POLAT MAKİNA GENERAL TERMS AND CONDITIONS (GTC)
Reference No: 2
1. PARTIES
These General Terms and Conditions ("GTC") apply to all Special Terms regarding the sale of Products to their customers (hereinafter referred to as the "CUSTOMER") by Polat Group Holding A.Ş. and all of its affiliates (hereinafter referred to as "POLAT" or the "Contractor").
2. SCOPE
The subject of this GTC is to regulate the terms and conditions for the supply and delivery of the product(s) (“Product”) to the CUSTOMER, the product name, quantity, technical specifications, delivery schedule, delivery place, and price of which will be specified in the Special Terms together with all annexes to be opened during the term of the GTC.
Accordingly, following the acceptance of the Special Terms, the Product shall be delivered by the Contractor within the scope of the Special Terms:
This GTC shall form an integral part of the Special Terms; however, in the event of any conflict between the Special Terms and the GTC, the provisions of the Special Terms shall prevail.
For matters not regulated in the Special Terms, the provisions of the GTC shall apply.
The Parties shall agree in writing on separate Special Terms for each job, and the Product shall be supplied according to the conditions determined in the respective Special Terms, with payment made over the price specified in the Special Terms.
2.1 PRIORITY
In the event of any conflict or inconsistency between this binding text, its annexes, and/or other documents referred to in this GTC, the following order of precedence shall apply:
Special Terms
This text (GTC)
Other documents referred to in this GTC (if any)
2.2 TERM OF GTC
This GTC is indefinite in duration.
2.3 LANGUAGE OF GTC
The binding language of this text between the Parties is Turkish. In the event of any discrepancy between the English version and the Turkish version, the Turkish version shall prevail.
All amendments and additional agreements to be made to this text shall be in Turkish.
Annexes to this text, all reports, technical information, manuals, and other written Documents required by the GTC shall be in Turkish as long as their original copies are in Turkish.
Exception: All documents issued by the manufacturer of the Product(s) ("MANUFACTURER") and all related annexes may be in English and/or Turkish, and are subject to the provisions contained therein. In this regard, the CUSTOMER declares that they are capable of fully understanding the documents whose original language is English, and this shall not be construed or evaluated under any circumstances as a commitment of a third party that places the MANUFACTURER under obligation through this GTC or in respect of the Contractor.
3. PRICE AND NOTICES
The price to be paid by the CUSTOMER to the Contractor in return for the performance of the obligations under this GTC shall be determined separately in each set of Special Terms.
3.1 COMMUNICATIONS AND NOTICES
Under the provisions of this GTC, notifications between the Parties shall be made by registered mail with return receipt requested or by hand delivery to the addresses specified in the relevant Special Terms or to other address(es) to be notified in writing.
The Parties may use email, telephone, and fax for communication purposes. The provisions of Article 18/3 of the Turkish Commercial Code and Law No. 7201 are reserved.
All communications between the Parties shall be deemed to have been made as of the day following the date of receipt by the counterparty.
Any change of address shall be notified to the other Party by the changing Party no later than 15 (fifteen) days from the date of change. Until the address change is notified to the other Party, notifications made to the old addresses of the Parties shall be deemed valid.
All communications and notifications between the Parties shall be in Turkish. However, annexes to communications and notifications whose original language is English in terms of terminology may be prepared in English.
4. PACKAGING, TRANSPORTATION, AND EXPORT LICENSES
4.1 The CUSTOMER acknowledges and declares in advance that all operations regarding packaging and transportation within the scope of this GTC shall be carried out in accordance with MANUFACTURER procedures, that the Contractor has no other packaging and transportation procedures to which it is subject under the GTC, and that if additional or special packaging is requested, it may be charged separately per product.
4.2 In cases evaluated by the Contractor to damage the integrity of the Product, adversely affect warranty conditions, or constitute a significant non-compliance with MANUFACTURER procedures; packaging/transportation requested by the CUSTOMER may be performed upon the Contractor's explicit written consent, regardless of how delivery terms are defined in the Special Terms. In this case, all risks, financial, administrative, and legal liabilities regarding packaging and transportation (including INCOTERMS 2010 rules) belong to the CUSTOMER.
4.3 Export Licenses:
4.3.1 The Contractor shall make applications, follow up, and submit documents to the CUSTOMER for all export licenses, governmental approvals, and permits required for the performance of this GTC. However, the Contractor's obligation to apply cannot be interpreted as a guarantee that the license will definitely be obtained.
