General Terms and Conditions of Business for Jantsa Jant Sanayi ve Ticaret A.Ş.
I. SCOPE OF THE TERMS AND CONDITIONS OF BUSINESS:
I.1 The following terms and conditions shall apply to all deliveries and services rendered within the scope of our company’s activities. All future transactions shall also be deemed completed and discharged under the condition that these terms and conditions are also applicable, even if these terms and conditions are not explicitly provided in each individual case.
I.2 Additional agreements and conditions of the purchaser, which conflict with or differ from ours shall only be considered valid on a case-by-case basis and only if agreed in a written form.
I.3 Should any individual provision in these Terms and Conditions become legally ineffective, the other provisions shall remain unaffected thereby.
II. OFFERS AND CONTRACT CONCLUSİON:
II.1 Offers are always made without obligation.
II.2 The placing of an order for goods by the customer shall constitute a binding declaration by the customer that he wishes to purchase the ordered goods. The vendor shall be entitled to accept the contractual offer which the order constitutes within four weeks of receipt of the order.
II.3 Orders require a written confirmation to be legally effective; the content of this confirmation is decisive for the contractual relationship. Further agreements require a written form to be legally effective. Information provided in catalogues is, due to any possible technical developments, is not binding.
II.4 Offer and related documents remain our property and shall not be disclosed to third parties. We reserve the property and copy rights to samples, certificates, drawings and similar tangible and intangible information – also in electronic form; they shall not be made available to third parties.
III.1 In default of any other agreement in writing, the delivery of the merchandise shall be effected as FCA Umurlu according to Incoterms 2010. Delivery and invoicing shall be transacted in accordance with the prices valid on the day of delivery and under the conditions indicated in the prevailing price lists. Delivery goods notified as being ready to be shipped must be called off or collected without delay. We are authorized to perform partial shipments.
III.2 Unless otherwise agreed, costs for shipping and any shipping risks shall be borne by the purchaser. The choice of any packaging shall be made by the vendor with due care but without assuming liability. In any case we are not under any obligation to keep the goods in storage unless these costs are paid in full upon our first demand.
III.3 Any prior weight indications are not binding. All shipments, including delivery free domicile, shall always be at the risk of the recipient. Any damage occurring during transport is to be reported to the shipper in writing upon receipt of delivery by the recipient of the merchandise and/or the invoice. Any such claims are to be asserted vis-á-vis the shipper.
III.4 If shipping is delayed due to circumstances which are the responsibility of the purchaser, we are entitled to store the delivery item to our discretion at the cost and risk of the purchaser and to demand immediate payment for this or, in the case of delivery on credit, to take the period of storage into account with regard to the period of credit extension. We shall be deemed to have fulfilled our obligation in the event that purchaser’s transporter is not present at purchaser’s facilities on delivery date. It is purchaser’s responsibility to follow the shipment of the products by contacting the transporter. In such cases, all kinds of damages arisen from late receipt of the products, all kinds of expenses arisen from the storage of the products and all kinds of damages to be incurred by the products after the agreed delivery date shall be borne by the purchaser. In case the purchaser fails to receive the products within 45 days of the agreed delivery date, we may deliver the products to the purchaser’s facility on purchaser’s behalf. In this case we reserve the right of cancelling the order that corresponds to the transportation cost.
IV. DELIVERY PERIOD
IV.1 In principle, delivery dates imposed on us are not binding. We shall do our utmost to uphold the confirmed delivery periods; however, we refuse to accept any claims for damages for exceeding the delivery times.
IV.2 We are entitled to postpone or cancel delivery obligations in the case of force majeure, labour disputes, plant interruptions arising not through our fault or a shortage of labour, raw materials or fuel arising not through our fault. The purchaser cannot in such cases claim damage or compensation caused by delayed performance.
IV.3 The purchaser cannot make complaints about design alterations which we makes generally to the respective delivery item before an order is carried out and which do not limit the practical value of the delivery item in any way
V.1 Unless otherwise agreed the prices shall be in EURO, FCA Umurlu, according to Incoterms 2010. The prices valid at the date of delivery shall apply.
V.2 Prices given in acknowledgement of order shall be subject to a change in the cost factors which are decisive for the pricing (e.g. raw material costs, operating supplies, salaries, freights or other binding regulations of national and supranational law).
V.3 Insofar as nothing particular is agreed, the invoice amount shall be paid on contemporaneous performance against delivery and without deduction
V.4 In the event that the purchaser is delayed in the payment obligation for purchased and delivered goods, we may abstain from loading and delivery of all the finalized orders and seize purchaser’s all goods, rights and receivables and hinder them from delivering to the purchaser until the payment is made.
