Distance Selling Agreement
1. PARTIES
Safaş Tekstil Turizm İnşaat Sanayi ve Ticaret Anonim Şirketi, located at Demirtaş Dumlupınar OSB Mahallesi Leylak Sokak No:3 Osmangazi/Bursa, (hereinafter referred to as “Seller” or “Fioretta”) and on the other side the “Buyer”.
The Seller and the Buyer are hereinafter collectively referred to as the “Parties” and individually as the “Party”.
2. SUBJECT
This Agreement regulates the mutual rights and obligations of the Parties regarding the sale and delivery of the goods (“Products”), which were ordered electronically by the Buyer from the Website with the domain name www.fioretta.com belonging to the Seller (“Website”), based on the product description and sales prices specified on the Website.
3. PROCEDURE
Within the scope of this Agreement, the process between the Seller and the Buyer proceeds as follows:
a) The Buyer places a pre-order through the Website.
b) The Seller draws up the Agreement and its annexes in accordance with the pre-order and submits it to the Buyer’s approval.
c) With the approval of the Buyer, the Agreement is deemed to have been established. In cases where payment is made with the virtual pos integrated into the Website, the Agreement is deemed to have been established without any further approval from the Buyer.
4. PRODUCTS
The Seller shall deliver the Products, which are ordered by the Buyer from the Website and specified in the Annex-1 to the Buyer in the right quantity and according to the product description specified on the Website
5. PRICING, PAYMENT TERMS AND BANK ACCOUNT
5.1. The Buyer is obliged to pay the Seller the Price specified in the Annex-1 according to the quantity of Products purchased (“Price”). The prices on the Website for the Products can be different from the Price specified in the Annex-1. The Buyer agrees that under all circumstances, the Price specified in the Annex-1 is the sole valid price for the Products.
5.2. If the Buyer makes a purchase over the virtual pos integrated into the Website, the Price specified in this Agreement or its annexes shall be deemed to have been paid upon the Seller’s receipt of the payment in full amount.
5.3. All payments under this Agreement shall be made in the currency specified in the Annex-1.
5.4. The payment of the Price shall be made by the means and in the period (“Payment Periods”) determined in the Annex-1.
5.5. Payments made to a place or a person other than the one specified in the Annex-1 shall be invalid. In such a case, the Buyer’s obligation to pay to the Seller shall remain the same, and all losses incurred by the Seller shall be covered in cash upon the first request.
6. FAILURE TO COMPLY WITH A PAYMENT DEADLINE
6.1. For purchases in which the Parties have decided for the payment to be made after the delivery of the Products, the Seller is entitled to interest on the Price accumulated from the date the payment became due if the Buyer fail to pay the Price on the due date. In this event the interest rate shall be 5% per month and will be paid upon the request of the Seller.
6.2. The Buyer accepts, declares and undertakes that it shall pay the penalty amounting to the Price to the Seller in cash in full amount, unless the Buyer pays the Price within the Payment Periods determined in the Annex-1.
7. DELIVERY
7.1. The Products ordered by the Buyer shall be delivered to the address (“Delivery Address”) specified in the Annex-1. The Delivery Address shall be determined according to the Buyer’s written request. The Buyer is solely responsible for the accuracy of the information regarding the Delivery Address. The Buyer cannot claim any rights or receivables from the Seller under any name, claiming that the Products were not received by authorized persons or delivered to the correct address.
7.2. The Buyer is responsible for any damages that may arise if the Products are not taken delivery of on time by the Buyer from the Delivery Address. The Buyer is also responsible for any expenses (warehouse, storage, etc.) that may be made by the Seller due to the late delivery or non-delivery. The Buyer shall pay all kinds of damages and expenses arising from the late delivery or non-delivery in cash and in full within 3 Business Days from the Seller’s request in this regard.
7.3. Orders cannot be cancelled, changed or assigned to a third party by the Buyer without the prior written consent of the Seller.
7.4. The Seller shall deliver the Products in time and by means of transport specified on the Website unless agreed otherwise.