4.3.2 Documents and information required for licenses shall be provided by the Parties in a timely and complete manner.
4.3.3 If the Export Licenses cannot be obtained within 3 months (or a period agreed upon in writing), the Contractor has the right to terminate the Special Terms; the Parties cannot claim compensation from each other due to this termination.
4.3.4 For Products that are not subject to an Export License at the time of order but are subsequently subjected to an Export License, the delivery schedule shall be re-evaluated.
4.3.5 If no agreement can be reached or if the CUSTOMER states that the license periods will not provide the expected benefit, the process regarding the relevant Products shall be evaluated within the scope of Force Majeure, and no financial/legal liability shall arise between the Parties.
5. GOODS/MATERIALS PROVIDED BY THE CUSTOMER
5.1 Equipment, goods, and materials provided, operated, maintained, and supervised at the expense of the CUSTOMER and placed at the disposal of the Contractor ("CUSTOMER Materials") remain the property of the CUSTOMER. Insured by the CUSTOMER, these materials shall be used exclusively for the CUSTOMER.
5.2 At the end of the Contract/use, CUSTOMER Materials shall be returned in the condition they were received, normal wear and tear excepted.
5.3 In the event that CUSTOMER Materials are unsafe, impede the Contractor's performance, are incomplete, or violate Trade Control Regulations, the Contractor may request remedy and suspend its obligations during this period without default interest/penalties.
5.4 All responsibility and risk regarding CUSTOMER Materials belong to the CUSTOMER. Except for gross negligence, the Contractor cannot be held responsible for damages, losses, and casualties that may arise. The CUSTOMER agrees and undertakes to hold the Contractor harmless against all lawsuits, claims, and expenses that may arise against the Contractor due to these materials.
6. PAYMENTS
6.1 Payments shall be made in Euros (€) based on the proforma invoice, and all banking charges belong to the CUSTOMER. The Contractor reserves the right to demand the Turkish Lira equivalent of the agreed price.
Late Interest: A late penalty of 0.2% per week in Euros (€) shall be applied to payment delays and invoiced to the CUSTOMER.
Order Cancellation: If the CUSTOMER waives or cancels the order, the Contractor may forfeit the advance payment, claim a penal clause of 10% of the Special Terms Price, and demand compensation for all damages.
6.1.1 Delays in delivery due to non-payment shall be directly reflected in the delivery period.
6.1.2 If the CUSTOMER defaults on payment for 30 calendar days or more, the Contractor may suspend all shipments and services. In case of default, all receivables become due and payable. The CUSTOMER cannot set off receivables without the written consent of the Contractor.
6.2 There is no current account relationship between the Parties. Unless otherwise agreed in writing, the CUSTOMER cannot unilaterally set off from progress payments, stop payments, or suspend payments.
7. CUSTOMS, TAXES, AND SIMILAR FINANCIAL OBLIGATIONS
7.1 Unless otherwise specified, actual import and customs clearance procedures shall be carried out by the CUSTOMER on its own behalf, and all responsibility belongs to the CUSTOMER.
7.2 Each Party shall pay taxes, duties, and fees related to its domestic activities. The Contract Stamp Duty shall be shared equally between the Parties without increasing the price in the Special Terms.
7.3 If one of the Parties is forced to make a payment due to a public financial obligation not paid by the other Party, the paying Party shall recourse this amount together with fines and interest.
7.4 The Contractor cannot be held responsible for wear, deterioration, and damage that may occur if the CUSTOMER refrains from receiving or delays in receiving the Products through its own fault.
8. LIABILITY
8.1 Limitation of Liability: The total contractual and legal liability of any Party, its affiliates, subcontractors, or employees for direct damages associated with the performance of the Special Terms is limited to 2% (two percent) of the relevant Special Terms Price.
8.2 The Contractor's obligations cannot be construed as a commitment of a third party's performance by the CUSTOMER.
8.3 If it is understood that the information provided by the CUSTOMER while establishing the contract is incorrect/incomplete, or subsequently changes in a way that adversely affects the commercial relationship, the Contractor reserves the right to terminate immediately without compensation.
9. ACCEPTANCE AND DELIVERY
9.1 Physical Inspection and Counting:
Within 2 (two) business days from the arrival of the Products at the Delivery Place, the Contractor shall inform the CUSTOMER.
Following the notification, the CUSTOMER is obliged to complete physical inspection and counting procedures within 5 (five) business days.
If the CUSTOMER does not complete the inspection within this period, the Products shall be deemed Accepted as of the first day following the end of the period.