VI. TERMS OF PAYMENT In the event of a failure to pay 30 days after the invoice date, interest for delay of %2 above the currently prevailing bank interest rates, albeit at least in the amount of %12 p.a., excluding value-added tax, shall be deemed agreed to. In such an event the purchaser shall undertake to reimburse us for all reminder and collection agency fees incurred, in particular any costs incurred by any legal action taken by an attorney if necessary in the amount indicated by the currently prevailing schedule of attorneys’ fees. Bills of exchange shall only be accepted upon prior explicit agreement and only for payment, excluding any cash discounts.
VII. RETENTION OF TITLE
VII.1 The following agreed retention of title arrangement shall secure any and all of our current and future claims against the purchaser arising out of the business relationship between the parties, including accessory claims, claims for damages, claims out of cheques and bills of exchange and balances of current accounts in relation to the business relationship.
VII.2 The goods delivered by us to the purchaser (Retained Goods) remain our property until full payment has been made of all secured claims. The retention of title shall continue to exist, even if some of our claims are included in a current account and a balance has been drawn.
VII.3 The purchaser stores the Retained Goods for us for no consideration and insures them at its own costs against all usual risks, such as for example water, fire, theft etc. to the extent usual within the industry, but at least at the amount of the purchase value. The purchaser already now, up to the amount of our secured claims including VAT, hereby assigns to us all claims for payment and compensation, which the purchaser obtains from insurance companies or other liable parties as a result of the damages set forth above. We accept the assignment. We are entitled to pay the insurance premiums on the account of the purchaser.
VII.4 If the purchaser converts Retained Goods into a new movable item, the conversion takes place on our behalf, without ourselves getting committing therefrom. We become the owners of the new item. In case of conversion, blending or comingling with goods not owned by us, we acquire co-ownership in the new item in proportion of the invoice value of the Retained Goods in relation to the total value.
VII.5 For the duration of the retention of title arrangement, the purchaser may not pledge or assign as a collateral the Retained Goods or the assigned claims.
VII.6 Should third parties lay claim to Retained Goods, specifically by attaching them, the purchaser will immediately point to our ownership rights and will immediately notify us thereof, including name and address of the pledgee, in order to enable us to enforce our ownership rights.
VII.7 The purchaser shall only be entitled to resell, process or install the Retained Goods in its normal course of business subject to the following provisions and with the proviso that the claims pursuant to VI.9 do in fact pass to us.
VII.8 The right of the purchaser to sell, process or install the Retained Goods in the ordinary course of business terminated when revoked by us, and irrespective of a revocation at the latest at the cessation of payments by the purchaser or the filing, or the opening, respectively, of bankruptcy proceedings over the assets of the purchaser. We are entitled to a revocation in case of a substantial deterioration in the financial situation of the purchaser.
VII.9 If the resale does not occur against payment in cash, the purchaser already now assigns to us as collateral all claims against the acquirer, including accessory rights – including balances from current accounts – arising out of the resale of the Retained Goods. The same applies to other claims which replace the Retained Goods or which otherwise arise in relation to the Retained Goods, like for example insurance claims or claims arising out of prohibited actions in case of loss or destruction. We accept the assignment. If the Retained Goods have been processed, comingled or mixed, and if we have obtained co-ownership therein in the amount of the invoice value, we are entitled to the claim for payment of the purchase price in proportion to the value of our rights in the respective goods. If the purchaser has sold the claim in the course of a true factoring, our claim becomes due immediately, the purchaser assigns the claim against the factor which replaces the claim to us and immediately forwards the proceeds arising out of the sale of the claim to the factor to us. We hereby accept the assignment.
VII.10 The purchaser is authorised to collect the assigned claims (in particular arising out of the resale). We can revoke this authorisation to collect at any time if the contractual partner does not satisfy its payment obligations, there is a delay in payment, a motion for the opening of bankruptcy proceedings over the assets of the purchaser has been filed, bankruptcy proceedings over the assets of the purchaser have been opened or the are enforcement actions of third parties against the purchaser. Upon our request the purchaser has to name the debtors of assigned claims, has to notify them of the assignment or has to provide us the with the assignment notifications. In case of a revocation of the authorisation to collect we are hereby authorised by the purchaser to inform its customers of the assignment and to collect the claims by ourselves. As long as the purchaser satisfies its payment obligations, we will not disclose the assignment. The purchaser is obliged to provide us upon our request with a detailed scheduled of the claims we are entitled to, including names and addresses of the customers, amount of the individual claims, invoice date and the like and to provide us with all information required for the enforcement of the assigned claims and to allow a review of such information.
VII.11 If, due to a breach of obligations of the purchaser, in particular in case of a delay of payment, we withdraw from the contract, we are entitled to claim that the Retained Goods are returned to us. The purchaser is obliged to return the Retained Goods. We can satisfy ourselves out of the returned Retained Goods through private sale.
VII.12 If the value of the collateral in our favour exceeds the secured claims by more than %20, we are, upon request of the purchaser or by a third party affected by the oversecurement of the purchaser, obliged to release collaterals to such extent at their election.
VIII.1 We warranty that delivered goods are free from defects in materials and workmanship and are produced according to provided technical documentation. The warranty period for these defects is 24 months from the shipment invoice date.
