These General Terms and Conditions of Sales, and all modifications and additions hereto (the "Terms") constitute an integral part of the quotation document and/or your submitted order (the "Buyer's order") and/or the Buyer's order confirmation and/or the acceptance notice and/or the proforma or commercial invoice attached hereto (any and all of the specified documents shall be referred to hereinafter as the (together, the "Transaction Documents").
These Terms shall apply to products and related services (hereafter jointly the "Products") manufactured and/or provided by AT&T KABLOLAMA SİSTEMLERİ SANAYİ VE TİCARET ANONİM ŞİRKETİ, a company incorporated in Turkey. ("AT&T Cabling", "Us" or "We") to you, the entity identified in the Transaction Documents as the buyer (the "Buyer"), and shall be binding upon the Buyer with respect to the transaction proposed or accepted, as the case may be, in the Transaction Documents, and with respect to any other transaction which shall be made between AT&T Cabling and the Buyer hereafter (together the "Transactions"). These Terms shall take precedence over any terms and conditions which appear in the Transaction Documents or in any documents incorporated thereof and shall prevail in any event of a discrepancy with any other written or oral agreement between the Buyer and AT&T Cabling with relation to the Products, unless otherwise explicitly stated by AT&T Cabling, in writing.
The Transactions are subject to the terms and conditions included in the Transaction Documents and these Terms, including prices and payment terms, and the Buyer shall not be entitled to cancel or otherwise amend, terminate or change them. Without derogating from the above, unless explicitly agreed to in writing by AT&T Cabling, no term or condition of the Buyer's order additional to or different from these Terms shall become part of the Transaction Documents, and AT&T Cabling's failure to object to any provision contained in any communication from the Buyer shall not be construed as a waiver of any of these Terms or as an acceptance of any such provision.
By submitting a Buyer's order to AT&T Cabling, the Buyer agrees to be subject to these Terms in their entirety.
The Buyer shall comply with all applicable laws, statutes, ordinances, codes, rules and regulations applicable to the import, delivery, storage and use of the Products.
Prices, payment terms, dates of delivery and specifications references in AT&T Cabling's quotations or displayed by AT&T Cabling online are for information purposes only, and shall not in any way be binding on AT&T Cabling unless identical to those detailed in the Transaction Documents and the Buyer's order fully accepted by AT&T Cabling.
All Buyer's orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping and delivery dates. The Buyer's order shall become binding upon AT&T Cabling only upon AT&T Cabling's written acceptance of said order.
All prices shown, presented and/or specified by AT&T Cabling do not include any federal, state, local, provincial, municipal, occupational, or other government taxes, including any sales, use or excise taxes, or like taxes, tariffs, duties or surcharges, now in force or enacted in the future applicable to the Products sold, and shall be borne by the Buyer.
AT&T Cabling may
modify Products' specifications, provided the modifications do
not adversely affect the performance of the Products, and may
furnish suitable substitutes for unobtainable materials.
All Products delivered to the Buyer shall remain the property of AT&T Cabling until the Buyer shall have fulfilled its entire payment obligations specified in the Transaction Documents and herein.
Any amounts specified in the Transaction Documents not paid when due, shall bear interest at the rate of 1.5 percent per month, or the maximum allowable rate under applicable law, whichever is higher.
Any Buyer's order accepted by AT&T Cabling may be cancelled or rescheduled by the Buyer only with the written consent of AT&T Cabling, at AT&T Cabling's sole discretion, and upon payment of AT&T Cabling's cancellation or rescheduling charges. AT&T Cabling shall have the right, at its sole discretion and without penalty or payment, to cancel any order accepted (i) if the Buyer fails to make any payment when due to AT&T Cabling under the Transaction Documents or an other document; (ii) if any act or omission of the Buyer delays AT&T Cabling's performance; (iii) if the Buyer violates any of these Terms; or (iv) if the Buyer's credit becomes impaired. In the event of such cancellation, AT&T Cabling shall be entitled to be reimbursed for its reasonable and proper cancellation charges.
The Products may only be returned to AT&T Cabling after obtaining a return authorization. Credit for return of Products is at the sole discretion of AT&T Cabling, and returns are subject to a minimum of 10% from product cost restocking fee, plus other charges if not returned in a like-now condition. AT&T Cabling may determine cause and liability for defective Products returned at its sole discretion.
For the avoidance of doubt, the delivery date specified in the Transaction Documents, if any, is a non-binding estimated date only. AT&T Cabling shall not be bound by such date, nor shall it be liable for any damage, liability or cost incurred by the Buyer, directly or indirectly, due to any delay in delivery of the Products listed in the Transaction Documents.