During inspection, the Contractor shall keep expert personnel present. Unilateral determinations made without the Contractor's team are not binding. The Contractor is only responsible for manufacturing, workmanship, and design defects documented in a joint report.
In case of detection of missing/damaged Products, the situation shall be notified to the Contractor within 24 hours. Defective products shall be replaced with new ones free of charge or repaired by the Contractor.
9.2 If the CUSTOMER wishes to change the place of delivery, it must give written notice at least 2 (two) weeks in advance.
10. QUALITY MANAGEMENT
10.1 The Contractor shall carry out all its activities in accordance with the MANUFACTURER's quality management system and cannot be held responsible for any other quality management system.
11. CONFIDENTIALITY
11.1 The Parties shall comply with the terms and conditions of the "Information Exchange and Nondisclosure Agreement" executed between POLAT and the CUSTOMER regarding the exchange and use of information that may need to be disclosed to each other during the works to be carried out within the scope of this GTC.
11.2 In the event that this GTC is terminated for any reason, the responsibilities of the Parties under the Information Exchange and Nondisclosure Agreement shall continue.
11.3 Even if this GTC has expired or been terminated, the Parties shall not use the information acquired from the other Party as a result of the works carried out under this GTC for the purpose of competing directly or indirectly with said Party or providing any benefit to themselves in any manner.
12. TITLE AND RISK
12.1 The risk and title to the Products and the documents, files, and records to be delivered with the Products shall pass to the CUSTOMER upon transfer to the CUSTOMER, even if nominally. If customs procedures are required to be performed, the transfer of title and risk shall occur upon completion of the customs procedures. Upon the transfer of title, Product prices shall become demandable on their due date, if any, or immediately if none. For the avoidance of doubt, the transfer of title and risk of the Products shall under no circumstances or conditions be construed as a transfer of intellectual and industrial property rights regarding the Products or other matters that may be associated with the Products.
13. TRADE CONTROL REGULATIONS
13.1 The CUSTOMER shall comply with all applicable Trade Control Laws, including but not limited to the U.S. International Traffic in Arms Regulations (ITAR), U.S. Export Administration Regulations, U.S. Foreign Assets Control Regulations, the Council of Europe, and the United Nations Security Council (collectively, "Trade Control Laws"), as well as regulations regarding economic sanctions and monetary and financial transactions that may have an impact on the Products or parties under this GTC.
13.2 The CUSTOMER declares that neither itself, nor any of its affiliates, subsidiaries, or the persons controlling them or their shareholders, are included in any prohibition or restriction list, including the Specially Designated Nationals List ("SDN") administered by the U.S. Department of the Treasury Office of Foreign Assets Control ("OFAC"), the Denied Parties List, the Unverified List or Entity List maintained by the U.S. Department of Commerce Bureau of Industry and Security ("BIS"), the List of Statutorily Debarred Parties maintained by the U.S. Department of State Directorate of Defense Trade Controls, or the consolidated asset freeze target lists or Politically Exposed Person declarations designated by the United Nations, the European Union, and the United Kingdom (all lists collectively referred to as "Restricted Party Lists").
13.3 If the CUSTOMER or any parent company, affiliate, or subsidiary of the CUSTOMER is included in any Restricted Party List, or if the CUSTOMER's export privileges are denied, suspended, or revoked in whole or in part by any U.S. or UK authority, the CUSTOMER shall immediately notify the Contractor in writing.
13.4 In cases where a U.S. entity is a party or signatory under a Technical Assistance Agreement (TAA) or Manufacturing License Agreement (MLA), license exception, or license exemption (collectively, "Export Authorization"), the CUSTOMER shall immediately provide information (and supporting documentation upon request) to the Contractor in the event of: (1) changes in circumstances, including but not limited to disqualification, a violation or potential violation of ITAR or other applicable governmental restrictions, or the initiation or existence of an investigation by a U.S. authority affecting the CUSTOMER's performance under this GTC; or (2) any change made by the CUSTOMER that may cause a modification to the Contractor's existing export authorization or require requesting a new or replacement export authorization.
13.5 A determination by competent authorities of a violation of this Article 13 by the CUSTOMER shall be construed as a material breach of the GTC by the CUSTOMER. In such a case, the Contractor shall have the right, at its own discretion, to suspend or terminate the GTC or the relevant Special Terms, covering all primary and secondary performances, without any liability or responsibility of any kind under any contractual or general provisions. In the event that the Contractor is subjected to any fine or forced to make a payment due to the CUSTOMER's non-compliance or breach of its obligations under this article, the CUSTOMER shall immediately indemnify the Contractor for such damages upon the Contractor's first demand.
