1.1. Scope of application
1.1.1. The present General Terms and Conditions apply to all sales of the Product (as defined hereafter) between Alp Celik San. Ve Tic. A.S., with registered office in Sekerpinar Mah., Turkcan Sok. No:6, Cayirova/KOCAELI – TURKEY, VAT no. and fiscal code 0550044023 (the ‘’Seller’’ ) and the ‘’Buyer’’.
1.1.2. Where applicable, the Buyer enters into the present Agreement in the name and on behalf of third parties (whether subsidiaries of or associated to the Buyer) as indicated in Annex A to the present Agreement (the ‘’Other Buyers’’ ) which will therefore be bound by the present terms and conditions; the Buyer undertakes to have any Other Buyer signing for subscription the present General Terms and Conditions, being understood that in case the Buyer fails to comply with the provision above, Alp Celik San. Ve Tic. A.S. reserves the right to request the subscription of any other Buyer and that the placement of an Order by any Other Buyer will be considered as express acceptance of the present General Terms and Conditions.
1.1.3. The Buyer guarantees to Alp Celik San. Ve Tic. A.S.all the obligations referable to any Other Buyer and undertakes to hold Alp Celik San. Ve Tic. A.S. harmlessfor any failure of the Other Buyer.
1.1.4. In case the Order is placed by the Other Buyer, Alp Celik San. Ve Tic. A.S.and the Buyer will agree upon invoicing terms in accordance to the law.
1.1.5. It is understood that in case the indication of a third party by the Buyer is not referred to thepurchase of products but to the place of destination or manufacture of suchproducts, every Order will be deemed to be issued by the Buyer and not by the third party.
1.2. Formation of the contract
1.2.1. Any Order placement by the Buyer constitutes full and unconditional acceptance of the present General Terms and Conditions. The present General Terms andConditions might be waived by the Parties only in writing, and even in that case the present General Terms and Conditions shall continue to apply for the parts which have notbeen waived.
1.2.2. Any Buyer s general conditions shall not apply, not even partially, if not expressly accepted bythe Seller. The same disposition shall apply in relation to any annex to thepresent General Terms and Conditions or to the Orders placed by the Buyer which contain provisions (a) concerning guarantees, performances and applications of the Productand/or (b) Seller s liabilities terms different from the ones contained hereto and/or (c) in any case represent a modification of the Seller s rights contained herein, in relation tosuch provisions.
1.2.3. The beginning of the execution of the agreement by the Seller, in absence of any specificwritten acceptance of contractual conditions proposed by the Buyer, differentfrom the ones contained in the Seller s proposal, does not imply their acceptance. In case the execution of the agreement takes place before the subscription of the presentGeneral Terms and Conditions, such General Terms and Conditions shall immediately apply if published on the Seller s website or ifanyway communicated in writing to theBuyer and not challenged by the Buyer itself or in absence of a request for modification before the placement of the first Order.
1.3. Modifications of the agreement
1.3.1. Any modification to the agreement, proposed by the Buyer, shall apply only if expressly accepted in writing by the Seller.
2. SUBJECT MATTER OF THE AGREEMENT
2.1.1. The present General Terms and Conditions regulate the relationships between the Seller and the Buyer established from time to time through an Order.
2.1.2. The Order concerns the products of the Seller (the ‘’Products’’ ), being understood that the Seller shall have the right not to accept orders for products and quantitiesdifferent from the originalOrder.
2.2. Technical Specification
2.2.1. The Products are described in the technical specification (the ‘’Technical Specification’’), that indicates the technical, constructional, functional, esthetical, quality andsafety features, withreference to the Product and that will constitute an integral part, together with the present General Terms and Conditions and the Order, of the relationshipsreferred to the purchase of the Product.2.2.2. It is understood that in case the Parties (a) are intentioned to prepare the TechnicalSpecification only at the time of the placement of the first Order or (b) agree to modifythe content in relation to the variation of the Products during the execution of any individual order, the TechnicalSpecification will be enclosed respectively to the first order or tothe following Orders, without prejudice to the terms and conditions agreed upon hereto.
