Index:
I. Scope of the terms and conditions
II. Offer and conclusion of contract / order confirmation- offer documents
III. Prices and terms of payment
IV. Terms of delivery and time of performance
V. Payment of the purchase price/due date/default
VI. Quality/dimensions/quality criteria/transport routes
VII. Notices of defective products/repair
VIII. General limitation of liability/limitation period
IX. Guarantee by way of retention of title
X. Place of performance
XI. Autonomy clause of the provisions
XII. Applicable law/ material and territorial jurisdiction
XIII. General provisions
I. Scope of the terms and conditions
1) These Terms and Conditions (hereinafter referred to as the “Terms and Conditions”) apply to all legal business transactions with natural persons or legal entities or associations of persons having legal capacity according to the provisions of the Greek Civil Code in the context and in exercise of their commercial or professional activity.
2) The following Terms and Conditions form an integral part of all contracts concluded by the Company. They also apply to all future transactions, even if this has not been explicitly agreed. Special terms and conditions apply to distance sales or online transactions, which are also mentioned in the present General Terms and Conditions. Any contrary or deviating terms of the counterparty ("client" or "customer" ) do not apply, even if the Company has not expressly stated its opposition to them. The present Terms and Conditions apply exclusively, without prejudice to any more specific agreements between parties which shall have priority over the present Terms and Conditions. Finally, they shall also apply to oral commercial transactions, provided that BayWa r.e. refers to the application of these Terms and Conditions.
II. Offer and conclusion of contract / order confirmation- offer documents
1) The customer's order, if it meets the conditions of Article 185 Greek Civil Code, is a binding proposal for him, which the Company can accept within fourteen (14) days, unless a longer acceptance period has been agreed, either by sending written acceptance or by executing the order and delivering the products. The Company's offers to the customer are not binding unless expressly characterized as such.
2) For certain product categories the customer will be provided with the ability to order through the BayWa Webshop application, which terms of use will be communicated to the customer. The Company reserves the right of acceptance or non-acceptance of the customer's order by written notification to the latter.
3) The design services provided by BayWa r.e. are part of the contract only if expressly agreed.
4) The conclusion of the contract is subject to the further condition that no obstacles arise from national or international regulations, in particular export control regulations, embargoes and other sanctions. Any deliveries or services in performance of concluded contracts shall be executed under the prerequisite that the above obstacles will not appear.
5) The Company reserves the property rights and copyrights to illustrations, drawings, diagrams, calculations and developed software (hereinafter referred to as Confidential Information). This also applies for the publication of the above Confidential Information and any document marked as "confidential" by electronic means. The above Confidential Information should be treated as such and must not be made accessible to third parties without prior consent of BayWa r.e. The above obligation of confidentiality applies regardless of whether the Company has expressly designated such Confidential Information as confidential.
6) The above obligation of confidentiality does not apply to cases expressly provided for by law. In any case, the customer must inform BayWa r.e. of the existence of a legal obligation of disclosure of Confidential Information as soon as it becomes aware thereof.
7) Drawings, illustrations, measures, weights, or other data relating to products or benefits of the Company are only binding on it, if they have been expressly agreed in writing. For the rest, it is noted that technical deviations of these elements might occur, e.g. color variations etc.
III. Prices and terms of payment
1) The prices stated by BayWa r.e. in its offers and/or order confirmations are valid ExWorks (INCOTERMS 2020), unless otherwise provided for in those documents. Price offers set by BayWa r.e. are net prices and do not include the legally applicable Value Added Tax (VAT). Moreover, they do not include recycling fee, packaging and transport costs nor insurance premiums (transport insurance). If BayWa r.e. is obliged to conclude transport insurance, this will be done at the customer's cost.
2) The customer is obliged to pay the agreed price. If at the time of fulfillment the price is increased due to change in market prices or due to an increase in third party fees that enter into the fulfillment, the higher price applies. If the rise is of twenty percent (20%) or more, then the customer has the right to withdraw from the contract. The right of withdrawal must be exercised immediately after the notification of the increased price, i.e. within five (5) working days, otherwise it shall be deemed that the customer tacitly approves and accepts the increased price.