13.6 Re-export Prohibition to Russia
13.6.1 The CUSTOMER shall not directly or indirectly sell, export, or re-export to the Russian Federation or for use in the Russian Federation any products supplied under or in connection with this GTC that fall within the scope of Council Regulation (EU) No 833/2014.
13.6.2 The CUSTOMER undertakes to exert its best efforts to ensure that third parties downstream in the commercial chain, including potential sellers, do not act contrary to the purpose of paragraph 13.6.1.
13.6.3 The CUSTOMER shall establish and maintain adequate monitoring mechanisms to detect behaviors contrary to the purpose of paragraph 13.6.1 by third parties, including potential sellers downstream in the commercial chain.
13.6.4 Any violation of the provisions of paragraphs 13.6.1, 13.6.2, and 13.6.3 shall constitute a material breach of the essential provisions of this GTC, and in such event, POLAT shall have the right to apply appropriate remedies, including but not limited to: (i) Termination of this GTC; (ii) Payment of a penal clause by the CUSTOMER in the amount of 120% of the total value of the transactions realized under this GTC or the price of the exported products, whichever is higher.
13.6.5 The CUSTOMER shall immediately inform POLAT of any problems regarding the application of paragraphs 13.6.1, 13.6.2, and 13.6.3, including behaviors of third parties contrary to the purpose of paragraph 13.6.1. The CUSTOMER shall provide POLAT with information regarding its compliance obligation with paragraphs 13.6.1, 13.6.2, and 13.6.3 within two weeks upon request.
14. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
14.1 Each Party shall retain all of its existing intellectual and industrial property rights as of the date this GTC is established. The Contractor represents and warrants that the Contractor and/or the MANUFACTURER possess sufficient rights over all Products and other items used in connection with this GTC; and the CUSTOMER represents and warrants that it possesses all sufficient rights over all CUSTOMER Materials.
14.2 Unless otherwise agreed in writing, the Contractor and/or MANUFACTURER shall not provide the CUSTOMER with any software in the performance of the GTC, including but not limited to source code, compiled code, embedded software, firmware, free software, open-source software, freeware, software subject to general public license, or any electronic software in any form, including but not limited to free hardware designs or open-source hardware designs.
14.3 Unless otherwise agreed in writing, nothing in this GTC shall be construed as granting to the CUSTOMER a license to, or any right to use or exploit, the intellectual and industrial property of the Contractor or the MANUFACTURER. In the event that any goods, parts, or components supplied under this GTC infringe any intellectual or industrial property right (except where such infringement arises from compliance with the CUSTOMER's drawings), the Contractor shall defend, at its own expense, the CUSTOMER, its successors, and assignees in all lawsuits or proceedings brought against them, provided that the CUSTOMER notifies the Contractor in writing and assists the CUSTOMER as necessary and appropriately for the defense in such lawsuits or proceedings.
14.4 Within the scope of this article, in the event of any lawsuit or legal proceeding against the CUSTOMER due to an infringement of any intellectual and industrial property right, the CUSTOMER shall notify the Contractor of the situation within 5 (five) days from the receipt of the written notification regarding said lawsuit or proceeding by the CUSTOMER. The Contractor shall provide the CUSTOMER with all relevant information and documents, as well as its request to intervene in the lawsuit, if any, within 5 (five) days from the notification. The CUSTOMER shall take the necessary steps for the Contractor's intervention in the lawsuit in line with said request.
14.5 The CUSTOMER agrees that the Contractor and/or MANUFACTURER shall be the sole owners of all inventions, technology, designs, works of authorship, integrated circuit layouts, technical information, computer software, business information, know-how, and other information designed, developed, or otherwise produced during the performance of the GTC. The CUSTOMER undertakes not to infringe the intellectual property rights of the Contractor, the MANUFACTURER, or any third party during the use of the Products.
14.6 Under no circumstances or conditions shall the CUSTOMER perform any work aimed at reverse engineering the Product(s) by any method, including but not limited to: (a) X-ray, electronic imaging, or chemical stripping of parts of the Product; (b) disassembly, deciphering, and decompilation of source or executable codes; or (c) copying the Product or its components or parts.
14.7 Following the expiration of the term of this GTC or its termination for any reason, the provisions of this Article 14 shall continue to remain in force until otherwise agreed in writing, excluding any ongoing lawsuits in this regard.
