1.1. These terms and conditions of sale (hereinafter “Terms”) shall apply to all products – custom made or not – (hereinafter “Products”) sold by Heracles Packaging Co. SA with VAT number 094072019 and with its legal seat in Glyfada, Greece (hereinafter “Seller”) to its customers (hereinafter “Buyer”) and Buyer shall be deemed to accept irrevocably these Terms upon ordering any such Products, unless specifically agreed otherwise in writing between Seller and Buyer. These Terms override and supersede any and all prior agreements, promises, representations, understandings, implications or other statements whether written or oral made by or on behalf of one party to the other of any nature whatsoever as well as additional or deviating terms and or conditions included in the Buyer’s purchase order or otherwise referred to by Buyer or Seller. These Terms, may not be supplemented, amended, varied or modified in any manner except by an instrument in writing signed by both parties.
1.2. Custom made products are the products that are requested by Buyer according to his specifications.
1.3. Ready-made products are the products that are produced or marketed by Seller according to his specifications.
2. Seller’s Commitments
2.1 Seller warrants that Ready-made products shall at the time of delivery conform to the specifications outlined by Seller (hereinafter “Sales Specifications”). All other descriptions, drawings, photographs, illustrations, samples, performance and technical data, dimensions, weights and the like contained in any promotional or technical material issued by Seller shall not be considered as Sales Specifications.
2.2. Seller warrants that Custom made products shall at the time of delivery conform to the specifications outlined in the Product’s drawing and defined in Appendix 1 which is signed by Seller and Buyer and forms an integral part of these Terms (hereinafter “Sales Specifications”), unless specifically agreed otherwise in writing between Seller and Buyer. All other descriptions, drawings, photographs, illustrations, samples, performance and technical data, dimensions, weights and the like contained in any promotional or technical material issued by Seller shall not be considered as Sales Specifications.
2.3. Any and all guarantees given by Seller apply only and exclusively for products supplied or manufactured by Seller, excluding any third party elements introduced in or on the products and provided no alterations have been done by the Buyer.
3. Intellectual Property
3.1 All intellectual property rights of the Seller shall belong to and remain the sole and exclusive property of the Seller and nothing herein shall grant to Buyer title, license or any other right to any intellectual property rights of Seller, unless otherwise expressly provided herein. All rights in and to trademarks, trade names, designs and company names, affixed onto the Products are and shall remain the sole and exclusive property of the Seller. Buyer warrants and undertakes not to challenge the Seller’s ownership rights or in any manner harm or prejudice the validity or enforceability of any intellectual property rights of the Seller.
3.2 Except to the extent manufactured under the instructions of Buyer, Seller represents and warrants that, to the best of Seller’s knowledge, the manufacture of Products does not infringe any patent registered at or valid in the country of the manufacture. Buyer assumes all responsibility for and shall indemnify and hold Seller harmless for any and all damages claimed (including but not limited to reasonable attorney’s fees), as a result of the use of any intellectual property or other rights, including but not limited to technical information, patents, designs, trademarks (registered or not), trade names or parts thereof, printed or fitted on the Products at Buyer’s request.
3.3 Buyer shall not remove, cover, or otherwise obliterate the Seller’s distinctive marks, brand names, company name, trademarks or designs on the Products.
3.4 Without prejudice to the generality of the aforementioned clauses, Buyer acknowledges and agrees that, Seller is and shall remain the sole and exclusive owner of all right, title, license and interest in and to its know-how, trade secrets, ideas, methods, inventions, discoveries, data and technology, either patentable or not, used by Seller in the course of its business activity for the manufacturing of any and all of the Manufacturer’s products (the “Background Technology”).
4. Warranty and Limitation of Liability
4.1 The commitments set out in Articles 2 and 3 above are Seller’s sole warranties in respect of the Products.
4.2 Any other representation or warranty of any kind, express or implied, including but not limited to warranties as to the quality, suitability or merchantability of the Products or fitness for any particular purpose whether arising under statute or otherwise, is excluded.