2.2.3. Any modification or variation to the content of the Technical Specification shall be agreed upon in advance between the Parties in writing.
2.2.4. The allowances (quality, weight etc.) agreed upon shall be indicated in the TechnicalSpecification.
2.2.5. It is understood that in case the Technical Specification is arranged by the Buyer, the Buyeritself will assume the responsibility in relation to the technical, constructional,functional, esthetical, quality and safety features of the Product.
2.3. Non-binding details
2.3.1. Weights, dimensions, capacities, prices, performances, and all other data included in thecatalogues, prospectus, circulars, illustrations and price lists are approximateindications. Such data will not be binding if not otherwise expressly indicated in the agreement.
2.4. Order, Forecast and minimum guaranteed
2.4.1. The supply of the Products will be done for the quantitative and the types of Product specifiedin each Order.
2.4.2. Products purchase forecasts of the Buyer are indicated in the summary (the ‘’Forecast’’ ) with specification of the timing for such purchase.
2.4.3. Buyer shall provide the Seller with periodic forecasts that shall indicate the Products quantities that the Seller will be requested to sell as well as the delivery dates foreach calendar month.
2.4.4. The Buyer shall promptly inform the Seller in writing in relation to any material modification of the Forecast.
2.5. Minimum Guaranteed Purchase
2.5.1. The Buyer undertakes to purchase the minimum guaranteed quantitative agreed between the parties (the ‘’Minimum Guaranteed Purchase’’ ) for the different types ofProducts and for the schedules contained thereto. The Buyer acknowledges that its obligation to purchase the Minimum Guaranteed Purchase has an impact on the Sellerorganization and production activity.
2.5.2. In case, at the end of each relevant period, the quantity of Products actually purchased by the Buyer (the ‘’Products Actually Purchased’’ ) turns out to be lower than theMinimum Guaranteed Purchase, the Seller shall invoice the Buyer for the Price multiplied for the difference between the Minimum Guaranteed Purchase and the ProductsActually Purchased.
3. DURATION AND OBLIGATIONS AFTER THE EXPIRATION OF THE AGREEMENT
3.1.1. It is understood that the present General Terms and Conditions shall apply also in the period of Phase Out as indicated in the following
3.2. Phase Out
3.2.1. ‘’Phase Out’’ indicates the period of time between the delivery date of the last Order placed by the Buyer and a period of time of 3 (three) months. The Buyer shallexpressly specify that such Order shall be the last one of the series of supply.
3.2.2. During the Phase Out period:
(i) All the assets and raw materials that are property of the Buyer (or purchased and/or produced by the Seller on Buyer s behalf) that are used or could be usedby the Seller for the production of the Products shall be identified and collected and/or dismantled in order to let the Buyer, at the end of such period, to get them back with thecosts of identification, collection, dismantling and transportation at its own expenses;
(ii) All the work in progress in relation to the Order and any other work in progress and/or remaining Products related to previous Orders which have not collected yet by theBuyer and/or Productswhich the Buyer should have ordered pursuant to the threshold of the Minimum Guaranteed Purchase (unsold pursuant to art. 2.5.2. above) shall bepurchased and collected by the Buyer, unless otherwise indicated in writing by the Seller.
3.2.3. During the Phase Out period, the Buyer gives the Seller the right of first negotiation of further supplies for terms and conditions not less favourable than the market’sconditions.
4.1.1. Any reference to commercial terms (such as DAP, DAT, EXW, etc.) shall be considered as reference to the Incoterms of the International Chamber of Commerce, 2010edition.
4.2. Delivery terms
4.2.1. Unless differently agreed in each Order, the delivery term indicated in each Order shall be considered suggestive and not binding, and it begins to run from the last of thefollowing dates:
(i) the date of conclusion of the agreement, following acceptance of the Order by the Seller;
(ii) the date of receipt by the Seller of the down payment, which the Parties may have agreed upon before the delivery of the Products.
