Terms & Conditions

1. Scope

All delivery and payment terms set out in this agreement shall apply, without the need for separate approval, to all offers, orders, deliveries and all other services to be rendered (hereinafter the “delivery”), including all future commercial relations. All conditions set out in this agreement shall be deemed accepted at the time the order is placed or, at the latest, at the time of delivery of the goods. Terms submitted by the customer which deviate from this agreement shall not be accepted. The only exception to this is our express written consent. A decision that any of the provisions of this agreement is invalid shall not affect the validity of the other provisions of the agreement.

2. Conclusion of the Contract, Relevant Documents, Intellectual and Industrial Property Rights

1. Our offers are non-binding. The contract shall only be concluded upon our written order acknowledgment. Our written order acknowledgment shall contain only the scope of delivery, the price and the date. If no written order confirmation is issued by us, the contract shall be concluded at the latest upon delivery of the order. Oral or telephone declarations made by our representatives shall only be legally binding if confirmed in writing.
2. The contract shall be binding on condition that it does not constitute a violation of national and international laws, or of chemical or environmental law, and that it is not subject to any embargo and/or other sanctions arising from foreign trade.
3. All our intellectual property and copyrights in designs, calculations, drawings and other documents are reserved. These may only be shared with third parties with our express written consent. The drawings and other documents submitted to the customer as part of the offer shall be returned to us upon first demand. If our offer does not result in an order, their return shall be mandatory. If we manufacture and deliver a product on the basis of drawings, models, samples or other documents submitted by the customer, the customer represents, declares and undertakes that the intellectual and industrial property right belongs to it, that it holds the legal conditions for use, and/or that no third party intellectual and industrial property rights are infringed. If a third party takes steps to prohibit production and delivery on the grounds of an alleged infringement of ownership rights, we reserve the right to suspend the relevant production and activities without waiting for the outcome of the legal proceedings and to claim compensation from the customer. In addition, the customer accepts and undertakes to compensate any loss that may arise in the event of any claim by third parties in relation to the documents submitted to us.
4. We reserve the right to invoice the costs of samples and test pieces and the costs of production materials required for their manufacture. Unless otherwise agreed, all costs of materials required for serial production shall be invoiced to the customer. Even if the production costs are fully or partially borne by the customer, the ownership of the production materials and tools shall belong to us.
5. For orders placed, we shall have the right to procure the materials for the entire order and to immediately manufacture the total order quantity. For this reason, unless otherwise agreed, we shall not take into account any change requests by the customer after acceptance of the order.
3. Description of Performance

1. The nature of the product subject to delivery must ultimately be clearly defined according to the agreed characteristics (for example: characteristics, labels, approvals, other information). A guarantee for a specific purpose or particular suitability may only be given if expressly agreed in writing; otherwise, the risk of suitability and use lies with the customer. No guarantee is given for any characteristics and other qualities of the delivery and service other than those expressly stated. We accept no responsibility for usual or technically unavoidable deviations resulting from physical and chemical quantities, including but not limited to those relating to colour, formulation, specification, process, raw material usage and order dimensions, which may reasonably be accepted by the customer.
2. The details of our products (for example, those stated in catalogues, product information, in electronic media or on labels) are based on our general knowledge and experience and merely indicate values and markers. These product details and expressly stated characteristics/purposes do not eliminate the customer’s need to test the product according to its intended use.
3. Unless explicitly stated in writing, the details concerning the quality of our products and their possible uses do not contain any guarantee.
4. Delivery and Delivery Period

