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MOGUL KUMAS SANAYI ve TICARET LIMITED SIRKETI
GENERAL TERMS AND CONDITIONS OF SALE
In these Terms and Conditions of Sale (the “Terms and Conditions”) the following words shall have the following meanings:
"Buyer" means any organisation or person who buys goods;
"Goods" mean the articles to be supplied to the Buyer by the Seller;
"Seller" means “Mogul Kumaş Sanayi ve Ticaret Limited Sirketi”.
1. These Terms and Conditions are the entire and exclusive terms applicable to all quotations made and orders accepted by the Seller. They shall apply to all future sales of Goods by the Seller to the Buyer to even if they are not expressly agreed again.
2. Orders will only be accepted and will be subject to the Terms and Conditions herein. Counter proposal, additions, deletions or modifications proposed by the Buyer in its printed form or Buyer’s conditions of purchasing will not be accepted, unless agreed by written confirmation of the Seller.
3. Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller. Seller has right to make changes in the Terms and Conditions without prior notice.
4. Buyer is obliged to provide Seller’s “General Terms and Conditions of Sale” if not provided with order confirmation or proforma invoices.
OFFER AND CONTRACT
5. A quotation issued by the Seller shall not constitute a binding offer. An order submitted by the Buyer constitutes an offer to enter into a purchase contract with the Seller pursuant to these General Terms and Conditions and the terms of any relevant quotation from the Seller. Such offer is only valid if it is confirmed by the Seller either by order confirmation form or by sending a proforma invoice or by the Seller beginning to perform its obligations.
6. Technical changes can be made by Seller if they do not influence the use of the product, or unless specific agreement has been made with Buyer that no change can be made without discussion.
7. Samples, product brochures, descriptions, photographs or other illustrations are to be considered non-binding material for illustration and/or test purposes, giving only an approximation of properties and specification and shall not form part of any contract between Seller and Buyer.
8. If orders are not confirmed or Letter of Credit is not opened or cash payment is not made by Buyer within 30 days after the Seller’s sending of the order confirmation form or the sending of its proforma invoice , Seller’s offer will be automatically expired and new conditions determined by Seller will apply.
PRICES AND PAYMENT
9. Except as otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex Works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
10. The price is exclusive of any applicable tax, including value added tax, or other government charge or duty, which the Buyer shall be additionally liable to pay at the rate and in the manner from time to time prescribed by law. If exemption from taxes is claimed, the Buyer must provide a certificate of exemption. Any additional costs incurred by the Seller pursuant to any law or any order or regulation made by any governmental body shall be paid by the Buyer. The price shall be net of any withholding tax payable by the Buyer, and in no event shall the Buyer be entitled to withhold or deduct any such tax from the price.
11. All prices quoted are subject to change until Seller’s order confirmation is sent to the Buyer . Sellers quoted prices are for its Goods with the Disclaimer of Warranties, Exclusions or Consequential Damages. Unforeseen changes in cost of raw materials, wages, energy and others beyond our control shall entitle the Seller to adjust prices accordingly even orders are confirmed by Seller.
12. If the Buyer is in default of payment or if there is justified doubt in respect of his solvency or creditworthiness, Seller is entitled to demand without prejudice to its other rights, collateral or prepayment for the outstanding consignments and to demand immediate payment of all claims arising from the business relationship. Any outstanding orders, not fulfilled, are then subject to cancellation without prejudice. The Buyer may set off or withhold payments only if his counterclaim res judicata.
13. Payment is due upon receipt of the Goods, unless otherwise agreed. Payment is considered made only when the Sellers account is credited with the due amount. This is also valid for agreed draft or L/C payments. Only swift messages can be considered as a payment proof; payment instructions will not be taken into consideration. The Seller shall not be obliged to accept bills, checks and other promises to pay.
14. If the Buyer fails to make any payment on the due date the Seller has the right to charge interest at a rate of 5 point above the applicable marginal lending facility rate of Euro Central Bank or American Central Bank’s interest rate, from the due date until payment in full is made without prejudice to any other right or remedy available to the Seller.
DELIVERY & TIME OF DELIVERY
15. Unless otherwise agreed in writing, Goods shall be delivered ex Works.
16. Seller reserves the right to make port deliveries and all such deliveries when separately invoiced, shall be paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries.