4.2.2. Upon expiry of the delivery term, the Seller has the right to a reasonable ‘’grace period’’ starting from the end of the contractual term. Only upon expiration of such grace period the Seller can be considered liable for any delivery delay.
4.2.3. If the delivery is delayed because of any of the circumstances provided for by article 10, or of an act or omission of the Buyer, an extension of the delivery term, taking inconsideration reasonably all the circumstances of the case, shall be granted.
4.2.4. In case of delays in the delivery caused by the Seller after the expiration of the grace period provided for by article 4.2.2., the Buyer could request, after formal written notice to the Seller, the indemnification of the actual damages suffered and proved by the Buyer, within the maximum limit of 10% of the price of the Products delivered with delay.
4.2.5. If the Buyer does not collect the Products in the place and time indicated in the agreement for whatsoever reason which cannot be attributed to the Seller, the Buyershall in any case perform all the payments under the agreement as if the Products were delivered. In that case, the Seller shall take care of stocking the Products, at the Buyer’sown expenses and risks. In addition, the Seller has the right to be reimbursed for all the proved expenses which it may have incurred in during the execution of the agreement,among which, as mere example, stocking expenses not covered by the payments received, save the right to any other action against the Buyer due to the failure of Products collect.
4.3. Shipping documents
4.3.1. Unless otherwise agreed, the Seller shall determine the route and means of transportation, as well as the selection of forwarding agents and carriers.
4.3.2. Unless otherwise agreed, the documentation concerning the delivery, marking, packaging, labelling, identification, as well as collection, shipping, transport, delivery andrendering of the Products shall be implemented by the Seller in accordance logistic processes.
4.3.3. The Seller shall be entitled to use telematic shipping notices, in compliance with its operating standards.
5. TRANSFER OF THE RISK – TRANSFER OF THE OWNERSHIP
5.1. Transfer of the risk
5.1.1. Unless otherwise agreed between the Parties, the risks will pass to the Buyer at the arrival of the Products in the place agreed upon for the delivery and from the momentin which the Buyershould take over the Products delivered pursuant to the applicable Incoterm 2010.
5.1.2. The Seller shall not be liable in any case for deterioration of or damages to the Products which have occurred after the transfer of risks. The Buyer is not released fromany obligation to pay the Price if the deterioration or damages to the Products occurs after the transfer of the risks.
5.2. Transfer of the ownership
5.2.1. The transfer of the ownership on the Products to the Buyer shall take place exclusively upon integral payment of the Products.
5.3. Retention of ownership
5.3.1. In case of deferred payments, the Products shall remain property of the Seller until the integral payment of the Price, in the measure allowed by the law of the Country inwhich the Products are located.
5.3.2. The Buyer undertakes to do all is necessary to constitute a valid retention of ownership in the most extended form possible, or to constitute an equal guarantee (such asSecurity Interest, etc..), in favour of the Seller; the Buyer undertakes to cooperate with the Seller to implement all the necessary measures to protect the Seller’s right ofownership. The Seller is entitled to carry out all the necessary formalities in order to make the Seller s retention of ownership right enforceable against any third party.
6. PRICES - PAYMENTS
6.1.1. Prices applied on the sale of Products are indicated in the Seller price lists (‘’Prices’’ ).
6.1.2. Prices of Products are revised taking into account the following:
(i) Variations of costs for the Seller for purchasing raw materials and for the production process;
(ii) Volumes of Products ordered by the Buyer;
6.1.3. Whether the Parties do not agree on the Prices revision, Prices applied to the last Order apply to the supply of the Products in the process to be manufactured and of theProducts for whose production the Seller already ordered the relevant raw materials.
