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Buyer, except as expressly provided in these Conditions.
9.5. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Products, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
9.5.1. acts of God, explosions, floods or other extraordinary weather conditions not included in normal planning, earthquakes, fires or accidents;
9.5.2. acts, restrictions, regulations, requirements of governmental authorities, war, sabotage, sabotage, civil disturbance, or requisition;
9.5.3. import or export regulations or embargoes or quarantines;
9.5.4. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
9.5.5. difficulties in obtaining labor materials, parts or machinery;
9.5.6. power failure or breakdown in machinery; or
9.5.7. any other events of unforeseeable nature impeding or delaying the performance of the Contract and/or the delivery of the Products to the Buyer (“Force Majeure Events”).
9.6. In cases of Force Majeure Events the Seller shall notify the Buyer of the occurrence of the Force Majeure Event, shall do its utmost to minimize any delays caused due to the Force Majeure Event, but shall not be held responsible for the delays caused or any non-performance of the Contract and/or the non-delivery of the Products. Without prejudice to any other right or remedy available to the Seller, in cases of delays caused by Force Majeure Events, the Seller shall be entitled, without any liability to the Buyer, to cancel the Contract and return / refund to the Buyer any sums already paid for Products not delivered or suspend any further deliveries under the Contract.
9.7. The Seller shall not be responsible for any loss, damage, expenses of any nature whatsoever or any failure to fulfill its obligations hereunder, if such losses, damages, expenses or failure result in whole or in part from compliance with any court order, demand or request of any international or national governmental, local or other authority.
9.8. Nothing herein shall in any way limit the Buyer’s obligation to mitigate any of its losses.
10. Private and Confidential
10.1. All information, identified as confidential by the Seller or the Buyer, shall be kept strictly private and confidential.
10.2. The Parties shall neither disclose nor communicate to any person (other than their professional advisors or with the prior consent of the other Party or required for the fulfilment of the terms of the Contract) or use or exploit for any purposes whatsoever any of the confidential documents or other information it may receive or acquire as a result of entering into the Contract concerning the Products, the other Party and its activities. Such obligation shall continue to apply even after the performance or cancellation of the Contract.
10.3. The obligations imposed under this paragraph shall not apply to information if same:
10.3.1. is in the public domain at the time it was disclosed or thereafter shall fall into the public domain except through fault of any Party; or
10.3.2. was already known to and recorded by any Party prior to its disclosure to it by the other Party; or
10.3.3. becomes known to any Party from a source other than the other Party without breach of the Contract.
10.4. Where a disclosure of confidential documents or other information as set forth is required by law, or by any other body or authority authorized by law to require the same, or in connection with the resolution of any dispute between the Parties, in order to protect the interests of the disclosing Party in any legal proceedings or arbitration, such disclosure may be made, however to the minimum extent required and only after consultation with the other Party.
11.1. The Contract sets forth and shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede any and all prior quotations, promises, representations, declarations, warranties or other statements, whether written or oral, made by or on behalf of one Party to the other of any nature whatsoever or contained in any document given by one Party to the other concerning the subject matter.
11.2. Each Party warrants to the other that it has not relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to herein.
11.3. The failure of a Party to insist in any one or more instances upon the performance of any provisions herein shall not be construed as a waiver or relinquishment of that Party’s rights to future performance of such provision and the other Party’s obligation in respect of such future performance shall continue in full force and effect. The rights and remedies provided herein do not exclude any rights and remedies provided by law.
11.4. In the event that any one or more of the provisions contained herein shall for any reason be held to be unenforceable, illegal or otherwise invalid in any respect under the law governing these Conditions or their performance, such unenforceability, illegality or invalidity shall not affect any other provisions of these Conditions and these Conditions shall then be construed as if such unenforceable, illegal or invalid provisions had never been contained herein.
11.5. No Party may, except as expressly provided herein, assign, transfer or delegate all or any of its rights, benefits, duties, undertakings or obligations hereunder without the prior written consent of the other Party. In any case, these Conditions shall be binding upon and accrue to the benefit of the successors and the assignees of the Parties hereto.
11.6. Any notice, request, instruction or other document deemed by any of the Parties hereto to be necessary or desirable to be given to the other Party hereto in connection with these Conditions shall be in writing and shall be emailed or mailed by certified mail (return receipt requested).
11.7. The Seller is entitled to revise these Conditions from time to time. Every time a Buyer accepts a quotation from the Seller and/or makes an offer to the Seller for the purchase of Products and such offer is accepted by the Seller, the Conditions in force at the date on which Seller’s quotation is accepted by the Buyer and/or Buyer’s offer is accepted by the Seller, these Conditions will apply to the relationship between the Seller and the Buyer.
12. Governing Law and Jurisdiction
These Conditions shall in all respects be governed and construed in accordance with the laws of Greece. Any dispute, arising out of or in connection with these Conditions shall be referred to the exclusive jurisdiction of the Courts of Piraeus, Greece. However, the submission to this jurisdiction shall not limit the right of the Seller to bring any legal action or proceedings in any other jurisdiction.