The Buyer shall bear all travel, storage and lodging expenses and any other costs and expenses related to the sale and delivery of the Products under these Terms, including but not limited to related shipping and insurance charges, and supply of the Products directly to any carrier of the Products. The carrier shall be deemed to act as the Buyer's agent for delivery of the Products, and the Buyer shall file any claims for loss or damage to the Products during transit only with such carrier.
In the absence of specific instructions, AT&T Cabling will select the carrier, but shall not thereby be deemed to assume any liability in connection with the shipment, and in no event shall the carrier be deemed to be the agent of AT&T Cabling.
The Buyer shall provide its own insurance. Title and risk of damage or loss to the Products sold hereunder shall lie upon the Buyer upon delivery by AT&T Cabling to the possession of the carrier, provided that AT&T Cabling reserves a purchase money security interest in the Products.
The Products
shall be deemed finally inspected and accepted within 15 days
after delivery unless the Buyer provides AT&T Cabling with a
written notice of rejection within such period. Acceptance of
the Products shall constitute acknowledgement of full
performance by AT&T Cabling of all obligations under the
Transaction Documents, except as warranted otherwise hereinafter.
AT&T Cabling warrants to the Buyer that, for a period of 12 month from the date of delivery of the Products to the Buyer (the "Warranty Period"), the Products will be free from material defects in material or workmanship under normal operation.
AT&T Cabling does not warrant that (a) the operation of the Products will be uninterrupted or error-free, or (b) the Products, when integrated in, or combined with, other products not supplied by AT&T Cabling, will continue to perform substantially in accordance with the provided Products' documentation.
This limited warranty is only for the benefit of the original Buyer for the purpose of claiming or exercising any rights or benefits under or in connection with this limited warranty.
During the Warranty Period, AT&T Cabling, at its expense and in its sole discretion, will repair or replace a Product if AT&T Cabling has determined, in its sole discretion, that the Product has a covered defect and that this defect was caused solely by AT&T Cabling or solely due to its act or omission, provided that the Buyer first notifies AT&T Cabling of any such defect, furnishes AT&T Cabling with a proof of purchase, and returns the Product, shipping charges prepaid, to AT&T Cabling.
If, upon examination of the returned Product, AT&T Cabling does not substantiate the defect claimed by the Buyer, or determines that the defect is not covered under this limited warranty, AT&T Cabling will not be required to repair or replace the Product, but may instead reship the Product to the Buyer, in which case Buyer shall be responsible for paying AT&T Cabling's usual charges for unpacking, testing, and repacking the Product for reshipment to the Buyer.
The Buyer shall bear the risk of loss or damage in transit to any Product returned by the Buyer to AT&T Cabling, or any returned Product not found to be defective or covered under this warranty and reshipped by AT&T Cabling to the Buyer.
In the event AT&T Cabling repairs or replaces a defective Product, the repaired or replacement Product will be covered under this limited warranty for the remainder of the original Warranty Period of the defective Product.
If AT&T Cabling is unable to repair or replace a defective Product, the Buyer's exclusive remedy shall be the lower of either a refund of the original purchase price of the defective Product, or US$ 50,000. Any returned and replaced Product, or any Product for which AT&T Cabling has refunded the original purchase price, shall become the property of AT&T Cabling.
THE LIMITED WARRANTY SPECIFIED ABOVE STATES THE EXCLUSIVE AND SOLE REMEDY FOR ANY BREACH OF WARRANTY BY, OR ANY DEFECTS IN, THE PRODUCTS, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE. The above limited warranty shall not apply to any untested, partially tested, unfinished or incomplete Products, or any Product samples, demo units or prototypes, delivered by THE COMPANY to the BUYER. EXCEPT AS SPECIFICALLY STATED HEREIN, All such Products shall be delivered "AS IS" without any warranty of any kind.
The Buyer's sole remedies, and AT&T Cabling's sole liabilities, in connection with the Products, shall be limited to those expressly set forth in the Transaction Documents and these Terms.
The Products are not designed, manufactured or intended for use, and should not be used or sold or resold for use, in any applications requiring fail-safe performance of the Products and/or in which a malfunction or a failure of the Products could lead to personal injury or death, or serious physical or environmental damage, or serious financial or economic damage, including but not limited to applications such as (a) life support machines or other life preserving medical devices or systems; (b) air traffic control or aircraft navigation or communication systems; OR (c) control equipment for nuclear facilities (Collectively, "Restricted Uses"). All Restricted Uses of the Products are strictly prohibited and shall automatically void any warranties or indemnities provided by AT&T CABLING, and release AT&T CABLING from any obligation to provide any support with respect to such Products.
AT&T Cabling shall not be liable for failure to perform any of its obligations under the Transaction Documents and/or these Terms when the failure is due to causes beyond AT&T Cabling's control, including, without limitation, fire, flood, earthquake, civil strike, national or local disaster, order of any applicable government or any department or agency thereof, riot, war, civil appraisal or embargo. Any suspension of AT&T Cabling's performance by reason of this Section shall be limited to the period during which the cause of such suspension exists.