6.2. Terms and conditions for payment
6.2.1. Standard terms of payment are per payment prior to delivery. However , If the Parties agreed to postpone the payment after the delivery, the payment must be done, unless otherwise specified, at most within thirty (30) days after the invoice date, by means of bank receipt, bank transfer or other agreed means of payment. The payment is deemed to be done when the money is available for the Seller in his Turkish bank.
6.2.2. Where the Parties agreed to anticipate the payment before the delivery without any further specification, it is presumed the payment refers to the entire Price. Unless theParties agree otherwise, the anticipate payment must be done on the Seller s checking account at least thirty (30) days before the agreed date of delivery.
6.2.3. Where the Parties agreed on the payment to be carried out by letter of credit, the Buyer, unless otherwise agreed, shall ensure that an irrevocable letter of credit, issuedaccording to ICC s Uniform Customs and Practice on letter of credit (Publication n. 500), will be notified to the Seller at the order confirmation. The letter of credit shall beattested by a Turkish bank among the ones the Seller likes and, unless otherwise agreed, shall be payable at sight.
6.2.4. Where the Parties agreed on the payment against documents, the payment will be, unless otherwise agreed, Documents Against Payment.
6.2.5. Unless otherwise agreed, potential costs or bank commissions due in relation to the payment are to be paid by the Buyer.
6.3. Traceability and dedicated checkingaccount
6.3.1. The Buyer, in his Order, shall expressly specify if the ordered Products are directly or indirectly intended for public bodies agreements supplies, so that the Seller cancarry out the traceability obligations provided for in article 3 of Law 13 August 2010 no. 136, particularly for what concerns the declaration about the dedicated checking account.
6.4. Default interests
6.4.1. In case of a delay in payment with respect to the agreed deadline, the Seller is entitled to receive 3% over the debt per month from the buyer without further delay. Until the day of the actual payment. It is understood that the Seller keeps his rights to claim for any possible damage.
6.5. Consequences of a delay in payment or of a failure to pay
6.5.1. A delay or a failure in paying entails that:
(i) the Seller can stop the execution of the current Orders and refuse to accept new orders until the unpaid invoices and all additional fees are fully.
(ii) after sending a written warning for the payment to be carried out within the following fifteen (15) days, the Seller can ask for the immediate full payment of all the unpaid invoices, regardless of their expiration date;
(iii) after sending a written warning for the payment to be carried out within the following Ten (10) days, the Seller can terminate all the agreements entered into with the Buyer. Such termination will have effect on all the Orders which have not yet been paid, whether or not the relevant Products have been delivered, regardless of the delivery date.
6.5.2. If the Buyer s failure in fulfilling his contractual obligations turns out to be due to financial problems (in particular, in case of stop in paying, enter in a insolvency procedure,experience repossession of goods or executions, notification of unpaid bills or allowances and revocation or reduction of financial loans, either between the Parties or in relationto third parties), the Seller can, at his discretion, ask for payment of the unpaid invoices and/or suspend the supply of Products until the Buyer pays or gives the Seller a paymentguarantee in the form the Seller prefers.
6.6. Set off – suspension of payments
6.6.1. The Buyer cannot set off the amounts due to the Seller vis-à-vis any credit or claim, neither with compensations for damages according to article 4.2.4., unless authorizedto do so by the Seller.
6.6.2. Where the Seller authorizes the Buyer to carry out a set off, the maximum amount of money the Buyer can set off in case of damages resulting from defect or failure of the Product will be equal to the Price of the defected or failed Product.
6.6.3. Any claim arising from the Buyer or anyhow arising between the Parties cannot suspend or delay the Buyer s obligation to pay the due amount at the due date, nor the other obligations agreed on, and the Parties expressly waive any exception whatsoever.
6.6.4. If the buyer wish to place a claim he must first receive the sellers confirmation to return goods for inspection and follow the agreed payment terms. The compensation will be set and agreed upon after the seller will test the returned goods. The maximun compensation will never exeed the value of the goods on Ex works ( per INCOTERMS 2000) basis.