3) Moreover, Value Added Tax which applies on the day of invoicing is added to the prices. In case of VAT exemption, the customer shall ensure that the required supporting documents are collected by proceeding to lawful actions before the competent tax and customs authorities.
4) The total amount must be paid before receipt of products, unless otherwise agreed in writing. For agreements other than sale, the time of payment is set by a separate agreement. The method of payment is determined by the Company. If, after the conclusion of the contract, the customer fails to fulfill its payment obligations as defined by the Company or payments are made late or are interrupted, or if the customer requests postponement or specific circumstances arise that raise reasonable doubts about the customer's creditworthiness, BayWa r.e. shall have the right to make the execution of any of its pending obligations subject to provision of security or, at the customer’s discretion, the pre-payment of the total amount due. In case of default of the customer governed either by legal provisions, unless defined differently in the agreements between BayWa r.e. and the customer, or by the present Terms and Conditions, including the obligation to pay, the customer is obliged, at the end of the due date, to pay the statutory interest for late payment under Articles 341 and 345 et seq. Greek Civil Code.
5) BayWa r.e. is entitled to set off all claims it has against the client with those of the client against it regardless of their legal basis. This applies even in cases where mutual claims are based on different legal relationship/basis. The customer is not entitled to set off any claims against the Company, unless such claims have been established by a final court decision or have been recognized by BayWa r.e.
IV. Terms of delivery and time of performance
1) Unless otherwise agreed, EXW (EX WORKS) (INCOTERMS 2020) is defined as the agreed mode of delivery. Unless otherwise agreed, the place of delivery shall be the warehouse of BayWa r.e. in Attica.
2) Delivery dates and deadlines are agreed upon bindingly only in writing.
3) In cases where no agreement has been concluded on delivery periods, BayWa r.e. undertakes to deliver the goods within sixty days (60) days from the entry into force of the purchase contract or from the ad hoc delivery request submitted by the customer. The delivery period shall commence with the transmission of the order confirmation - where applicable, in accordance with the time limit specified therein - or, in the absence of an order confirmation, with the acceptance of BayWa r.e.' s offer by the customer or the acceptance of the customer's proposal by BayWa r.e. Moreover, the delivery period shall not commence until the required documents, approvals, etc. have been delivered to the Company by the customer and any advance payments due under these Terms and Conditions or individual contracts have been paid to the latter.
4) The time limit for delivery shall be deemed to have been observed and delivery shall be deemed to have been completed if, before the expiry of that time limit, the goods to be delivered have either been removed from the place of delivery referred to in paragraph 1 or, in cases where the customer is required to take delivery of the goods, the customer has been notified that the goods are ready for collection.
5) The Company shall not be liable for delays in delivery and provision for reasons of force majeure as established by law or due to events that make delivery or provision difficult or impossible. These events include in particular the following: fire, strike, lockdown, industrial dispute, legislation, governmental regulation or restriction, general power outage, riot, civil war, pandemics or epidemics, coup d'état, international hostilities or war or any other cause beyond the Company's control and occurring without its fault or negligence, expressly including delays of suppliers, partners, subcontractors or any third parties with whom the Company does business in any form. The exemption from liability under the above applies even if binding deadlines and dates have been agreed upon. The Company reserves the right to extend the time limit for delivery or performance for as long as the impediment lasts beyond a reasonable period of three (3) months, after which it may either withdraw from the contract in full or partially in respect of the uncompleted obligation. If the impediment due to force majeure as referred to above lasts for a period of more than three (3) months, the customer is entitled, after the expiry of a reasonable time period set by him, to withdraw from the contract in respect of the unfulfilled part of the contract. In this case the customer shall not be entitled to claim damages or any other kind of financial compensation due to an extension of the time of delivery or performance or if the Company is released from its obligations in accordance with the above. This shall also apply in cases where BayWa r.e. is not liable for delayed delivery for reasons other than force majeure.
6) In any case, the contractual obligations of BayWa r.e. are subject to the timely and correct supply of goods. The aforementioned reservation of timely and correct supply on the part of BayWa r.e. shall apply provided that BayWa r.e. has concluded the respective supply contract on time and/or that BayWa r.e. is not liable for any delay in supply by its suppliers. If the interruption of performance under the aforementioned circumstances lasts for a period of more than one month, the customer shall be entitled, after the expiry of a reasonable time period set by it, to withdraw from the part of the contract that has not yet been fulfilled if the customer considers that the delay in delivery is no longer acceptable.
