1. Scope and General Provisions
1.1. No order is binding on Disa Automotive (hereinafter the “Seller” or “Supplier”) unless accepted by Seller in writing. Seller’s acceptance of Buyer’s purchase order is expressly conditioned to Buyer’s consent to the terms stated in this document. These general terms and conditions shall supersede any pre-printed general terms and conditions appearing on Buyer’s documents.
1.2. The terms in this document and the purchase order will constitute the entire agreement between the parties with respect to the goods being sold and shall supersede all prior proposals, negotiations and communications, oral or written, between the parties regarding the same. Seller's agents shall have no authority to bind Seller unless thus stated in writing.
1.3. The Seller reserves its right to update the contents of these general conditions, always subject to previous notice and acceptance by the Buyer, within seven days before its entry into force.
1.4. In case certain provisions of these standard terms and conditions are regarded as void or voidable, the validity of the remaining provisions of these standard terms and conditions of sale shall not be affected. Buyer and Seller will accordingly replace the invalid provisions by such valid provisions legally permitted and corresponding as close as possible to the legal sense and purpose of the invalid provisions.
2. Quotations and Offers
2.1. Quotations and offers from Disa Automotive are valid only for a specific period of time and can be subject to further alterations.
2.2. The final purchase order must mention the offer submitted by Disa Automotive and accepted by the Buyer. The aforesaid final purchase order must be sent to Sales Department of Disa Automotive who will accept it, communicate any discrepancies, and/or refuse the whole purchase order or a part of it in writing.
The purchase order will enter into force once Disa Automotive has issued an order confirmation of sale with the specific conditions of the sale agreed with the Buyer.
If delivery has to take place without prior written order confirmation, the sales contract shall come into effect upon the delivery.
2.3. Confirmed orders cannot be put on hold or cancelled without Seller’s written approval. The part of the price for the confirmed order paid in advance by the Buyer, in case of cancellation due to reasons beyond control of the Seller, shall not be reimbursed.
2.4. Seller’s failure to exercise any right shall not be deemed to be a waiver of such right.
2.5. In case of any changes in the financial condition of the Buyer compared to the conditions at the moment of dispatch of the order confirmation, Seller reserves its right to claim a further request from the Buyer. If the Buyer does not guarantee the payment, Seller shall be entitled to withdraw from the contract and refuse to deliver without any kind of compensation.
2.6. If changes are required by the Buyer after Seller sends the order confirmation, those changes are subject to acceptance by the Seller and any potential additional costs will be invoiced to the Buyer.
2.7. Undertaking changes significantly, for example, due to a merger, acquisition or division of the Seller shall not be deemed a breach of the contract and neither party shall be entitled to terminate the contract. The assignee shall be subrogated in all rights and obligations undertaken by the Seller in the contract.
3. Limited Liability and Damages
The total liability of the Seller for all claims of any kind arising from or related to the performance or breach of the contract with the Buyer, shall not exceed the (i) contract price, or (ii) if Buyer places multiple order(s), the price of each particular order for all claims arising from or related to that order. The Seller shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement, cost of capital, downtime costs, extra time costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of Buyer’s customers for any of the foregoing types of damages. The Seller shall not be liable for advice or assistance that is not required for the work scope under the contract. If the Buyer is supplying the goods to a third party, or using the goods at a facility owned by a third party, the Buyer shall either (i) indemnify and defend the Seller from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this article, or (ii) require that the third party agree, for the benefit of and enforceable by the Seller, to be bound by all the limitations included in this article. The limitations in this article shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Seller’s liability.
4. Transfer of Risks
4.1. Unless specified otherwise in writing, the risks shall be transferred to the Buyer once the goods are ready to be taken by the Buyer from the Seller’s plant before loading.
4.2. If the Buyer fails to collect the goods, Seller may store them at Buyer’s risk and expense and, following a notification of their availability, invoice them as having been delivered.
4.3. Delays in inspection of materials, according to provisions set forth in these general conditions of sale, shall not allow Buyer to delay reception of the goods, delay the payments and consequently delay the transfer of risk.
In any case, and without prejudice to any disagreement about quantity or quality of the goods, or any other that could arise between Seller and Buyer, the goods shall be always considered received and risk transferred to Buyer from the moment goods are stored in Seller’s factory, ready to be taken by the Buyer from the Seller’s plant before loading.