6.7. Payment guarantees
6.7.1. If the parties agreed that the payment must come with a bank guarantee, the Buyer, together with the order confirmation, shall provide the Seller with a bank first demandguarantee, issued according to the ICC s Uniform Rules for Demand Guarantees by a primary Turkish bank and payable against simple Seller s declaration of not having receivedthe payment within the agreed deadline.
6.7.2. Save for what is fixed by article 1.1.3 above, other possible forms of guarantee released by the Buyer for purchases done by Other Buyers will be ruled by a separateguarantee agreement.
6.7.3. The Parties can agree on specific payment guarantees in favor of the Seller (suretyship released by a primary bank or insurance agency; registration of a mortgage uponreal estate or machinery). The Parties agree on such guarantees in a separate act.
6.7.4. In case the Buyer or his guarantors do not perform the agreed guarantees according to the agreed terms and conditions, the Seller can suspend the execution of hisobligations and the Buyer shall not have anything to claim. After thirty (30) days from the expected day of the guaranteepayment the Seller can terminate the agreement.
7. CONTROLS CERTIFICATIONS PRODUCTS GUARANTEE
7.1. Controls and returned goods
7.1.1. Immediately after receiving the Products, the Buyer shall examine the packaging to detect any sign of damage or tampering. In case the Buyer finds some damages or alterations, he has to immediately communicate it to the carrier and write it on the delivery note. General reports as ‘’damaged packaging’’ or ‘’accepted with reserve’’ , withoutindicating the specific damage or the number of damaged packages is not enough. An acceptation with reserve of theProducts without a reason or with an ungrounded reasonis not effective.
7.1.2. As soon as the Products reach the place of delivery, the Buyer shall verify the products and the transport documents. The Buyer, within two (2) working days from thereception shall communicate in writing to the Seller any failure or damage of the Products, loss occurred during the transport or mistakes in the documentation. After such periodof time, the Products shall be deemed fully and unconditionally accepted by the Buyer.
7.1.3. The prior and explicit consent of the Seller is an essential condition to the return of the Products. Products returned without such consent are deemed accepted by theBuyer.
7.1.4. If the Seller gives his consent to the return of the damaged Products for their reparation or substitution, the Buyer bears the risk and the costs of the transport, unlessotherwise agreed. The costs and risk of the restitution of the repaired or substituted Products to the Buyer will be borne by the Seller, unless otherwise agreed.
7.2.1. The Seller, if asked to do so by the Buyer, shall give the Buyer the quality certificates referred to in the Technical Specification or in any other document attesting the compliance of the Products with the specific information set forth in the Technical Specification.
7.2.2. The Parties can agree on the issuance of further quality certificates by independent certification bodies (i.e. bureau veritas) or the issuance of certificates by subjects appointed by the Buyer. Save for any different agreement to the contrary, the costs of such further certifications shall be borne by the Buyer.
7.3.1. The Seller guarantees that all the Products comply with the Technical Specification and to the issued certificates (within the tolerance levels of compliance either set forthin the Technical Specification, agreed by the Parties or according to international standards) for Three (3 ) months from the delivery of the Products or according to pre order agreement by both seller and buyer.
7.3.2. The Seller does not guarantee the correspondence between the Products and particular requisites or technical characteristics or their suitability to a specific use (made bythe Buyer or other final users) if those requisites and characteristics have not been expressly mentioned in the documents of the agreement.
7.3.3. The Seller’s guarantee does not cover the defects deriving from a faulty workmanship, maintenance or repairing process carried out by subjects different than the Seller or his delegates, nor covers the defects deriving from the normal wear and tear. The Seller is not responsible for compliance defects and for faults caused after the burden of therisks passed to the Buyer.
7.3.4. The guarantee hereof absorbs and substitutes the guarantees and liabilities provided for by the law and excludes any other liability of the Seller however caused by theProducts; in particular the Buyer cannot claim for other damages, price reduction or termination of the agreement. Once the guarantee expires no claim can be made against theSeller.