7.5. The Buyer accepts, declares and undertakes that the way the Products are packaged is at the Seller’s disposal unless agreed otherwise. The Seller shall package the Products in accordance with the information given on the “Packaging & Shipping” section of the Website.
7.6. Any transportation costs arising from the shipment of the Products by air, sea or land shall be borne by the Buyer, unless agreed otherwise.
7.7. Should the Buyer request the Products to be shipped through its own preferred shipper, then any damage of the Product that may occur during transportation shall belong solely to the Buyer and the Buyer shall not make any claim from the Seller in this regard. Should the Buyer request the Products to be shipped through the Seller’s shipper, then any damage of the Product that may occur during transportation shall be investigated by the Seller provided that the Buyer (i) immediately informs the shipper regarding the damages, and (ii) immediately informs the Seller with valid evidence showing the damages to the Products. The Seller shall initiate an investigation towards the shipper and upon confirmation that the Products were damaged in transit, the Seller shall, in its sole discretion; either send undamaged replacements or refund the value of the damaged Products to the Buyer.
7.8. Any costs incurred in collecting, handling, loading, carrying, insuring, etc. the Products shall be also borne by the Buyer unless agreed otherwise.
7.9. The Seller represents and warrants that the content on the Website, such as the product images and product information, is accurate and the Seller has all rights, authorizations, permits or licenses to supply and sell the Products to the Buyer; and the Products (including the packaging) are and shall be legitimate and abide by the applicable law.
8. DEFECTS, EXAMINATION AND LIABILITY
8.1. The Seller shall not be liable for any defects of the Products except the ones caused by the gross fault of the Seller. Defective Products include the Products with production defects, or products that are damaged or grossly inconsistent with the Product description provided on the Website (in terms of size, color, etc.) (“Defect”).
8.2. The Buyer has the opportunity to purchase samples of the Products before ordering the Product by only paying the shipping fee. The Buyer accepts that these are not the stock cuttings from the Products to be shipped so there may be a reasonable tonal difference in color (+/- 5 ΔE) between the samples and the Products sent by the Seller. Such tonal differences shall not be considered as a Defect and the Buyer shall not be able to exercise the rights set forth in this article due to such tonal differences. However, color differences exceeding the reasonable tonal differences shall be considered as Defects and the Buyer may exercise the rights set forth in the articles hereunder. The provision of the Article 8.3 is reserved.
8.3. Article 8.2. is also applicable for repeat orders from the Buyer i.e. for any tonal differences in color between the same Products shipped to the Buyer under different orders. However, if the same color tone is required, after placing a repeat order from the previously purchased Product, the Buyer may choose to receive a cutting from the Products to be shipped. In this situation, the Buyer may claim his rights under the Article 8 and cancel the order even if the tonal difference in color between the cutting and the previously purchased Product is below +/- 5 ΔE or the Buyer may request a new sample.
8.4. Defect claims for the Products shall be reported to the Seller in writing as soon as possible, but not later than 20 (twenty) Business Days (“Business Day” shall mean any day except for Sunday or a public holiday in Turkey) after the delivery date of the Products.
8.5. The Buyer is obliged to prove the Defects by the satisfactory evidence (e.g. photographs showing all defects, expert report etc.) attached to the Defect claim. If the satisfactory evidence is not provided, the Seller shall not be liable.
8.6. The Seller shall respond to the Buyer’s Defect claim within 7 Business Days in accordance with the procedure specified in this article. If any Defect detected is caused by the Seller’s gross fault, the Buyer shall be able to use the rights specified below.
8.7. If there are any discrepancies in the quantity of the Products sold through the Website by the Seller i.e., the quantity provided by the Seller is less than the quantity ordered by the Buyer (“Short Quantity”) or more than the quantity ordered by the Buyer (“Unwanted Quantity”) then the Buyer shall not be liable to pay for the Unwanted Quantity unless the Buyer places another order from the same Products. In this case, the Buyer shall pay the price of the Unwanted Quantity which shall be calculated proportionally according to the prior order. However, in case of a Short Quantity, the Seller shall return the price of the said quantity which shall be calculated proportionally according to the total Price. Whereas for the Products sold with an installment payment plan, a tolerance rate equivalent to +/-10% for the quantities sold will apply, unless stated otherwise by the Seller.