4.3 Buyer shall comply with all applicable laws and regulations. Buyer shall inspect, at its sole cost and expense, the supplied Products immediately after delivery. If any of the supplied Products are rejected because of nonconformity to Sales Specifications, Seller shall be entitled to replace the Products (or the part in question) free of charge or, at Seller’s sole discretion, refund to Buyer the price of the Products actually received by Seller, but Seller shall have no further liability to Buyer. Failure to give written notice of any such Product deficiency claim within twenty (20) days from the date of delivery and/or use of the supplied Products shall constitute an unreserved acceptance of such Products by Buyer and a waiver by Buyer of all claims in respect of such Products.
4.4 Seller shall not be liable for any damages caused to Buyer or to third parties by the acts or omissions of Buyer.
4.5 To the maximum extent permitted by law, the amount of the liability of Seller in any event whatsoever whether arising from breach of contract or any applicable legal provision including negligence, shall be limited to the price paid by Buyer for the Products with respect to which damages are claimed. In no event shall Seller be liable for loss of profits, loss of business and/or orders, depletion of goodwill (whether direct or indirect), or indirect, consequential, special, punitive, or exemplary damages even though Seller may have been advised of the possibility of such damages or losses and even though such damages or losses are otherwise obvious or reasonably foreseeable.
5. Price and Terms
5.1 Unless otherwise agreed in writing, the price for the Products shall be Seller’s price in effect at the time of shipment. Seller reserves the right, by written notice given at any time before shipment,
(i) to change the previously agreed price, terms and conditions of payment or of transportation or the minimum requirement per shipment; and
(ii) to increase the price of Products if there is any increase in the price or cost of the Products to Seller by virtue of foreign exchange fluctuations, currency regulations, changes in duties or taxes, increase in the cost of raw materials, labor, energy or transport or any other causes beyond the control of Seller.
Buyer’s failure to make written objection to the change or price increase in (i) or (ii) above within fifteen (15) days of the date of receipt of Seller’s notice shall be considered acceptance. If Buyer objects within fifteen (15) days of the date of receipt of Seller’s notice, Seller shall have the option (a) to continue to supply on the terms and conditions in effect prior to the announced change or increase, or (b) to cancel the affected quantities of Products with immediate effect, and shall advise Buyer accordingly within fifteen (15) days from receipt of Buyer’s written objection.
5.2 The agreed price for the Products shall always be exclusive of any value added tax or other similar taxes, duties or imposts levied by any governmental agency (including, but not limited to, those at state or municipal levels) with respect to the Products supplied hereunder. If Seller is required by applicable law or regulation to pay or collect any such taxes, as enumerated in the preceding sentence on the Products supplied hereunder, then such taxes shall be paid by Buyer in addition to the payments of the agreed price for the Products.
5.3 The specific terms of payment shall be those set out in Seller’s invoice or Pro Forma invoice. Any overdue payments shall bear the default interest rate as provided in the applicable law. Buyer shall pay Seller’s reasonable costs of collection, including attorneys’ fees and other legal expenses. Seller may set off any amounts due and payable to Buyer against any amounts due and payable by Buyer.
5.4 The Products will be ordered by Buyer through purchase orders. Orders are not binding for the Seller until and unless they are accepted in writing by the Seller.
5.5 Each order is subject to the Seller’s minimum volume requirements and the lead times specified by Seller.
6. Title, Delivery and Risk of Loss
6.1 Seller shall transfer the Products with good title, free from any liens or encumbrances.
6.2 Until payment in full has been received by Seller for the supplied Products:
(i) title to the Products shall remain with Seller;
(ii) the Products shall so far as practicable be kept separate from other goods on the premises of Buyer so as to be readily identifiable as the property of Seller, and;
(iii) Buyer shall be at liberty to resell the Products in the ordinary course of business or to use the Products in any process provided that such liberty shall be deemed automatically cancelled without the need for notice if Buyer fails to make any payment when it becomes due, or is in default of due performance or observance of any other Buyer’s obligation, or enters into liquidation or receivership.
Seller may then by notice in writing to Buyer cancel the supply of Products.
6.3 Seller shall be entitled to enter upon Buyer’s premises at any time in order to remove any of the Products to which Seller has retained title and/or upon cancellation of Buyer’s liberty to resell or use the Products. For this purpose, Buyer shall afford Seller all reasonable assistance to locate and take possession of the Products and shall promptly place the Products at Seller’s disposal.
6.4 Buyer shall be fully liable and shall indemnify and hold Seller harmless from and against all liability, losses, payments, costs, damages, expenses (including attorneys’ fees and other legal expenses) and other liabilities of whatever nature incurred by Seller as a result of Buyer’s failure to make any payment when it becomes due and/or default in due performance or observance of any other Buyer’s obligation.