7.3.5. The guarantee hereof is granted by the Seller only to the Buyer and does not operate towards third parties such as Buyer’s clients, unless otherwise agreed in writing.
7.4. Disputes – Remedies
7.4.1. In case of defects, lack of quality or conformity of the Products, the Seller must either repair or substitute the defective Products, at his sole choice. It is up to the Seller to ask the Buyer the scrapping on site, being understood that the Buyer will receive a compensation amounting to the value of the Product minus the value of the scrapped item, or the downgrade on site.7.4.2. Even during the guarantee period, possible faults or defects of the delivered Products cannot be denounced by the Buyer if the Products have already been used by the Buyer or incorporated in products, machinery or plants of the Buyer’s final customer.
7.4.3. To take advantage of the remedies set forth under article 7.4.1., the Buyer must notify in writing to the Seller the faults, lack of quality and defects according to the applicable law / international standards. It's the buyers responsibility to specify the reason of the claim. The buyer must specify the heat number , invoice number , size , shape & quantity of the claimed material. Failing to submit the all required details will eliminate the buyers right to claim.
7.4.4. The Seller can, at his sole discretion, carry out inspections and verify the Products claimed to be defected. Where the Seller, after the inspection, does not acknowledgethe defects denounced by the Buyer, the Seller and the Buyer shall make any reasonable effort to find an amicable solution.
7.4.5. Where the Parties do not come to an amicable solution, the dispute shall be decided by a Turkish independent expert , according to the following procedure:
(i) the Party that intends to start the procedure shall communicate it in writing to the other party, indicating the expert it wants to appoint;
(ii) within ten (10) days after receiving such communication, the other Party can accept the suggested expert, by written communication; in such case the expert is deemed appointed;
(iii) where the indicated expert is not accepted within ten (10) days, an expert will be appointed by the Istanbul Arbitration Chamber, upon request of the most diligent Party;
(iv) the expert so appointed shall decide upon the dispute within thirty (30) days from his appointment, determining the Party that shall bear the burden of the technical report (orthe way the relevant cost shall be shared between the Parties);
(v) the expert shall promptly and simultaneously communicate his decision to the Parties;
(vi) the expert decision shall be binding for the Parties.
7.4.6. The Buyer will not repair nor substitute the Products claimed to be defected, nor will ask a third party to carry out such operations during the procedure set forth in article7.4.5., unless authorized to do so in writing by the Seller.
8. LIMITATION OF LIABILITY – LIMIT OF THE DAMAGES
8.1. Limitation of liability
8.1.1. The Seller shall not be deemed liable for any indirect or consequent damage caused by the Products, included, by way of example, (direct or indirect) profit loss, turnoverloss , withdrawal of Products.
8.1.2. The Buyer cannot claim any compensation for injuries to people or damages to objects other than the Products, unless it is clear from the circumstances that the Seller acted with gross negligence.
8.1.3. ‘’Gross negligence’’ does not include any failure in caring or checking, but it specifically means an act or omission of the Seller that implies either a failure in taking into account the serious consequences that a scrupulous supplier should have taken into account as possible consequences, or an open indifference of any consequences coming from such act or omission.
8.1.4 The Buyer must indicate all his technical & quality requirement prior to placing his order , failing to do so may eliminate his right to claim damages from the seller.
8.2. Limit of the damages
8.2.1. Where the Seller must compensate for damages the Buyer, such damages shall not be higher that the damage the Seller could reasonably foreseen when entering into the agreement.
8.2.2. When claiming the non-execution of the agreement, the Buyer shall act as to reduce as much as possible the loss occurred. If the Buyer does not perform in such way, the Seller can ask for a reduction of the damages.
8.2.3. It is understood that the compensation for damages the Seller should pay to the Buyer cannot be higher than the price of the defected Product.