7) The Company always reserves the right to partial delivery or supply, provided that the customer is not charged with further costs and expenses.
8) The fulfilment of the delivery and supply obligations presupposes the valid and regular fulfilment of the customer's obligations. In any case, the delivery deadlines shall be extended by the period during which the customer fails to fulfil its obligations towards BayWa r.e. and BayWa r.e. reserves the right to withhold these as a result of such failure on the part of the customer and shall exercise this right without further notice.
9) If the customer delays the acceptance or violates other contribution obligations, BayWa r.e. is entitled to claim compensation for any damages caused as a result of this, including any additional costs. In such cases, the risk of loss and the risk of price changes, including, in particular, the risk of accidental destruction or damage to the sold goods - passes to the customer. Further contractual or legal claims are also reserved for the Company.
10) If the customer does not accept/receive the goods within the agreed delivery period, BayWa r.e. will be entitled to charge him with storage and financing costs starting from the second week after the expiry of the deadline. The storage and financing costs correspond to the liquidity costs and space requirements for solar modules that normally result from late payments and prolonged storage.
11) In cases where BayWa r.e. arranges the transport of products or goods for the customer, BayWa r.e. shall not be liable for the execution of the delivery, the carrier or any other transport company involved in this activity. This applies in particular regarding compliance with the delivery deadline by the delivery service in question, the carrier or any other transport company. However, at the customer's request, and provided that there is a demonstrable corresponding discrepancy between the scheduled delivery time and the actual delivery time, BayWa r.e. shall refund to the customer any additional charges received for delivery on a fixed date or for expedited delivery.
V. Payment of the purchase price/due date/default
1) As stated above, unless otherwise indicated in the order confirmation, delivery shall be agreed "EXW (ex works)", i.e. with transfer of risk to the customer at the Company's premises as referred to in Article IV.1. In this case, and unless a separate agreement has been concluded regarding the delivery period, the customer shall receive delivery of the goods without delay as soon as the latter receives notification that such goods are ready for shipment. If the customer fails to do so, BayWa r.e. shall be entitled, at its sole discretion, either to dispatch the goods at the customer's expense and risk or to store them and charge the customer for the storage costs incurred from the eighth day after the breach of the obligation to receive delivery. Article IV.9. of these Terms and Conditions shall also apply in this respect.
2) In the case of a sale with delivery at a place other than the place of performance, the risk of accidental loss, destruction or damage and the risk of non-payment shall be transferred to the customer upon delivery of the consignment to the person carrying out the transport. The Company is entitled to refuse the shipment of the products, in case the carrier, indicated by the customer, uses a means of transport that does not meet the minimum requirements of the law for lawful transport (indicatively if the payload of the means of transport is less than the weight of the products, if the volume of the means of transport is less than the volume of the products and in general if the means of transport does not comply with the Company' s instructions and the provisions of the law).
3) To the extent that BayWa r.e. has concluded a contract of insurance for the carriage of goods and the customer has fulfilled the obligation to pay BayWa r.e. in full for the goods insured for carriage, BayWa r.e. will assign its claims against the insurer to the customer to the extent permitted by law and the insurance contract, unless such assignment is not permitted under the terms of the insurance contract, the provisions issued by the insurer, the Greek legislation on insurance contracts (Law 4364/2016 as it stands amended) or other relevant legislation.
VI. Quality/dimensions/quality criteria/transport routes
1) The quality and dimensions of the products which are the subject of the commercial transaction are governed by the ELOT and ISO standards or material data sheets, certificates etc. and other specific standards and calculations relating to specific products, insofar as no other standards, in particular international standards, have been agreed or are not part of the content of the offer or order confirmation issued by BayWa r.e.. In the absence of ELOT standards or material data sheets, certificates or similar, the relevant European standards and, in their absence, normal commercial practice shall apply. Individual agreements on the condition of the products which are the subject of the commercial transaction shall always take precedence.