14.8 The CUSTOMER accepts, declares, and undertakes not to interfere in any way with the Products, whether hardware-wise or software-wise, without the written permission of the Contractor under any circumstances; not to conduct Reverse Engineering studies; not to determine application platforms at its own discretion unless the Contractor provides written approval to the contrary; not to keep the Products in environments that could impair their functionality structurally or systemically; and not to make modifications for reverse engineering purposes to the technical specifications of the platforms where they will be applied, nor to perform any disposition that may cause damage.
15. PROTECTION OF PERSONAL DATA AND DATA PRIVACY
15.1 The CUSTOMER shall fulfill all obligations arising from laws and relevant legislation, including but not limited to the Law No. 6698 on the Protection of Personal Data, regarding the processing or transfer of any personal data transmitted to it by POLAT or obtained within the scope of performing its obligations under this GTC.
The CUSTOMER shall not share personal data with third parties outside the scope of the consent obtained from the data subjects. The CUSTOMER undertakes that its security systems for the protection of personal data comply with the legislation.
Throughout the term of this GTC, the CUSTOMER accepts and undertakes to ensure the security of all information it acquires within the scope of fulfilling its obligations under this Agreement, and to ensure that its relevant employees strictly comply with this obligation.
The CUSTOMER's measures for data protection shall include at least the following: (i) restricting access to data to authorized employees; (ii) securing commercial premises, data centers, paper files, servers, backup systems, and computing equipment, including but not limited to all mobile devices and other equipment with information storage capacity; (iii) ensuring network, device application, database, and platform security; (iv) securing information transfer, storage, and disposal; (v)implementing authentication and access controls within media, applications, operating systems, and equipment; (vi) encrypting highly sensitive data stored on any mobile media; (vii) encrypting highly sensitive data transmitted over public or wireless networks; (viii) strictly separating data from the information of the Service Provider or its other customers so that data is not combined with other types of information; (ix) applying appropriate personnel security and integrity procedures and practices, including but not limited to background checks consistent with relevant laws; and (x) providing appropriate confidentiality and information security training to Service Provider employees.
16. AMENDMENTS TO GTC
16.1 The Contractor may amend this GTC upon unilateral prior notice.
16.2 WAIVER
The failure of the Parties to exercise, in whole or in part, any of their rights under this GTC shall not be construed as a waiver of such rights in any manner.
17. ASSIGNMENT AND TRANSFER
Under this article (under heading 21.1), the Parties may not assign or transfer, in whole or in part, their responsibilities, rights, and obligations under this GTC to any third party without the prior written consent of the other party.
18. WARRANTY
18.1 All warranty services for the Products to be delivered by the Contractor under this GTC are limited to and subject to the conditions of the MANUFACTURER (including amendments made by the MANUFACTURER) within the borders of the Republic of Turkey, and do not constitute the subject of a separate and independent warranty.
18.2 When the CUSTOMER detects any defect, fault, or error within the warranty period, it is obliged to notify POLAT in writing within 48 hours.
18.3 Under no circumstances or conditions shall POLAT undertake any additional warranty commitment, and the parties accept and declare that the Manufacturer's warranty is the only valid and in-force warranty for all warranty practices.
18.4 If the Products need to be brought to Turkey to remedy warranty defects during the warranty period, the responsibility for bringing the Products to Turkey belongs to the CUSTOMER.
18.5 Following delivery of the Product, the CUSTOMER is responsible for storing the Product in accordance with the preservation and storage conditions specified in the user manual provided by the Contractor; otherwise, the CUSTOMER accepts, declares, and undertakes that warranty terms shall not apply, reserving the Contractor's rights to claim direct or indirect damages and compensation, including but not limited to damage, defect, or malfunction claims.
18.6 The mechanical warranty period for the Product is 24 (twenty-four) months, starting from the commissioning of said Products. Regardless of the commissioning date, the mechanical warranty period shall in any case be no later than 26 (twenty-six) months from the invoice date of the Product. Even if the commissioning period specified by the CUSTOMER is not complied with for any reason, the warranty period shall begin to run from the invoice date.
18.7 The warranty coverage for the Product includes only manufacturing defects, workmanship defects, and design defects.
18.8 If the Product is not commissioned within 6 (six) months or more from the date of dispatch, commissioning shall be carried out after performing necessary maintenance for an extra fee prior to the commissioning process. Even within the warranty period, the Contractor is not responsible for parts subject to wear and tear due to normal use of the Product or consumable expenses. CUSTOMER demands outside the scope of the project layout and contract signed under the Special Terms are excluded from the warranty.