9. LIABILITY OF THE BUYER TRACEABILITY
9.1. Liability of the Buyer
9.1.1. The Buyer shall ascertain that the Products are in compliance with the Laws of their Country of destination and he will promptly inform the Seller, in any case before their selling, of any change to be done; in such case the Seller is free to refuse the Order or to charge a higher cost.
9.2.1. The Buyer shall provide the Seller with all the relevant documents and data to trace his final clients that will buy the Products or the Products’ final use.
9.2.2. It is understood that any liability that can derive from the Products for reasons arising after the transfer of the risk to the Buyer, included damages to people or goods, will be entirely upon the Buyer, that shall keep indemnified the Seller and that undertakes to adequately insure any risk, with no right of recourse to the Seller. The Buyer agrees to be called into question in case a third party, included Buyers’ final customers, proceeds against the Seller.
10. FORCE MAJEURE
10.1. Exemption from execution: causes
10.1.1.Both Parties can suspend the execution of their contractual duties when such execution becomes impossible or irrationally expensive because an unforeseeable event,independent from their will: e.g. in case of the occurrence of one or more of the following impediments:
[a] war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade, military embargo), hostilities,invasion, act of a foreign enemy, extensive military mobilisation;
[b] civil war, riot rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience;
[c] act of terrorism, sabotage or piracy;
[d] act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsoryacquisition, seizure of works, requisition, nationalisation, price controls or restrictions and relevant duties;
[e] act of God, plague, epidemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide,tidal wave, tsunami, flood, damage or destruction by lightning, drought;
[f] explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current;
[g] general labour disturbance such as but not limited to boycott, strike and lock-out go-slow, occupation of factories and premises; delays in the delivery of components and/or raw materials..
10.1.2.A party successfully invoking this Clause is relieved from its duty to perform its obligations under the contract from the time at which the impediment causes the failure toperform if notice thereof is given without delay or, if notice thereof is not given without delay, from the time at which notice thereof reaches the other party.
10.1.3.A party successfully invoking this Clause is, relieved from any liability in damages or any other contractual remedy for breach of contract.
10.1.4.Where the suspension caused by force majeure lasts more than six (6) weeks, each Party can terminate the agreement, sending a ten (10) days written notice ofwithdrawal to the other party.
10.2.1. If the agreement terminates pursuant to article 10.1.3., the costs of the agreement execution are allocated with an agreement between the Parties.
10.2.2. If the Parties do not agree, the expert appointed according to the procedure set forth under article 7.4.5. shall decide which Party was impeded to carry out its obligationsand shall determine the costs to be reimbursed accordingly. If the expert decides that both Parties could not perform their obligations, he proportionally shares the abovementionedcosts in a reasonable and equal way, taking into account the relevant circumstances.
10.2.3. To the effects of article 10.2., the word ‘’costs’’ means the effective reasonable expenses experienced by both Parties after doing what is possible to reduce their loss.
11. KNOW HOW – BRANDS
11.1. Know how
11.1.1. All the technical documents and know how, either patented or not (the’’ Confidential Information’’ ), communicated by the Seller under the agreement belong exclusively to the Seller and therefore cannot be copied, communicated to third parties or used by the Buyer and/or by thirdparties. The Buyer undertakes to keep as safe as possible theConfidential Information.
11.1.2. Confidential Information shall be used by the Buyer only to execute the present agreement and cannot be used for other reasons.
11.2.1. The execution of an Order does not give any right to the Buyer upon the trademarks of the Seller, his hallmarks, logos and on the name Alp Celik San. Ve Tic. A.S..
11.2.2. In case the Buyer breaches article 11.2.1. and the law concerning trademarks and copyright, the Seller has the right to act according to the law on intellectual property aswell as according to the law on unfair competition.