1. Even if the delivery date has been agreed with the customer, it shall only be binding if expressly agreed in writing by the parties. The confirmed delivery date is subject to the correct, complete and timely supply of the products. The final delivery date shall be the date on which the products subject to delivery leave our factory or the date on which the customer is notified that the order is ready for dispatch. In the event that the customer fails to fulfil its obligations, such as providing technical information, documents, approvals, advance payments or securities, no final delivery date shall be deemed to exist.
2. We are entitled to make delivery in instalments.
3. In the event of force majeure or any other events beyond our control which prevent the fulfilment of confirmed orders, our delivery obligation shall be suspended until the effects of such events cease.
4. As a rule, returns of goods sold and free from defects are not possible.
5. In cases where the customer fails to fulfil its payments and other obligations, suspends its payments, falls into financial difficulty, is subject to enforcement proceedings, bankruptcy and liquidation proceedings have been initiated against it, or it has filed for its own bankruptcy, we reserve the right to immediately suspend deliveries and to terminate existing contracts if the customer does not provide the necessary securities.
5. Securities

1. Within the framework of our business relationship, title to all products subject to delivery shall remain with us until all our claims against the customer, including conditional and additional claims, are satisfied; all deliveries shall be deemed to be a single delivery transaction. Delivery with retention of title in this manner shall serve as security for our current account receivables. The above conditions shall also apply to our future receivables.
2. The customer shall only be authorised, within the ordinary course of its business, to resell, process or combine or mix the purchased product with other products; however, the customer hereby assigns to us, on the basis of the mutually agreed and final invoice amount including all taxes, all claims arising from resale, processing, mixing, combination or other reasons (in particular from guarantee agreements or torts) relating to the purchased product. The same shall apply even if the product is not sold but is subject to contracts based on work and materials or on work and services.
3. Our rights arising from retention of title shall apply in full to new products resulting from the processing, mixing or combination of the purchased product with other products. Since all such processes are carried out by us, we shall also have the status of manufacturer of the new products. If third-party ownership rights expire in the product resulting from processing, mixing or combination, we shall acquire joint ownership rights together with such third party in proportion to the actual values of these products. If our ownership rights expire as a result of mixing or combination, the customer shall immediately transfer to us its own ownership rights and/or the prospective rights in respect of the new stock or product delivered by us, at invoice value, and shall hold them on our behalf free of charge.
4. Unless cancelled by us, the customer shall be authorised to collect the assigned receivables arising from the resale, despite the assignment. As long as the customer makes payments on time, we shall not collect the receivables ourselves. Upon our first written request, the customer shall be obliged to notify us of the debtors of the assigned receivables and to inform the debtors of the assignment.
5. In the event of the customer’s delay in payment, significant deterioration in its financial situation resulting in liquidity problems, or failure to fulfil its contractual obligations, we shall have the right, with immediate effect, to terminate the customer’s right to resell and to collect the assigned receivables pursuant to Clause 5.2. In the event that the customer fails to fulfil its payments and other obligations, suspends its payments, falls into financial difficulty, is subject to enforcement proceedings, bankruptcy and liquidation proceedings have been initiated against it, has filed for its own bankruptcy or its shareholding structure has changed, the customer’s authority to resell and to collect the assigned receivables shall automatically terminate.
6. The customer shall store, on our behalf, the materials of which ownership belongs to us or which we jointly own, free of charge and with the duty of care of a prudent merchant, and shall insure such materials against fire, theft and other general risks.
7. It is prohibited for the customer to pledge or assign by way of security the products delivered with retention of title. The customer shall be obliged to immediately notify us and to confirm in writing both to us and to third parties the existence of our ownership rights, in the event of any annulment or infringement of our ownership rights by third parties. Any costs relating to any legal proceedings instituted for this purpose shall be borne by the customer, even if the proceedings are concluded in our favour.
8. In the event of the customer’s breach of contract, particularly in the event of delay in payment, we shall be entitled to take back the products; in such a case, the customer hereby acknowledges in advance our right to take back the products. Taking back the products shall only be deemed termination of the contract if we expressly state so. All costs arising from the taking back (in particular transport costs) shall be borne by the customer. The customer may only demand delivery of the products taken back if it pays the purchase price and all costs and if no express notice of termination has been served.
9. The amount of securities requested by us may not be less than the amount of our receivables.
6. Prices and Payment