18.9 The CUSTOMER accepts, declares, and undertakes that its warranty rights shall only be valid if periodic maintenance of the Product is performed during the warranty period for a fee exclusively by the Contractor and/or the Contractor's authorized technical service team, and provided that only original maintenance and spare parts provided by the Contractor for a fee are used in said maintenance; otherwise, the Contractor shall have no responsibility.
18.10 The Product shall be used in accordance with its purpose, as recommended by the Contractor, within its technical capacity, avoiding overloading and strain, and shall in no way be used outside standard technical operating times. Otherwise, warranty coverage for the Product shall be voided. In cases such as deterioration or breakage arising from operational errors where replacement or part change is required, the cost of parts and labor belongs to the CUSTOMER.
18.11 After the expiration of the warranty period, in the event of inspection, troubleshooting, part replacement, or renewal, part and labor fees according to current market rates shall belong to the CUSTOMER.
18.12 Regarding any product or spare part not manufactured by the Contractor, the Contractor can only provide the CUSTOMER with the warranties provided by the manufacturer of said product or spare part. Electric motors, all electrical materials, and all electronic designs shall be covered by warranty under the conditions and durations provided by the manufacturer of the relevant material and/or the relevant software supplier. The Contractor bears no responsibility arising therefrom.
18.13 Any repair or spare part provided shall be warranted against material (only for parts replaced under warranty) and workmanship defects for 12 months following said repair or spare part replacement pursuant to the warranty, and this period cannot be extended.
18.14 All liabilities of the Contractor, its officers, directors, employees, contractors, suppliers, or affiliates arising out of, due to, or in connection with the products, services, performance, or breaches under this GTC or Special Terms shall expire in the third year from the date the Special Terms are signed.
18.15 Faults, damages, and maintenance caused by the following circumstances are excluded from warranty coverage:
a. If the Products have not been operated and maintained in accordance with generally accepted industry practices and the Contractor's specific written instructions,
b. f machine installation or commissioning procedures were not performed by the Contractor or persons/entities authorized by the Contractor,
c. f the Products are used in connection with any mixture, substance, or operating condition outside their intended purpose,
d. If the CUSTOMER fails to fulfill its obligation to give notice of defect,
e. In case of operational errors, intentional, or unintentional damages caused by the CUSTOMER,
f. If the fault arises from interventions by personnel other than authorized service personnel on the Product subject to sale,
g. in case of damage and faults arising from transport, shipment, loading, and unloading operations under the CUSTOMER's responsibility,
h. ın case of faults arising from failure to install electrical, water, etc. utilities under the CUSTOMER's responsibility according to the installation and operating manual or from improper connections,
i. If warranty labels on the Products are torn or seals are broken and tampered with,
j. In case of damage and faults caused by Natural Disasters (fire, lightning, flood, earthquake, terrorism, etc.), unsuitable environments, and accidents,
k. In case of damage and faults resulting from low or high voltage, faulty or leaking electrical installations, use at voltages different from the voltage specified on the product label, or failure to supply required water quality and volume,
l. If periodic maintenance activities specified in technical operation manuals are not performed by authorized persons/entities within the timeframes specified in manuals and/or are performed by 3rd parties,
m. Uses above the capacities notified to the CUSTOMER or uses contrary to the user manual and technical instructions,
n. Wear, tear, and damage caused by failure to provide electrical power of required capacity and water of sufficient and appropriate quality as specified in the technical data of the Product,
o. Faults resulting from failure to perform major and minor maintenance at periods specified in user manuals, or faults and damages resulting from non-compliance with lubrication schedules,
p. Modifications or alteration practices applied to the PRODUCT without the knowledge, supervision, and oversight of the Contractor,
q. Depletion, wear, and tear occurring in materials that naturally wear out over time (bearings, etc.) as well as electrical and consumable materials (oil, etc.).
18.20 As a rule, second-hand Products are not covered by warranty. However, if major maintenance service has been provided by the Contractor, a 1 (one) year warranty period may be determined subject to the terms of this article (to the extent applicable).