5. Delivery Dates
5.1. The statements regarding delivery times are made according to best discretion without being binding and shipping dates and schedules are quoted based on actual and timely receipt of raw materials in conformity with the specifications.
5.2. If the Buyer refuse to collect the goods of the order or part of the goods, Seller shall be entitled to issue an invoice for the goods supplied and store the goods.
After submitting a formal notice to the Buyer to collect the goods, Buyer shall collect the goods within 15 days from the issue of the formal notice, and reimburse Seller for all the expenses and consequences of any kind incurred by Seller for storage of the goods.
Once said period of time of 15 days after formal notice has expired, goods shall be considered abandoned, and Seller shall be entitled either to deliver, destroy, or resell them at Buyer’s expenses. Buyer waives all kind of action against Seller in that case, and shall procure a waiver from the insurance, and any other entity, customer, subsidiary or person affected.
All storage costs, fines by authorities, tariffs, custom duties and any other expenses generated as a consequence of the Buyer’s refusal to collect the goods at due time, shall be borne by Buyer, who shall indemnify and hold harmless the Seller from any damage or loss of any kind or nature.
5.3. Seller is entitled not to supply the whole quantity that customer has ordered in one delivery, but can make partial shipments by informing the Buyer in advance in writing. Each shipment is to be considered as a separate and independent transaction and may be invoiced separately.
5.4. Delays in inspections of materials by Buyer or third parties will not allow customer any further delay to collect the goods, acceptance of the consignment or payment of deliveries.
6. Prices and Payment
6.1. Goods are invoiced according to the prices stated in the confirmation of the purchase order, which must mention the purchase order submitted by the Buyer and accepted by both parties.
6.2. Unless otherwise agreed, prices are free carrier, exworks. Prices do not include any goods sale tax and/or value added taxes, customs duties or charges from insurance, tariffs associated with each order, transportation, shipping, storage, handling, or similar.
6.3. Payment will be in the currency of the offer and shall be made either prior to the collection or delivery of goods, or no later than invoice against delivery, according to the specific terms stated in order confirmation issued by Seller.
6.4. Regardless of the place of delivery of the goods or documents, the place of payment will always be Disa Automotive.
6.5. The payments should be transferred to the bank information provided by Disa Automotive on the invoice. If any bank account changes are required by Disa Automotive after the invoice is issued, this information will be communicated in writing. Its Buyer’s responsibility to check the accuracy of this bank account information by contacting its main point of contact by email and by phone and contact to Disa Automotive through its main office phone number.
6.6. Prices are limited to the purchase order to which they refer and are not binding for future or simultaneous orders.
6.7. If the means of payment agreed are by bills of exchange, promissory notes or cheques, they will not count in any case as payment until they are cashed.
6.8. Buyer will not have the right of retention of payments. An off-set of counterclaims is only permitted insofar as these counterclaims are acknowledged by the Seller as existing and due or have been finally determined as legally binding.
6.9. The formal declaration of bankruptcy of the Buyer or any other situation of insolvency (whether legally declared or not) that may suppose a notorious change in its financial position affecting its credit worthiness, will entitle Seller to claim for immediate payment, without having to be subject to the dates agreed, of all goods delivered and not yet paid by customer.
7. Delays in Payment
7.1. Failure to pay an invoice by the due date constitutes a fundamental breach of contractual obligations by the Buyer.
7.2. In the event of default in payment of one invoice on due date, Seller will be entitled to receive a fixed compensation amount as a damage provision, without prejudice of the right to claim, if existing, for more damage and/or monthly financing penalty. These will be billed by the Seller separately.
7.3. In cases of payment agreed by installments, default in payment of one installment on the due date contractually agreed, will entitle Seller to consider the contract voided by Buyer, withdraw from it and claim anticipate payment of the whole debt.
8. Retention of Title
8.1. Supplied goods shall remain Seller’s property until fulfilment by customer of its payment obligations as described above.
Should it be necessary to record the retention of title in a public register or should the validity of the retention of title otherwise require the cooperation of the Buyer, Buyer will give its approval for the registration of the retention of title, and unconditionally authorizes Disa Automotive or its legal representative to effect the registration, or the Buyer agrees to undertake the necessary cooperative action. The cost of any such registration or cooperative action shall be borne by the Buyer.