2) Any reference to standards, material data sheets or factory test certificates of any kind and/or description of contractual deliveries with corresponding specifications does not constitute a guarantee of the properties of the product. Even to the extent that the delivery or service is intended for a specific type of use by the customer and forms part of the contract, it shall likewise not constitute an assurance as to the properties of the product. In the absence of express written statements in the relevant commercial documents issued by BayWa r.e., BayWa r.e. will have no obligation towards the customer regarding any kind of guarantees or assurances of the properties of the product.
3) Any liability from representations about product qualities or warranties is excluded in any case where such liability is not based on an express written assurance by BayWa r.e.
4) Unless expressly stated otherwise, BayWa r.e. may, at its reasonable discretion, choose or determine the transport route and means of transport for the shipment of the products that are the subject of the commercial transaction.
VII. Notices of defective products/repair
1) The Company is obliged to deliver products without actual defects in construction or materials according to article 535 of the Greek Civil Code (hereinafter referred to as CC).
2) The sold product is free of defects if it meets the subjective requirements of responsiveness (Article 535A CC) and installation requirements (Article 536 CC) at the time of the transfer of risk. However, it is not necessary for the goods sold to meet the objective requirements of Article 535B CC for them to be considered free of defects if and to the extent that the customer and BayWa r.e. have agreed on the subjective requirements of the goods supplied. In the case of goods with digital elements, the Company's liabilities are defined in Articles 538 and 540 CC.
3) The Company is not responsible for the normal wear and tear of the product.
4) If the manufacturer's operating and maintenance instructions are not followed, if modifications are made to the products, parts are replaced or consumables are used that do not meet the specifications of the original products, then claims for defects in the products are deductible, unless the customer proves that the defect is not related to any of the above.
5) The customer is obliged to thoroughly check the products immediately after delivery and to inform the Company in writing of any defects. Obvious defects must be notified without delay. The date of receipt of the notification of the existence of a defect by BayWa r.e. shall be decisive. Defects which cannot be detected within this period, even through the most careful inspection, must be notified immediately after their discovery, with immediate interruption of all processing of the goods to be delivered to the Company. If the Company is not notified in good time, the customer shall be excluded from exercising the warranty claims, unless BayWa r.e. has fraudulently concealed the relevant defect. The customer bears the full burden of proof of all the conditions of his claim, in particular the defect itself, the time of discovery of the defect and the timeliness of the notification of its existence.
6) For defects that have been reported in a justified and timely manner, BayWa r.e. will proceed as follows, either to repair or replace the goods, at its sole discretion.
7) If the customer is obliged to install or remove the purchased item as part of a subsequent obligation towards its own customer, the customer must give BayWa r.e. the opportunity to carry out the installation itself or to hire a third party to do so. Failure on the part of the customer to provide BayWa r.e. with the aforementioned possibility will result in all costs required for such installation/removal being deemed unnecessary.
8) If the after-sales performance fails, the customer may, in principle, at his discretion, either request a reduction of the charges or withdraw from the contract. However, the customer has no right of withdrawal if the breach of such contract and particularly the defect in question is minor in nature. If the customer claims compensation for damages caused after a failed subsequent performance of the sale and through the respective fault of BayWa r.e., the goods shall remain in the possession of the customer, if BayWa r.e. so reasonably requests.
9) If the customer does not provide BayWa r.e. without undue delay with the opportunity to inspect the defect and in particular if the customer does not make available without undue delay the object of the contract to which the complaint refers or samples or parts thereof, if requested, BayWa r.e. shall be entitled to refuse to satisfy the claims under the customer's warranty until BayWa r.e. has inspected the purchased object. This shall not apply in cases where BayWa r.e.'s ability to inspect is hindered by circumstances beyond the customer's control.
10) If the customer makes a claim for defects that do not exist, BayWa r.e. will be entitled to compensation for the costs incurred in the examination and processing of this claim. This expense shall be invoiced in the minimum amount of one hundred (100) euros.
11) For contract items sold as second-rate material, the customer is not entitled to after-sales service or other warranty claims in respect of predetermined defects or defects that are normally to be expected.
12) Any further indefeasible claims of the customer regarding liability for defective products shall not be affected by these provisions.
13) The Company assumes the cost of any transportation, travel, labour, assembly or material costs incurred during the performance following the sale, provided that such costs cannot be attributed to the fact that the customer has transported the purchased item to a location other than the place of delivery. The cost of the expenses arising from such an action on the part of the customer shall be borne by the latter.