6.5 Unless otherwise agreed in writing, the Products shall be delivered Ex Works (EXW) Seller’s premises (2nd Km Giannitson Axou, GR 58100, Axos Giannitson), and Buyer shall bear all risks of loss or damage of the Products from the moment the Products have been placed at Buyer’s disposal at Seller’s premises. Trade terms shall be interpreted in accordance with Incoterms latest edition. Time for delivery shall not be of the essence. All dates quoted for delivery shall be approximate only and the Seller shall not be liable for any delay however caused.
6.6 In case the Products are molds, then they will remain at Seller’s premises (2nd Km Giannitson Axou, GR 58100, Axos Giannitson) throughout the product supply period, unless otherwise agreed in writing. During this period the Buyer bears all risks of loss or damage of the molds and bears the cost of maintenance. Upon completion of the production of the products the Buyer is obliged to receive at his own expense the molds from Seller’s premises. The Buyer, upon written notice, can receive the molds from Seller’s premises at his own expense, within 10 working days from the notice.
7. Force Majeure
Neither party shall be liable for non-performance of its obligations if such non-performance is caused by accident, mechanical breakdown of facilities, fire, flood, natural disasters, pandemic, strike, labor trouble, riot, revolt, war, acts of governmental authority, computer system failures, unavailability of materials, energy or components, delays in transportation or other contingencies beyond the reasonable control of the party affected. In case of force majeure event affecting Seller, Seller’s obligations may be suspended, without liability, for so long as such event occurs but the supply relationship shall otherwise remain unchanged. The decision of Seller as to the quantities of the Products affected shall be final and binding.
8.1 If Buyer fails to perform any of its obligations when due, Seller may, at its option, decline to make further deliveries except for cash, or may recall or defer shipments until such default is remedied, or may treat such default as final refusal to accept further shipments and cancel the supply relationship.
8.2 Seller shall be entitled to demand prepayment or the provision of security before production start, supply of outstanding deliveries or provision of other outstanding services, if such facts become known to Seller which have the potential to jeopardize the making of any payment by Buyer when due.
8.3 The foregoing rights shall be cumulative, alternative and in addition to any right or remedy Seller may have under these General Terms or by law or in equity.
9. Promotional Rights
9.1 Buyer consents and Seller reserves the right to utilize the Custom made products for promotional and marketing purposes, including but not limited to display photos of the Products on its Internet website(s) and social media pages, to present specimens of the Products to third parties’ potential clients.
9.2 Buyer grants to Seller the right and fully paid up and irrevocable license to utilize Buyer’s name, logo(s) and trademark(s) solely and exclusively in connection with such promotional and marketing purposes, in any and all territories and jurisdictions throughout the world,
Seller and Buyer undertake for themselves and for their employees, agents and contractors to keep strictly confidential, not to disclose to any third party and to use only for the purposes under these Terms all information relating to the Products and to the affairs and business of the other Party and its Affiliates, whether such information is disclosed by the other Party or otherwise obtained by the receiving Party as a result of the cooperation of the Parties within the framework of these Terms. This provision shall survive the expiry or other termination of these Terms.
11. Assignability of Rights and Obligations
Buyer shall not transfer or assign or attempt to transfer or assign any of his rights and obligations under these Terms without Seller’s prior explicit written approval.
The failure of a party to insist in any one or more instances upon the performance of any provisions of these Terms shall not be construed as a waiver or relinquishment of that party’s right 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.
13. Severability of Provisions
If any provision of these Terms should be or become invalid or unenforceable, totally or partly, for one reason or another, the validity and enforceability of the remaining provisions shall in principle not be affected thereby.
14. Applicable Law and Dispute Resolution
14.1 Unless specifically agreed otherwise in writing, these General Terms and the supply relationship shall be governed by and construed in accordance with laws of the place of incorporation of Seller. The United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to these General Terms or the supply relationship.
14.2 Unless specifically agreed otherwise in writing, any dispute, controversy or claim arising out of or relating to these General Terms, the supply relationship or the breach, termination or validity thereof (whether contractual or non-contractual in nature) shall be resolved exclusively before the competent courts of Athens Greece.