8.2. With regard to a running account of the Buyer, the property to which the Seller has reserved title shall be the security for the outstanding debt.
8.3. Buyer is not entitled to pledge or transfer as security any goods being subject to retention of title. Buyer shall immediately inform Seller about attachments or seizures or any other disposals by third parties.
8.4. Buyer is obliged to communicate to Seller all the eventualities that may affect the goods while still property of the Seller. Buyer is also obliged to designate the Seller as beneficiary of all the insurance policies covering the goods subject to retention of title.
9. Guarantees and Warranties
9.1. Seller warrants that goods it manufactures pursuant to specifications provided by Buyer shall be manufactured in accordance with such specifications (technical drawings, norms, specs, etc.), and such goods manufactured by Seller shall be free from defects in Seller supplied material and workmanship under normal use and conditions for the agreed duration by the Seller and Buyer. Seller does not warrant performance of goods manufactured pursuant to specifications furnished by Buyer and such goods are sold to Buyer on the express understanding that Seller does not warrant that such goods are fit for Buyer's purposes.
9.2. Seller warrants that goods of its own design and fabrication will perform in accordance with the performance specifications contained in Seller’s quotation while the goods are in a clean condition and properly operated within the stated and customary design limits of such goods.
9.3. Seller's obligation to remedy defective materials or workmanship is limited to Seller's option to either repair or replace the defective goods or refund or credit the purchase price as to the goods affected. No allowance shall be granted for repairs or alterations made by Buyer without Seller's prior written consent. No "in and out" charges shall be allowed regarding the expense of removing and replacing the defective goods.
9.4. Seller's warranties do not apply to goods requiring replacement because of normal wear and tear, corrosion or erosion.
9.5. These warranties shall be voided as to any part of the goods that have been subject to abuse, misuse, improper installation (to the extent not installed by Seller), operation or maintenance, accident, negligence, use other than as designed or intended, or modification not specifically authorized by Seller.
9.6. Unless otherwise agreed in writing by Buyer and Seller, Seller makes no warranty or representation that the goods will conform to any local laws, regulations, codes or standards.
9.7. The warranties set forth above do not apply to products, components, accessories, parts or attachments manufactured by other manufacturers; such being subject to the manufacturer's warranty, if any. To the extent not prohibited by the manufacturer's warranty, Seller shall transfer to Buyer such manufacturer's warranty.
9.8. Seller's maximum liability to Buyer, whatever the cause, is specifically limited to the purchase price of the goods affected.
9.9. These warranties are in lieu of all other warranties, express or implied, arising by law or otherwise, including without limitation the implied warranties of merchantability and fitness for a particular purpose, which are hereby expressly disclaimed and waived. These warranties constitute Seller’s sole and exclusive warranty for defective goods and for patent infringement and constitute Buyer’s sole and exclusive remedy for defective goods and for patent infringement.
9.10. All deliveries are subject to the normally accepted tolerances as to dimensions and weight.
9.11. Upon delivery, customer shall carry out an inspection of the goods to verify weight, length, width, and all the basic characteristics of the products according to order confirmation, and any apparent damage to the goods, or defects based on quality, quantity, or any other disagreement that could be noticed through a reasonable check shall then be noted and stated expressly by the customer in the documents of reception of goods.
9.12. Only complaints received by a certified letter with acknowledgement of receipt, or fax or email, with complete fulfilment of the conditions stated above, and within the dates stated below, will be admitted.
The preclusive dates for complaints are as follows:
- For all complaints related to disagreements between the delivery and the order about quality and quantity of the goods supplied, five working days from the receipt of the goods in the place agreed or in absence of agreement at Seller’s place.
No claims shall be accepted by Seller in respect of any defect, deficiency and failure of goods to meet the specific terms of the order after that date which a reasonable inspection should have revealed but for which such inspection was not made.
- Maximum of 12 months from delivery when related to complaints that cannot be identified by reasonable checks upon receipt and which shall be subject to the guarantee and warranties set forth in this clause.