14) Only the contracting customer retains claims against the Company for defects. These claims cannot be assigned to third parties to whom the customer may transfer the products.
15) The period for making claims for defects is one year from the delivery of the products.
VIII. General limitation of liability/limitation period
1) To the extent not otherwise specified in these Terms and Conditions or in the absence of mandatory legal provisions to the contrary, BayWa r.e. shall only be liable for damages caused by breach of contractual or non-contractual obligations in cases of fraudulent intent or gross negligence. Liability for both slight and gross negligence on the part of BayWa r.e.'s employees is excluded, unless the claim in question is due to death, physical injury or damage to health or a breach of an essential contractual obligation. An essential contractual obligation in this context is defined as an obligation the performance of which is strictly necessary for the proper performance of the contract and on the observance of which the customer can normally rely. The exclusion/limitation of liability provided for herein also applies to damages caused by default or delay.
2) To the extent that the limitation or exclusion of indemnity liability applies to the Company, it also applies with respect to the personal indemnity liability of the Company's officers, employees, agents and vicarious agents.
3) In cases of slight negligence, as defined in paragraph 1 of this Article, the liability of BayWa r.e. shall not cover damages that could not have been expected in an ordinary manner during the course of the commercial transaction in question, unless the claim in question is made due to death, bodily injury or damage to health. Liability for consequential damages due to defects is excluded in all cases of slight negligence and, otherwise, also for gross negligence to the extent permitted by law.
4) All claims for defects against BayWa r.e. are subject to a limitation period of two years from delivery, unless BayWa r.e. has granted a different (longer) limitation period in writing in the individual case (Articles 554 et seq. CC).
IX. Guarantee by way of retention of title
1) Until the fulfilment of all claims (including claims of current account balance) that the Company holds against the customer from any legal cause, including current claims that become due at a later time and conditional claims as well as payments made for specifically defined claims, the Company is provided with the following safeguards (retention of title), which it can release at its absolute and uncommitted will if requested. The same applies in the case of rolling invoicing, where the retention of title serves as security against BayWa's claim for the remaining amount.
2) All physical services and deliverables (products/goods) remain the property of the Company (retention of title). Products which are owned or co-owned by the Company, will henceforth be classified as retained goods.
3) BayWa r.e. may at any time prohibit the sale and/or combination and/or mixing of items subject to retention of title if the customer does not fulfil his payment obligations and/or has payment difficulties or becomes insolvent.
4) Processing or transformation of the product subject to retention of title is always carried out in favour of the Company as the manufacturer, without any obligations for the Company. The processed item shall be deemed to be the item subject to retention of title as defined in these Terms and Conditions. In the event of mixing, processing and/or combining the item(s) of the contract subject to retention of title with other movable items not owned by BayWa r.e., the latter shall acquire a coownership share in the resulting new item, which shall be equivalent to the ratio of the value of the item subject to retention of title (invoice amount including value added tax) to the corresponding value of the other processed item or of the new object, including processing costs (combining, mixing). If the invoice value of the other item is not known, its value must be calculated on the basis of the principles of proportionality. Otherwise, the same applies to the item produced by processing as to the purchased item delivered with retention of title.
5) If the ownership or co-ownership of the Company resulting from merging of items (Article 1058 CC) is dissolved, it is already agreed that the ownership or co-ownership of the customer in the single item is transferred to the Company to the extent of the value of the invoice as stated above.
6) The customer keeps the product, which is in the ownership or co-ownership of the Company, free of charge.
7) To the extent that the customer resells goods covered by the contract without or after processing, he is entitled to sell the goods subject to retention of title in the ordinary course of his commercial activity, provided he is not in default.
8) Any claims arising from the sale or from another legal cause (insurance contract, tort) relating to the retained goods (including claims of the current account balance) are hereby assigned by the customer to the Company as security up to the amount of the invoice value of the item subject to retention of title. The Company in turn hereby authorizes the customer, while retaining the right of revocation, to claim on his (the customer's) behalf on behalf of the Company the claims assigned. The above-mentioned authorization to resell the product subject to retention is subject to the validity of the assignment of these claims. This applies accordingly to cases in which the item subject to retention of title is used by the customer for the performance of a project contract or a project and materials contract, in particular for construction companies - here too, the receivable from the project contract or project and materials contract is assigned in advance to BayWa r.e. to the amount of the invoice value of the item subject to retention of title. The authorization granted to process the item of property of BayWa r.e. is also in this case subject to the validity of the assignment of the claims in question.