8.8. If the Defect in the Product is a Defect that can be removed by applying a treatment (i.e. washing) to the Product, the Buyer may apply this treatment at the Seller’s expense. The Seller shall make the payment relating to the treatment within 10 (ten) Business Days after the invoice of the relevant transaction is sent to him. However the Seller shall not be liable for other defects which may occur during the treatment process.
8.9. In the event that a Product other than the one specified in the Annex-1 is delivered to the Buyer (i.e. the Product with pattern differences or color differences other than the reasonable tonal differences), the Buyer may request the Seller to send the Product specified in the Annex-1 at the Seller’s expense, or request a refund. In such a case, the Buyer shall keep the faulty Products free of charge, unless specified otherwise by the Seller.
8.10. If there is a Defect in a part of the Product, the Buyer may request a proportional refund from the Seller for this part. However, if the part with the Defect in question results in the Buyer not being able to benefit from the Product at all, a full refund can be requested.
8.11. In cases where there are small Defects in the Products, and the Buyer qualifies for the right to request a refund from the Seller pursuant to this article, including the refund of the expanses made within the scope of the Article 8.5., the Seller may, instead of refunding the agreed amount, provide a discount in the same amount on the Buyer’s next order from the Website. The Seller can decide whether to provide a refund or make a refund in its sole discretion. If the Seller decides to provide a discount on the next order from the Website, the method in which this discount shall be applied (e.g. a discount coupon) shall be solely at the Seller’s discretion.
9. TERM AND TERMINATION
9.1. This Agreement, by its nature, shall remain in effect until the Products are delivered to the Buyer and the Price is transferred to the Seller.
9.2. This Agreement can be terminated only by mutual consent before the date of shipment.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. The Buyer shall not use the Seller’s trademarks orally or in writing without the written permission of the Seller, beyond the scope of the resale.
10.2. The Buyer accepts, declares and undertakes to refrain from any activity that may damage the name, trademarks, sale and distribution rights, brands and products of the Seller.
10.3. The Buyer accepts and undertakes to refrain from any sorts of acts, actions or activities which may infringe the intellectual property rights of the Seller or cause any impression that those rights belongs to the Buyer. The Buyer cannot engage in production of products having the same or similar brand as the Seller’s brand and cannot use the Seller’s brand in its commercial or company name. If any third parties claim any rights as to the Seller’s intellectual property rights, or if the Buyer becomes aware of a breach of the Seller’s intellectual property rights, the Buyer shall inform the Seller thereof immediately.
10.4. The Buyer shall carry out its activities in relation to the resale of the Products in a manner that does not impair the Seller’s trademarks and reputation and in accordance with the applicable retail and consumer legislation. The Buyer shall refrain from any sorts of misleading, misrepresenting or unethical activities or advertisements and unfair competition.
10.5. The Seller represents and warrants that it has the legal title and rights to the intellectual property relating to the Products supplied to the Buyer pursuant to this Agreement.
11. GOVERNING LAW
11.1. Any and all disputes, controversies and claims arising out of or relating to the rights or obligations of the Parties and their respective permitted successors and permitted assigns under this Agreement, or with respect to the interpretation of this Agreement, shall be first discussed between the Parties for a period of thirty (30) Business Days in an attempt to resolve such dispute amicably.
11.2. If the Parties are unable to resolve the dispute within thirty (30) Business Day period, the said dispute or controversy shall be referred to and finally resolved by İstanbul Central (Çağlayan) Courts and enforcement offices.