1. Our prices are exclusive of all taxes, expressed in Euro and for ex-works deliveries.
2. In the event of unforeseeable changes in raw materials, wages, energy and other costs beyond our control, we reserve the right to adjust prices. In the case of deliveries in instalments, we may issue separate invoices for each delivery. Unless otherwise agreed in the contract, the prices applicable on the date of delivery shall apply.
3. The invoice amount shall be payable on the due date without any deduction.
4. We shall not be obliged to accept cheques, bills of exchange or other payment commitments offered by the customer in settlement of the invoice amount; their acceptance shall always be at our discretion.
5. The date of payment shall be the date on which the payment reaches us or is credited to our bank account. In the event of delay in payment by the customer, we reserve the right to claim interest for the period of delay at the monthly interest rate indicated on the invoice. The exercise of this right shall not preclude our right to claim additional damages.
6. Furthermore, in the event of delay in payment by the customer, we reserve the right to render the unpaid instalments of the purchase price due and payable or to make subsequent deliveries to the customer under this or any other contract only against advance payment or provision of security.
7. No interest shall accrue on payments made before the due date stated on the invoice.
8. The customer may only suspend its payments or set off its claims if its counterclaims have been expressly acknowledged by us or have become res judicata.
7. Claims for Defects

1. We shall only be liable for defects in the delivered products under the following conditions:
2. The customer shall be obliged to examine the products pursuant to Article 23/1(c) of the Turkish Commercial Code and Article 223 of the Turkish Code of Obligations. If the defect in the product is apparent at the time of delivery, the customer must notify us of the situation within two days. If it is not apparent, the customer shall be obliged to examine or have the product examined within eight days from the date on which it takes delivery of the product and, if the examination reveals that the product is defective, to notify us of the situation within this period in order to preserve its rights.
3. In cases where it cannot reasonably be expected from the customer to repair or remedy the defective delivered product, our alternative rights to separate the products prior to production (processing or loading), to repair the defect or to make an additional delivery shall arise. If we are unable or fail to do so, the customer shall have the right to terminate the contract in this respect and to return the products under our responsibility. In urgent cases and in consultation with us, the customer may remedy the defect itself or have it remedied by a third party. The costs arising from this shall be reimbursed by us pursuant to Clause 8.
4. If the defect becomes apparent only after the start of production and the customer has fulfilled its obligations under Clause 7.2, the customer may request subsequent performance (at our discretion, reworking or substitute delivery).
5. In the event of a substitute delivery, the customer shall be obliged to return the defective product upon request.
6. Claims for termination of the contract or reduction of the purchase price may only be made if the defect is not remedied within a reasonable period or if the repair or replacement of the product requires unreasonable expenditure. However, the customer shall not have the right to terminate the contract in the case of minor defects.
7. In respect of products that the customer does not accept, it shall, at our expense and upon our request, allow us to inspect the products without delay. If the reason for non-acceptance is not reasonable, we reserve the right to claim the cost of transport and inspection from the customer.
8. We shall not be liable for damage to products resulting from failure by the customer or a third party to properly comply with the operating, maintenance and installation instructions, from improper use or storage, from incorrect or negligent use or installation, from natural wear and tear, or from tampering.
9. Claims for damages and reimbursement of expenses may only be made in accordance with Clause 8.
10. Except for goods newly manufactured, the customer may not rely on the above rights in respect of products which are continuously delivered to it by mutual agreement.
8. Liability