17. All quoted delivery or dispatch dates (if any) are approximate and subject to change due to delays in production schedule or vessel dates. Delays exceeding 7 (seven) working days will be informed to Buyer. Delivery deadlines shall remain ineffective as long as Buyer has not properly fulfilled his obligations such as furnishing technical data and documents, approvals as well as making a down payment or providing payment guarantee, late opening of Letter of Credit or late approval of order confirmation by Buyer.
18. Seller’s duty to deliver is suspended if Buyer does not fulfill its obligations.
19. Seller’s delivery obligations have been met once Goods are dispatched, or information on dispatch is given.
20. The Seller is not responsible for any product damage incurred during or as a result of shipment, handling or storage in transit, as the Goods shall be delivered exworks basis.
21. Seller shall not be liable for any damages as a result of any delay or otherwise due to Force Majeure. . In the event of any such delay the dispatch shall be extended for a period equal to the time lost by reason of the delay.
22. The Buyer shall inspect the Goods immediately upon receipt. Claims for incomplete, defective (packaging damages or others which are visible from outside of rolls or pallets), or incorrect delivery must be recorded on the delivery note, respectively, consignment note/waybill, immediately upon receipt of the Goods and notified in writing to Seller by enclosing the delivery note, consignment note, waybill, within 10 days of arrival at Buyer’s premises. Failure to give such notice shall institute unqualified acceptance and a waiver of all such claims by Buyer.
23. The Seller is entitled to choose mode of transport, means of shipment, transport route, the type and extent of the required means of protection, the forwarding agent or carrier and general packaging.
24. Goods may only be returned with the Seller’s written acceptance. İt’s not possible to return sold and non-defective goods.
25. If the Goods are to be returned with the Seller’s written acceptance:
a) a Goods return reference number obtained from the Seller must be clearly shown on the returned parcels;
b) the Buyer will be liable for cost of remedying any damage to the Goods returned where such damage has, in the opinion of the Seller, been caused by the Goods being inadequately packaged by the Buyer or through the Buyer’s fault;
26. The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
27. The Seller reserves the title to the delivery item until all current and future claims which the Seller has against the Buyer and their affiliated companies as a result of the business relationship, have been paid. The reservation of title applies to the acknowledged balance if the Seller bills the Buyer on current account basis.
28. The Buyer is entitled to resell the delivery item in the ordinary course of business. However, the Buyer herewith assigns to the Seller all claims amounting to the final invoice amount which the Buyer has against his buyer or a third party as a result of such resale regardless of whether the delivery item was resold without, or after, further processing. The Buyer is entitled to collect such claim even after the assignment. The Seller’s entitlement to collect the claim remains unaffected’ however the Seller undertakes not to collect the claim if the Buyer duly fulfils his payment obligations and is not in default of payment. The Seller can demand that the Buyer discloses the assigned claim and its debtor provides all information required for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.
29. The processing or reshaping of the delivery item by the Buyer is always effected for the Seller as manufacturer, however, without any obligation for the Seller. If the delivery item is processed or combined with a different item not belonging to the Seller, the Seller acquires co-ownership of the new product at a percentage reflecting the ratio between the delivery item and the other processed item/s at the time of the processing. The provisions here in applicable to reserved Goods will otherwise also apply to the newly developed item resulting from the processing.
30. If the delivery item is inseparably mixed with items not belonging to the Seller, the Seller acquires co-ownership of the new product at a percentage reflecting the ratio between the delivery item and the other mixed items at the time of mixing. If the mixing is such that the Buyer’s item must be regarded as the main item, the Buyer herewith agrees to transfer a pro-rata co-ownership to the Seller. The Buyer will keep the sole property or co-owned property in safe custody for the Seller.