In no event, regardless of the form of action, shall AT&T Cabling or any of its directors, officers, employees or representatives (together, the "AT&T Cabling Affiliates") be liable for any special, exemplary, indirect, incidental or consequential losses or damages (including loss of use, data, business, revenues, profits or other economic advantage), however caused, arising under or in connection with these Terms, any of the Transaction Documents and the Products provided hereunder, even if AT&T Cabling or the AT&T Cabling Affiliates have been advised of the possibility or probability of such damages or that such damages were foreseen, and even if any exclusive remedies provided in these Terms and any of the Transaction Documents fail of their essential purpose. Without derogating from the above said, in no event shall AT&T Cabling or the AT&T Cabling Affiliates be liable for any unforeseen damages.
In no event, regardless of the form of action, shall AT&T Cabling or any of its directors, officers, employees or representatives (together, the "AT&T Cabling Affiliates") be liable for any special, exemplary, indirect, incidental or consequential losses or damages (including loss of use, data, business, revenues, profits or other economic advantage), however caused, arising under or in connection with these Terms, any of the Transaction Documents and the Products provided hereunder, even if AT&T Cabling or the AT&T Cabling Affiliates have been advised of the possibility or probability of such damages or that such damages were foreseen, and even if any exclusive remedies provided in these Terms and any of the Transaction Documents fail of their essential purpose. Without derogating from the above said, in no event shall AT&T Cabling or the AT&T Cabling Affiliates be liable for any unforeseen damages.
The Buyer shall indemnify and hold harmless AT&T Cabling and the AT&T Cabling Affiliates and their respective officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and all liabilities, damages, losses, claims, lawsuits, including costs and expenses in connection therewith, for death or injury to any persons or loss of any property whatsoever, caused in any manner by the Buyer’s possession, use or operation of the Products.
In no event shall AT&T Cabling's cumulative liability for all claims of whatever kind, in the aggregate, whether such claims are based in contract, indemnity, warranty, tort or otherwise, arising under or in connection with any of the Transaction Documents and these Terms, and any of the Products provided thereunder, exceed the lower of the sum of the total amounts paid by the Buyer to AT&T Cabling for the product that is the reason for the claim , or US$ 250,000 whatever is lower.
No action, regardless of form, arising out of any alleged breach of any of the Transaction Documents and/or these Terms, may be brought by the Buyer against AT&T Cabling and/or AT&T Cabling Affiliates more than 12 months after the date of the applicable Transaction Documents.
AT&T Cabling shall at all times have and retain title and full ownership of any and all software, firmware, programs, designs and documentation thereof supplied by AT&T Cabling for use with the Products, and of all copies thereof made by the Buyer (collectively "IP"). AT&T Cabling grants the Buyer a limited, non-exclusive and non-transferable license to use such IP solely for use with the Products. The Buyer shall take all reasonable steps to protect AT&T Cabling's proprietary interests in the IP and shall not provide the IP to any third party.
The validity, performance and construction of the Transaction Documents and these Terms shall be governed by and construed under the laws of the State of Turkey. If any provision of these Terms is held to be unenforceable, such holding shall not affect the enforceability of any other provision. Any legal presumption that any terms in the Transaction Documents shall be strictly construed against the party who drafted such terms or who benefits from such terms, shall not be employed in construing and interpreting the Transaction Documents.
Prior to commencement of any legal proceedings, AT&T Cabling and the Buyer shall use their best endeavors to settle amicably any dispute or difference between them arising under or in connection with any of the Transaction Documents and these Terms. If AT&T Cabling and the Buyer fail to reach a settlement, such dispute or difference shall be referred exclusively to the Court House in Istanbul, Turkey.
The Buyer shall not transfer or assign any or all of its rights and/or obligations under these Terms and any of the Transaction Documents without the prior written consent of AT&T Cabling which may be withheld for any reason.
No Waiver of any breach of these Terms shall constitute a waiver of any prior or subsequent breach of any similar or dissimilar provision or a modification of these Terms or the Transaction Documents. All AT&T Cabling's rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be exercised singularly or concurrently.
Regardless of any disclosure made by the Buyer to AT&T Cabling of the ultimate destination of the Products, the Buyer shall not export any of the Products, directly or indirectly, or any system incorporating said Products either in contravention of statute or regulation or without first obtaining all required licenses and permits from the relevant governmental agencies or departments.
All notices given under these Terms and the Transaction Documents shall be in writing, mailed by first class mail, certified or registered, or delivered by hand to the address of the other party set forth in the Transaction Documents or to such other address as such party may designate from time to time by such notice, and shall take effect when received.