9) All the above authorizations may be revoked if the customer does not regularly meet the payments of his debts.
10) Pledges or transfers of ownership or credit risk swap transactions involving the goods subject to retention of title to and/or with third parties as security/collateral are prohibited. Similarly, the customer is not permitted to assign the receivables assigned to BayWa r.e. on the basis of extended retention of title as a factoring customer to a factoring company or factoring bank, unless such factoring company or factoring bank directly assumes the customer's payment obligations with BayWa r.e. Otherwise, the assignment or sale of receivables assigned on the basis of an extended retention of title to the factoring company or factoring bank requires the prior written approval of BayWa r.e..
11) If the debtors (third party debtors) pay the customer the claims assigned to BayWa r.e. due to the extended retention of title by cheque or other means of payment, the ownership and possession of such payment shall be transferred to BayWa r.e. as soon as the customer obtains it and subject to the redemption of the cheque or other security.
12) BayWa r. e. is entitled to collect claims from the resale up to the point in time of the revocation, which it is entitled to issue at any time and which may also be issued orally. Upon request, the customer must notify the third party debtor of the assignment, inform BayWa r.e. of this notification and send BayWa r.e. the necessary information and documents for the collection of the assigned receivables together with the information relating to the notification. BayWa r.e. must be informed by the customer without delay of any seizure or other impediment by third parties.
13) The claim of retention of title, and in particular the withdrawal of the objects of the contract and the collection of claims from third parties, does not constitute a withdrawal of the Company from the contract. In particular, BayWa r.e. shall be entitled to take back the object subject to retention of title - without having to withdraw from the contract - if the purchaser of the object in question has exceeded the payment deadline imposed on him, has not paid other obligations relating to BayWa r.e. on time, is in default of payment or is unable to fulfil his obligations under these Terms and Conditions.
14) If the customer's claims are based on the resale of such materials for which BayWa r.e. has a simple, extended or prolonged retention of title and a joint account is maintained, the customer hereby assigns the claim arising from the joint account to BayWa r.e. up to the value of the goods subject to retention of title.
15) At the request of the customer, BayWa r.e. undertakes to release the guarantees to which it is entitled if the actual value of its guarantees exceeds the claims to be secured by more than 10% - the guarantees to be released are selected at the unaudited discretion of BayWa r.e.
16) In case of interventions of third parties in the products under retention, especially forced or conservative seizures, the customer must indicate to the third party that the products are the property of the Company and inform the Company without delay, so that the Company can exercise its ownership rights. To the extent that the third party is not able to reimburse the legal or extrajudicial costs incurred in connection with the seizure or other interference with the Company's ownership, the customer shall be liable for them.
17) In any case of unconventional behavior of the customer, especially late payment, the Company is entitled to withdraw from the contract and request the return of the retained products.
X. Place of performance
The place of performance for all deliveries performed and services provided by BayWa r.e. is the registered office of BayWa r.e. Similarly, the place of performance for payments by the customer is the registered office of BayWa r.e.
XI. Autonomy clause of the provisions
If one (or more) of the provisions of these Terms and Conditions is or becomes invalid, the validity of the remaining provisions will remain unaffected. In place of the invalid provision, the relevant provisions of Greek Law shall apply.
XII. Applicable law/ material and territorial jurisdiction
The legal relationship between the Company and the client is governed exclusively by the provisions of Greek law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply in this respect. The exclusive place of jurisdiction for any disputes arising out of or in connection with the contract concluded between the Company and the customer shall be the registered office of BayWa r.e. However, BayWa r.e. shall also be entitled to take legal action against the customer in the customer's usual place of jurisdiction.
The Courts of Athens (Athens Court of First Instance or the Athens Local Court shall have exclusive jurisdiction to settle any dispute arising from these Terms and Conditions.
XIII. General provisions
In case of translation of this document into another language for functionality reasons, any discrepancy between the translated version and the original Greek version of these Terms and Conditions, the Greek version will prevail.