19. FORCE MAJEURE AND SUSPENSION OF WORK
19.1 The Parties shall not be deemed to be in breach of their obligations if they are unable to perform their obligations due to a Force Majeure event. The Contractor shall not be liable for any delay, non-performance, or other deviations in the performance of its obligations under the relevant Special Terms resulting directly or indirectly from any cause or causes beyond the reasonable control of the Contractor and/or the MANUFACTURER or their affiliates, including but not limited to natural disasters, fires, floods, earthquakes, or severe weather conditions; accidents; criminal acts, war, acts of terrorism, or the existence of a threat thereof; riots, official or unofficial actions, instructions, regulations, or restrictions of any foreign or domestic governmental agency or representative; trade sanctions or embargoes; actions of the CUSTOMER, its employees, agents, or representatives; strikes, lockouts, work stoppage decisions, or labor-related difficulties involving the employees of the Contractor or any third party; public service interruptions; delays in transportation facilities. When performance is delayed due to such a cause, the Contractor shall be entitled to a reasonable extension of time for performance.
19.2 When a reasonable doubt arises regarding Export Laws, the Contractor shall have the right to suspend its performance under the relevant Special Terms, in whole or in part, for a period not exceeding thirty (30) calendar days by giving written notice to the CUSTOMER. Following receipt of the written notice, the CUSTOMER shall immediately comply with the terms of the notice and take all reasonable measures to mitigate costs allocated to the suspended portion of the work. For the avoidance of doubt, suspension of work by the Contractor shall under no circumstances give the CUSTOMER the right to hold the Contractor liable for any loss or damage incurred by the CUSTOMER.
19.3 Although the Covid-19 pandemic ongoing as of the binding date of this GTC does not constitute an obstacle to the establishment of the GTC, if it causes any party to fail to fulfill its obligations during the execution of the GTC, it shall be evaluated as a force majeure event under this Article 19 (erroneously referred to as Article 23 in original text).
19.4 In the event of a delay in fulfilling its obligations due to force majeure and reasons that the Parties may accept as force majeure by mutual written agreement, the Contractor may request an extension of the delivery period and/or a adjustment in price.
20. TERMINATION OF THE GTC
20.1 Each of the Parties shall exert its best efforts to perform its obligations under this GTC and the relevant Special Terms to the maximum extent. The Parties do not possess discretionary termination rights under any circumstances or conditions under this GTC, their primary objective and purpose being the performance of the GTC. In this regard, no circumstance other than the following shall be evaluated as a ground for termination:
i. If one of the Parties refrains from fulfilling its obligations under this GTC, outside cases of force majeure and impossibility of performance, despite having gone through all processes regulated in the relevant articles to prevent termination, unless otherwise provided in other relevant articles, and fails to remedy this situation within 60 (sixty) days following written notice by the other party, or within a separately agreed period set by the Parties, if any;
ii. If one of the Parties becomes bankrupt or a decision for its liquidation is rendered;
iii. If a trustee or another officer with equivalent powers is appointed for the assets of one of the Parties;
iv. If there are changes in the legal status under any direct or indirect structure of one of the Parties that could produce results within the scope of Trade Control Regulations under Article 13 (erroneously referred to as Article 17 in original text) of this GTC;
v. (labelled as iiv in original text) The Contractor reserves the right to terminate unilaterally without indemnity, provided that it gives at least 1 (one) month's prior written notice of termination to the CUSTOMER without stating any reason. In the event of termination by the Contractor without any just cause, the Contractor shall refund the amounts collected from the CUSTOMER.
21. OCCUPATIONAL HEALTH AND SAFETY
21.1 The Parties accept and declare that they shall fully fulfill the requirements regarding occupational health and safety specified in the relevant provisions of the Labour Law No. 4857 and the Occupational Health and Safety Law No. 6331, as well as all other curriculum provisions related to these laws ("OHS Legislation"), and shall fully apply them to their employees; and that they shall be held liable as specified in the relevant legislation in the event of statements to the contrary and actions in breach of the OHS Legislation.
21.2 The CUSTOMER accepts, declares, and undertakes that, within the scope of the Contractor's personnel working at the CUSTOMER's premises, it shall protect the Contractor's personnel within the framework of the OHS Legislation and relevant rules, take all necessary precautions, and be liable for any damage suffered by the Contractor and/or the Contractor's personnel due to the CUSTOMER's non-compliance with the obligations specified herein and/or its negligence.
21.3 The CUSTOMER accepts, declares, and undertakes irrevocably that the Contractor and the Contractor's personnel shall not be held liable for any fault, technical malfunction, problem, and/or any direct or indirect damage that may occur after the work carried out by the Contractor's personnel at the address belonging to or to be indicated by the CUSTOMER (including but not limited to the Delivery Location) and following any transaction to be performed within this scope; and that it shall hold the Contractor and the Contractor's personnel harmless from any claims and demands regarding the specified matters.