12. TERMINATION – WITHDRAWAL
12.1.1. The Seller can terminate the agreement entered into under these General Terms and Conditions and any order without prior notice, only sending to the Buyer aregistered letter or a fax or an email in the following cases:
(i) the Buyer does not pay the price agreed within fifteen (15) days from the formal sending of a notice to comply by the Seller;
(ii) the Buyer refuses or omits to accept the delivered of the Products offered in compliance with the General Terms and Conditions and with the relevant Order;
(iii) the Buyer does not buy the Guaranteed Minimum set forth in article 2.5;
(iv) the Buyer does not issue the payment guarantee pursuant to article 6.7.
12.1.2. In case of termination by the Seller of the agreement entered into according to these General Terms and Conditions and of the relevant Order pursuant to article 12.1.1.,save for the right to claim for damages, the Seller can ask the payment of all the amounts due by the Buyer, as such amounts shall become immediately due; the Seller can also dispose of the Products at its discretion; the Seller has no further obligation to supply Products to the Buyer; the Buyer shall pay all damages and relevant costs.
12.2. Withdrawal for just cause
12.2.1. The Seller can withdraw from the agreement entered into under these General Terms and Conditions and from any Order, via a simple written notice to the Buyer if:
(i) The Buyer either goes bankrupted or becomes insolvent or an administrator is appointed or anyhow he is under any insolvency procedure;
(ii) The Buyers enters into a winding-up procedure, either voluntary or not;
(iii) The Buyer either merges or is acquired or transfers his goods to a competitor of the Seller;
(iv) Revocation of financings by credit insurances.
(v) The buyer take one side action evident as criminal action or fraud according to Turkish law.
(vi) the seller may withdraw from all his duties in case the buyer holds payments without sellers concent.
12.3. Withdrawal of the Seller
12.3.1. The Seller can withdraw from the agreement entered into under these General Terms and Conditions for any reason whatsoever, sending a thirty (30) days prior writtennotice .
12.3.2. If the Seller withdraw, he has not to pay any fine, indemnity or compensation to the Buyer, provided that he still has to perform the pending Orders.
13. DEDICATED CAPITAL INVESTMENTS
13.1. Dedicated capital investments
13.1.1. If the execution of the supply causes the necessity to perform investments in order to have assets, machinery, plants, hire specialized employees or use areas (i)different from the assets, machinery, plants, employees or areas being used by the Seller for his business at the moment and (ii) specifically and mainly related to the executionof the supply asked by the Buyer to the Seller (jointly, the ‘’Dedicated Capital Investments’’ ), the Parties shall discipline with a separate agreement the terms and conditions(included, with no limitation, costs and ownership) concerning Dedicated Capital Investments.
13.1.2. If in such agreement it is convened that all, or some, of the elements of the Dedicated Capital Investments belong from the beginning, or at the end of theagreement to the Buyer, the rules set herein for the Phase Out shall apply.
14. APPLICABLE LAW – COMPETENT COURT – JURISDICTION
14.1. Applicable law
14.1.1. All the agreements and orders disciplined by these General Terms and Conditions are ruled by Turkish Law, including the UN Convention on International Sale of Goods(Wien 1980) in case the Buyer is not Turkish.
14.2. Jurisdiction - Competent court
14.2.1. All the disputes arising from this agreement or in relation to it shall be solved by means of arbitration by three arbitrators appointed and acting according to Istanbul Arbitration Chamber Regulation.
14.2.2. Regardless of what set above, the Seller reserves the exclusive right to bring any dispute before the Turkish Judge, Istanbul Court.
15. Validity of this agreement
15.1.The Buyers relationship with the Seller, set according to this agreement , unless otherwise agreed prior to order placement. This agreement adopted by the Seller and available at website www.coskungroup.com.tr and www.alpcelik.com. Orders placed by the buyer , without prior requirements will be considered as the buyers full acceptance and full acknowledgment of the content of this agreement.
15.2. The event of breach of this agreement by the buyer without coordinating his actions with the seller may be considered as Criminal fraud by the buyer.
The above, without prejudice for any further remedy available under applicable law, including but not limited to the compensation for the suffered damages (if any).