VIII.2 The purchaser has to examine delivered goods immediately upon receiving them, and provide written notification of all discovered defects or incomplete delivery no later than within 10 days after receipt of goods. Otherwise delivery of goods and quality of delivered goods are considered as accepted.
VIII.3 Normal wear is not covered with warranty. The warranty also does not cover damage resulting from improper usage of products, for example excess of loading norms or inflating tires stipulated by ETRTO (European Tyre and Rim Technical Organization), or using tires which do not correspond to ETRTO standard.
VIII.4 We do not bear obligation under warranty for goods if they were modified, or processed (including welding of disc to rim, drilling of stud holes, mechanical processing of surface, etc.). Repair of steel wheels is strictly prohibited.
VIII.5 We do not bear obligation under warranty for goods if spare parts produced by other manufacturers are used with them.
VIII.6 The purchaser should bear full responsibility for proving all conditions required to put forward a claim, in particular, proving presence of defect itself, the time at which the defect was discovered, and the fact that notification of defect was sent on time.
VIII.7 We bear responsibility for defects and damages which appear during transportation in limits of Incoterms 2010 delivery terms, according to which the deliveries are performed.
VIII.8 We warranty, that proved defects will be corrected either through replacement of goods or through compensation of their EXW price at the moment of initial delivery of goods.
We shall assume no liability for slight or severe negligence. Our liability is essentially limited to the amount that is covered by our insurance policies, or the amount for which our suppliers and producers can be held liable for damages in the event of any fault on their part. Any claims for damages can only be paid in these cases as soon as we have the complete monetary amount at our disposal. We are only liable vis-à-vis our contractual partner who hereby explicitly waives in advance all claims for damages against us asserted by third parties (such as resellers, end consumers, their family members, employees and other aggrieved parties). The purchaser shall undertake to resell the merchandise only on condition of this waiver of third-party claims against us and shall remain liable to us for any failure to do so and for any services we are obliged to render to third parties.
X. PRODUCT MARKİNG
The purchaser may use and sell the delivery goods only with the trademark with which the goods were delivered.
All intellectual property rights, trademarks and/or trade names used or embodied in the products solely and exclusively belong to us. Purchaser shall solely be entitled to use our trademarks and any of the intellectual property rights only within the scope of our commercial activities. Purchaser shall not register any domain name, trademarks and/or trade names that is similar and/or includes to ours name or trademarks.
Purchaser shall be at all times take all necessary steps and precautions to maintain and protect our trademarks and intellectual property rights and refrain from any and all actions and transactions which may be harmful to our such rights.
In case the goods are produced and delivered in accordance with the design, pattern and other specifications provided by the purchaser, we shall not be responsible from any third party claims regarding any deficiency in the goods and/or any intellectual property infringements since the goods are produced in line with the said specifications.
XI. DATA HANDLING
We shall be entitled to utilise and store any personal data regarding the purchaser.
Purchaser gives its explicit consent to the actions realized on the personal data such as collection, storage, alteration, disclosing to the third party business partners which need to be disclosed for the performance of the work or with our affiliates, domestically or in abroad, storing the data within the period of the commercial activity between us for the duration legally necessary or for the other reasons allowed in the related legislation, rearrangement or classification of the personal data that was disclosed by the parties to each other with the legal aim of performing the business relationship and using in ordinary commercial activities.
Purchaser declares and undertakes that he obtained explicit consent from respective persons regarding the processing of their personal data and purchaser has informed respective persons during the collection of the data within the scope of Personal Data Protection Code numbered 6698, with regards to the personal data that the respective persons may disclose to purchaser.
Purchaser has the following rights regarding the personal data that he discloses to the us: ascertaining whether its data is being processed by consulting to purchaser; if the data was processed, demanding information regarding the aforesaid; ascertaining the aim of the processing activity and whether the data is being processed accordingly; ascertaining the third parties abroad or domestically located that the data is being disclosed to; demanding the correction of the data in case if it was processed incorrectly or deficiently; demanding the data to be deleted or destroyed with regards to the article 7 of the Personal Data Protection Code; demanding that the third parties which the said data was disclosed to be notified regarding this deletion or destruction; objecting to the results against the user arising from the analysing of the processed data solely by automatic systems and to claim the damages caused in case the data is processed against the law.
Purchaser agrees and undertakes to treat all information and documents relating to or acquired by us strictly confidential and not to publish, communicate, divulge or disclose such confidential information and documents to third parties. Purchaser will not use such confidential information for any purposes, other than within the scope of our commercial activities. The obligations undertaken by the Purchaser in this Article XII shall survive any termination or expiration of our commercial activities.
XIII. APPLICABLE LAW, LEGAL VENUE AND PLACE OF PERFORMANCE We hereby agree that Turkish law shall be applicable in any case. Legal venue shall be deemed agreed as the competent court in Aydin, Turkey.