22. GOVERNING LAW OF THE GTC
22.1 The governing law of the GTC is the substantive and procedural law of the Republic of Turkey.
23. RESOLUTION OF DISPUTES
23.1 In the event of a dispute between the Parties, the Parties shall convene within 30 (thirty) days following written notification of the subject matter of the dispute by one Party to the other Party and attempt to reach an agreement on the resolution of the dispute. If the Parties do not convene within this period and/or fail to reach an agreement despite convening, the Courts and Execution Offices of Aydın shall have jurisdiction over the resolution of the dispute.
23.2 OTHER PROVISIONS
Compliance with Legislation: The Parties declare, accept, and undertake that they are aware of and comply with—and shall continue to comply with, to the extent that it does not constitute a violation of the laws of the Republic of Turkey—all applicable and relevant laws, rules, regulations, guidelines, statutes, instructions, or legislation (collectively, "Laws"), including but not limited to the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and applicable anti-bribery laws of other countries, public procurement laws and regulations, U.S. Export Administration Regulations, International Traffic in Arms Regulations, and sanction regulations administered by the U.S. Treasury Department Office of Foreign Assets Control; and that the failure to comply with these obligations shall be deemed a breach of this GTC.
Independent Contractor: The Contractor shall at all times be considered an independent contractor while performing under this GTC and shall not be deemed an employee or agent of the CUSTOMER. Under this GTC, operators, employees, agents, subcontractors, or servants of the CUSTOMER may from time to time receive directives from the Contractor or be temporarily controlled by the Contractor, but this situation shall not lead to the CUSTOMER's employees, agents, subcontractors, or servants being evaluated as employees of the Contractor. Furthermore, no obligation of the Contractor under this GTC shall be construed as a guarantee for the acts of any third party, and is separate, independent, and exclusive from the CUSTOMER's legal relationships with third parties.
Surviving Obligations: The termination or total/partial suspension of this GTC or any Special Terms for any reason shall not be construed or deemed as a waiver by any Party of its rights and legal remedies accrued based on the Contract or before the law up to the date of said termination (including said termination date), and shall not affect or prejudice any provision of the GTC that is intended to remain in force after said termination or suspension date.
Severability: If any term, provision, covenant, or condition of this GTC and the relevant Special Terms is deemed invalid or unenforceable for any reason, the remaining portions of the GTC and relevant Special Terms shall remain in full force and effect, provided that it does not prejudice the general intent of the Parties. In such event, the Parties agree to substitute, to the extent lawful and possible, a replacement provision that produces the effect originally intended in the GTC.
Authority to Execute GTC: The Parties declare and undertake that they are duly authorized to enter into this contractual relationship and to deposit, and that they possess legal capacity.
Intended Use, Conditions, and Restrictions: The CUSTOMER shall comply with the conditions in this GTC regarding the Products and with their intended use. Unless explicitly permitted in writing by the Contractor, the CUSTOMER shall not resell, lease, or use the Products as collateral for obligations incurred to third parties, nor transfer ownership thereof to third parties.
Trademarks, Trade Dress, and Representation: The CUSTOMER shall not use or permit the commercial use of any trademark, name, trade name, service mark, trade dress, or any intellectual and industrial property right of the Contractor and/or MANUFACTURER without entering into a trademark license agreement with the Contractor or MANUFACTURER.
Exclusivity: This GTC is a framework agreement for the Products specified under Article 2.2 and Annex-1.
23.3 Product Modifications
Except for Products subject to Special Terms that have acquired final GTC status with the Contractor's approval, the Contractor may make modification(s) to the Products at any time, provided that notification is given in subsequent offers (redesigns, materials, enhancements, and modifications of every kind are within the scope of modifications permitted under this article). Except for Products subject to Special Terms that have acquired final GTC status with the Contractor's approval, the Contractor may, entirely at its own discretion and without incurring any liability as a result, discontinue the manufacture or supply of Products.
23.4 Priority of Communication
Throughout the term of this GTC, the CUSTOMER accepts and undertakes not to contact the MANUFACTURER directly or make demands to the MANUFACTURER regarding any commercial consequence associated with the price of Products under Special Terms and the Contractor's obligations hereunder without the Contractor's consent, and to communicate primarily with the Contractor in this regard.
23.5 ENTRY INTO FORCE
This GTC is prepared in 2 (two) original copies and shall enter into force on the date each Special Terms is accepted by the Parties.
ANNEXES
Annex-1: Special Terms Quotation Format