1. We shall be liable for damages caused by wilful misconduct or gross negligence on the part of our company, our employees or our agents, particularly due to culpa in contrahendo, breach of obligations and torts.
2. We shall be liable for damage to life, body or health, in cases of guarantee or material breach of contractual obligations (obligations necessary for the performance of the contract and on the proper fulfilment of which the customer relies), and also for ordinary negligence. In the event of a breach of contractual obligations, our liability shall be limited to the typical direct average damage, varying according to the type of products. The above condition shall also apply to breaches of obligations by our employees and agents.
3. We shall only be liable in respect of the products sold, to the extent and to the extent that, under the legal regulations of the Republic of Turkey, third parties have intellectual and industrial property rights in force and effect on the date of delivery and the agreed use of the products infringes such rights. However, we shall not be liable if we manufacture on the basis of drawings, models, descriptions or other information or documents supplied by the customer and we do not know or are not required to know that there is any infringement of intellectual and industrial property rights in the products manufactured for this reason. In such a case, the customer represents and undertakes that the intellectual and industrial property rights of third parties have not been and will not be infringed, that it will promptly inform us of any existing, potential and foreseeable claims of third parties regarding the infringement of intellectual and industrial property rights, that it will hold us harmless from the claims of third parties and that it will compensate all damage and costs incurred.
4. No claims for defects may be made in respect of products after the expiry date indicated on the packaging of the products following delivery and/or in respect of products which have not been stored in accordance with the conditions of use and/or storage.
5. Claims for a reduction in price and for termination of the contract shall not be admissible if the claim for performance has become time-barred.

9. Compliance with Legal and Regulatory Provisions, Indemnification

1. Unless otherwise agreed in writing, the customer shall be obliged to comply with all applicable legal and regulatory provisions (including but not limited to the conditions relating to import, transport/shipment, storage, export, resale/distribution, application and use of the goods). The customer represents and undertakes that it complies with all applicable legislation, registration, information and/or notification obligations, including but not limited to obligations relating to import, transport/shipment, storage, export, resale/distribution, application and use of the goods, that it has full knowledge of and is aware of such obligations. The customer undertakes to comply with all applicable legal and regulatory provisions during our commercial relationship and to ensure that we do not suffer any loss as a result of any breach of this obligation or to indemnify us for any loss suffered.
2. Under all circumstances, the customer undertakes to refrain from the following transactions:
   • Transactions involving persons, organisations or institutions listed in EU regulations and US export control laws and regulations and in all other sanctions lists,
   • Unlawful transactions involving embargoed countries,
   • Transactions subject to authorisation for which authorisation has not been obtained (in particular export licences),
   • Transactions relating to nuclear, biological or chemical weapons or to the ultimate use of any other military equipment which is subject to authorisation but for which no authorisation has been obtained.
3. We shall provide information only on issues relating to foreign trade law, such as non-preferential origin as defined in foreign trade law and the customs tariff number on our commercial invoices. We shall not issue long-term supplier’s declarations indicating preferential origin. The import of the products shall be based on non-preferential origin. Such an origin declaration shall not entitle the holder to benefit from customs duty advantages.
10. Place of Performance and Jurisdiction, Other Provisions

1. The customer may assign and transfer its rights and receivables arising from this contractual relationship only with our prior written consent.
2. In all claims arising from the commercial relationship, in particular from our deliveries, the place of delivery shall be deemed the place of performance.
3. Turkish law shall apply to all disputes arising out of this agreement and the Istanbul Courts and Enforcement Offices shall have jurisdiction. This jurisdiction shall also apply to disputes relating to the formation and validity of the contract. However, we reserve the right to bring proceedings before the courts and enforcement offices at the customer’s place of residence. Furthermore, if the customer’s place of residence is outside the territory of Turkey, we shall also have the right to apply to the Istanbul Chamber of Commerce Arbitration Center. In this case, the arbitration shall be conducted in Turkish in Istanbul in accordance with Turkish law, and the arbitral award shall be final and binding.
4. Only Turkish law shall apply to our commercial relations with our customers. The CISG and other international conventions shall not apply.

Klüber Lubrication Yağlama Ürünleri Sanayi ve Ticaret A.Ş.
Çerkezköy Organize Sanayi Bölgesi, Karaağaç Mh. 10. Sk. No:7 Kapaklı/Tekirdağ
Telefon +90 282 758 1530, Faks +90 282 758 2935
www.klueber.com