10. Force Majeure
Any failure of performance by either Seller or Buyer shall not constitute default hereunder or give rise to any claim for damages or otherwise if, and to the extent caused by, an act, event or occurrence beyond the reasonable control of, and not resulting from the fault of the party claiming the protection of this section (an event of “Force Majeure”) including, but not limited to: unusually severe weather conditions, fires, flood, earthquakes, quarantine, blockade, labor disputes, strikes, governmental authority, war, sabotage, explosions, epidemics, lightning, injunctions, insurrection, civil strife, or any other similar events. Upon the occurrence of any event of Force Majeure, the affected party shall (a) within four (4) business days advise the other party of such event and (b) diligently pursue all reasonable efforts to minimize the effect of any such event of Force Majeure on the production of the goods or the payment of the goods, as the case may be, and to restore such party’s ability to perform hereunder. To the extent that any event of Force Majeure actually delays Seller’s ability to perform hereunder, Seller shall be entitled to an equitable adjustment to the schedule and the price
11. Environmental Management of Container Waste and Hazardous Waste
Final owner shall be responsible for environmental management according to DIRECTIVE (EU) 2018/852 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2018 amending Directive 94/62/EC on Packaging and Packaging Waste.
Seller will keep a record of all the personal data supplied by all customers by any means of communication, as all the data of customers obtained through legal data bases.
Seller will undertake all possible actions to ensure the confidential treatment of the aforesaid personal information recorded and avoid its variation, loss, disclosure or unauthorized access according to law. Buyer is entitled to have access, modify or cancel all the personal information supplied to Seller by means of a written enquiry submitted to Disa Automotive.
Information supplied could be used to communicate via e-mail new offers, incidences or proposals of commercial contacts. Once customer gives e-mail address to Seller for the first time, they are entitled to declare their refusal to continue receiving this kind of information. Seller will include in e-mail messages instructions of how to unsubscribe, if customer decides afterwards not to receive any more e-mails or commercial contacts.
Buyer expressly authorizes the assignment of the personal information supplied to branch companies for the fulfilment of the aims directly related to the functions to which were requested. Buyer gives its acceptance also to assign all personal data to insurance companies contracted by the Seller to cover default in payment risks, and to attach with the record financial information about debtor and files obtained though legal companies to ensure to the Buyer by Disa Automotive a suitable management of the credit granted.
13. Termination, Cancellation and Suspension of the Contract
13.1. Seller shall be entitled to terminate the contract if (i) Buyer is in breach of the contract, or (ii) Buyer has ceased to carry out business or is in bankruptcy.
In that event, Buyer shall pay the Seller for all the material already manufactured according to the order and compensate Seller for all damages, costs and expenses incurred.
Such compensation shall include all the custom duties, taxes, fines and penalties that could be claimed or levied to Seller for the default in exporting the material according to the order by any authority or Court, and/or any other direct or indirect damage, of whatsoever nature including loss of profit, caused to the Seller in order to hold Seller completely harmless.
13.2. If Buyer decides to cancel the whole, or a part, of the order before completion, or to suspend the performance of the contract regardless of the grounds for such termination, Seller shall be entitled, in any case to claim for payment of all the material already manufactured, and to be compensated for all damages, costs and expenses incurred.
Such compensation shall include all the custom duties, taxes, fines and penalties that could be claimed or levied to Seller for the default in exporting the material according to the order by any authority or Court, and/or any other direct or indirect damage of whatsoever nature, including loss of profit, caused to the Seller/Supplier, in order to hold Seller completely harmless.
14. Place of Jurisdiction - Applicable Law and Languages
14.1. All disputes, controversies, or claims arising out or in connection with the contract, including any questions as to the existence, validity, termination, discharge, breach or enforceability of the contract and of this paragraph, shall be finally settled by three arbitrators in accordance with the arbitration rules of the International Chamber of Commerce in force at the date hereof. The arbitration shall be held in Tekirdag, Turkey and shall be carried out in Turkish or English language. However, Disa Automotive is also entitled to assert any claims against the Buyer at its home country.
No other clause in the general conditions of the Buyer can prevail in any case over this agreement. The absence of rejection to the clauses of place of jurisdiction set in Buyer’s general condition shall never suppose its acceptance by the Seller.
14.2. All legal relations between Seller and Buyer not explicitly regulated in this contract shall be subject, in addition to these terms and conditions, exclusively to Spanish law as the law of the Seller’s place of business.
14.3. If this conditions of sales are made known to Buyer in another language, in addition to the language in which the sales contract has been concluded, this is merely done for Buyer’s convenience. In case of different interpretation, the English version of the contract language shall be binding.
Document no: SRT-287-00
Last revision date: 28.12.2020