QUALITY OF GOODS
31. The Seller shall reserve any customary or technically unavoidable deviations from physical and chemical quantities as follows:
a. Seller is allowed to send +/- 10% in quantity
b. Reel length may vary by +/- 2%
c. Reel width may vary by +/- 6mm
d. Basis weight may vary by +/- 10% as measured by a 1m2 sample.
e. Small deviations in colour and fibre distribution may occur.
f. Seller makes no representations or warranties with respect to the products or their specifications, express or implied, or of merchantability, fitness for a particular purpose or otherwise.
g. Seller shall not be subject to any claim for consequential, incidental or contingent loss.
h. Details of the delivery item (e.g. provided in catalogues, product information, electronic media or on labels) are based on the Seller’s general experience and knowledge and are thus reference values or makings only. These product details as well as expressly stipulated features/purposes shall not relieve the customer of the need to test the product for the intended purpose.
i. The quality of the delivery item shall be finally described by explicitly agreed features (e.g. specifications, labels, approvals, other information). Warranty for a special purpose or particular suitability shall be given only in case of explicit written agreement; otherwise the risk of suitability and use shall be assumed by the Buyer. Features or other qualities of deliveries, other than the ones expressly stipulated, shall not be warranted. We shall reserve any customary or technically unavoidable deviations from physical and chemical quantities, including colors, formula, recipes, processes and the use of raw materials as well as order sizes, as far as this may not be accepted as unreasonable by the Buyer.
32. Any claims concerning the quality of the Goods must be made in writing within 60 days from receipt of Goods. The Seller has right not to accept claims after that date. Labels of defected rolls and samples must accompany any claim.
33. Buyer may not sell any Goods with a claim outstanding. If Goods are sold, the Seller is no longer responsible.
34. The Buyer shall allow the Seller to promptly inspect any rejected Goods, in particular these shall be made available to the Seller on request and at the Seller’s cost. If complaints are unfounded the Seller shall reserves the right to charge transport costs and inspection expenses to the Buyer.
35. Sellers sole liability to Buyer in connection with sale of the Goods, or for any claim or legal action brought by Buyer or any third party, shall be limited to replacement of the Goods or refund of the purchase price, at Seller’s option. No claims will be accepted for finished products using Seller’s Goods and Seller can’t be charged for any treatments or costs applied on Seller’s product. Also extra freight charges, workmanship costs duties, custom. cost and VAT in terms of claims is not under responsibility of Seller and can’t be demanded from Seller as compensation for those charges.
INTELLECTUAL PROPERTY RIGHTS
36. All Intellectual Property Rights produced from or arising as a result of the performance of these Terms and Conditions shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties. Buyer agrees to indemnify and hold harmless the Seller against all costs and expenses and agrees to defend at his own expense all suits, actions and proceedings in which the Buyer, its successors and assigner or dealers or users of the Buyer’s products are made defendants for actual or alleged infringement of any U.S, E.U or foreign patent resulting from the use or sale of items herein ordered. The Seller reserves all proprietary rights and copyrights of estimates, designs, drawings and other documents; these may be made available to third parties only with the Seller’s express written approval. Drawings and other documents provided as part of an offer must be returned to the Seller on request at any time; this is mandatory when the order is not placed with the Seller. In case of the Seller’s delivery of items according to drawings, models, samples or other documents provided by the Buyer, the latter shall ensure that industrial property rights of third parties are not infringed upon. If a third party, referring to proprietary rights, proprietary rights, prohibits in particular the manufacturing and delivery of such items the Seller shall be entitled to suspend all relevant activities and to claim damages without being obliged to analyze legal responsibilities. In addition, the Buyer shall undertake to indemnify the Seller immediately from third-party claims related to documents made available to the Seller.
COMPLIANCE WITH LAWS
37. Buyer agrees to comply fully with every statute or law which directly or indirectly regulates or affects the Goods herein purchased and to indemnify and save harmless the Seller from and against any liability, expense or loss resulting from failure of such compliance.
PLACE OF PERFORMANCE AND JURISDICTION
38. For all claims from business relations, in particular the deliveries, the place of jurisdiction shall be Gaziantep, Turkey. This shall also apply to disputes as to the creation and validity of a contractual relationship.
The Seller shall, however, has the option to proceed against the Buyer in appropriate courts at the Buyer’s place of business.
The business relations with the Buyer shall be exclusively governed by the laws of the Turkey.
The UN-Convention on the International Sale of Goods (C.I.S.G.) and other international conventions on uniform law on the sale of goods shall not be applicable.