11.3. If any matters are not covered by the provisions of this Agreement, this Agreement is governed by the Turkish Law.
12. FORCE MAJEURE
12.1. The Parties shall not be liable in a case of an event beyond their reasonable control including but not limited to acts of God, Fires, Explosion, Natural Disaster, Floods, Epidemics, Strikes, Lockouts, Labor Trouble, Injunctions, Wars or Riots, Compliance with Laws, Regulations, Order or Legal actions (“Force Majeure”) occurring in a manner to suspend the activities of any of the Parties, partly or completely, temporarily or permanently. The non-liability of the Parties is restricted with continuation of these events. The occurrence of the force majeure shall be immediately communicated to the other Party in writing and certified by official documents. In the event that the period of the force majeure event exceeds 30 (thirty) days, the Parties have the right to terminate the Agreement immediately and without any compensation following a written notification.
12.2. The right of termination according to this Clause cannot be used after the Products are handed over to the shipper by the Seller in accordance with the delivery terms of this Agreement. In case the right of termination is used pursuant to this Clause, the Parties shall not be entitled to claim from each other any damages arising from the delay or the non-performance of the Agreement.
13. CONFIDENTIALITY
13.1. Business plans, research results, strategies, financial information, technical properties, procedures and all sorts of other information excluded from the public domain, relayed by either Party for the purposes of this Agreement and its performance shall constitute confidential information (”Confidential Information”).
13.2. The Parties mutually and reciprocatively undertake to keep all Confidential Information private and to use the information only for the purposes of this Agreement herein.
13.3. Information within public records, publicized information or information disclosed based on a court decision or an administrative order shall not constitute Confidential Information.
13.4. The mandatory disclosure of information disclosed upon request from official authorities shall not violate the terms of the Agreement; in this case, the Parties agree and undertake not to disclose any more information than requested. Additionally, when such disclosure is requested, the Parties shall notify each other of this matter immediately.
13.5. The obligation to keep the Confidential Information of either Party private shall remain valid even if the Agreement becomes terminated. In case that the Confidential Information is disclosed in violation of the Agreement, the disclosing Party shall cover all damages and losses of the effected Party.
14. OTHER PROVISIONS
14.1. No Waiver. Non-exercise of any rights under this Agreement by either Party shall not be deemed as a waiver of those rights by such Party.
14.2. Evidences. The Buyer agrees that the official books and commercial records of the Parties and the e-archive records, electronic information and computer records kept in the Seller’s database and servers shall constitute binding, definitive and exclusive evidence in disputes that may arise from this Agreement.
14.3. Notices. The addresses of the Parties indicated in this Agreement, are the valid notification addresses and unless any changes in such addresses are notified to the other Party, any notifications sent to the said addresses shall be deemed to have been served properly and they shall bear the consequences of the provisions and results of such notification. The notifications in relation to default notice, termination or revocation of the Agreement shall be made through a notary public, registered mail, or by a courier with a return receipt. All other notifications which are not legally required to be made by formal means can be made via e-mail.
14.4. Amendments. Any changes of any terms and conditions of this Agreement shall be valid and effective only if they are made in writing and signed by both Parties.
14.5. Severability. If any provision of this Agreement is declared invalid or unenforceable by any jurisdiction, it is mutually agreed that the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to agree on a valid and enforceable provision which shall be a reasonable substitute for the invalid or unenforceable provision in accordance with the intent of this Agreement.
14.6. Relationship. The relationship of the Parties is that of the independent contractors, and nothing in this Agreement creates a partnership, joint venture, employment or agency between them.
14.7. Entire Agreement. This Agreement including the Annexes and any Schedules attached hereto forms the entire agreement between the Parties with respect to the subject matter herein, and supersedes and replaces any and all previous agreements, commitment or understanding between the Parties.
This Agreement consists of thirteen (14) clauses and seven (9) pages. The Parties hereby agrees, declares and undertakes that they have fully read, understood and accepted this Agreement in its entirety. By approving this Agreement via the specifically prepared platform of the Website, the Buyer is deemed to have accepted and agreed to its provisions.