Art. 1 - Object and application of these conditions
These General Conditions shall apply to all present and future sales contracts/orders between DRILLMEC S.p.A. (the Seller) and the Purchaser hereafter described as the “Parties”. Any exceptions must be specifically agreed upon in writing. Any general conditions of the Purchaser will not apply to the contractual relations between the Parties.
Art. 2 - Contractual regulations
Save as otherwise mutually agreed in the order/contract, Italian law governs all contracts regulated by these general conditions. Reference to any commercial terms (carriage paid, FOB, CIF, etc) is to be understood according to the Incoterms® 2010 or the most recent version of the International Chamber of Commerce.
Art. 3 - Formation of the contract
The acceptance on the part of the Purchaser of the Seller's offer or of the Seller's order confirmation, however it may be done, entails the application of these General Conditions to the contract of sale, even when the acceptance occurs through the execution of the order/contract and save as otherwise mutually agreed in the order/contract.
The Seller's offer is firm and irrevocable only when it is described as such by the latter in writing. Offers made by agents, representatives or commercial auxiliaries of the Seller are not binding until the Seller himself confirms them.
Art. 4 - Plans and technical documents
4.1 - Information - The weights, dimensions, capacity, prices, performance, colours and other data featured in the catalogues, prospectuses, circulars, advertisements, illustrations and price list, or other illustrative documents of the Seller are only of an approximate character. These data are not binding unless they have been expressly mentioned in the offer or in the Seller's order confirmation.
4.2 - Modifications to the products (equipment and accessories manufactured by DRILLMEC S.p.A.) - The Seller reserves the right to carry out, at any time, on his own products such non substantial modifications as it deems suitable, notifying the Purchaser if they affect the supply already underway to him.
Where the Purchaser proposes technical modifications to what was contained in the Seller’s offer, in order for them to be binding, there must exist a full written agreement between the Parties on the alterations these modifications will occasion to the previously established prices and delivery periods.
4.3 - Documents, technical information - Any design or technical document that permits the manufacture or assembly of the whole part of the products sold that has been sent to the Purchaser, before as well as after the drawing up of the contract, remains the exclusive property of the Seller. The said designs or documents may not be used by the Purchaser, or copied, reproduced, transmitted or communicated to a third party without the Seller’s permission.
Art. 5 – Guarantee
5.1 - Product compliance - The Seller represents and warrants that the products shall be in compliance with its technical specification and shall be free from defect in design, workmanship and materials and that they shall give proper performance under the operating conditions foreseen in the Seller’s technical specifications for a period of twelve (12) months from the date of start-up or fifteen (15) months from the date of delivery, whichever occurs first. Notwithstanding anything to the contrary stated in the order/contract, the Purchaser acknowledges that the products are of a size, design and type as described in details in the Seller’s technical specifications and agrees that, except as stated herein, there are no other warranties, express or implied, including those or merchantability or fitness for particular use, which Seller hereby disclaims.
5.2 - Supplies of products made to Purchaser's specifications – Notwithstanding anything to the contrary, in the case of supplying to Purchaser's design, the Seller guarantees exclusively the compliance of the products with the specifications that have been indicated to it or, in the absence of precise indications, to the API quality allowances, with the exclusion of any guarantee with regard to the specific use to which the Purchaser intends to put the products.
5.3 - Assembly of tools on Purchaser's machinery - Notwithstanding anything to the contrary stated in the order/contract:
a) when the products are assembled on machinery belonging to the Purchaser or third parties, the Seller solely guarantees that the products supplied are compatible with the machine model indicated by the Purchaser (type, size, power rating etc...) as far as technical specifications and productivity requested are concerned;
b) should the products be assembled by Purchaser's technicians, the Seller will not be liable for any changes to the products characteristics, with reference to their safety;
c) should the products be assembled by the Seller, the machines are always assumed to be new unless otherwise stated by the Purchaser. Should the products be assembled on used machines, they are assumed to be in perfect working order, as checking the state and condition of this machinery (wear, maintenance, etc.) does not lie within the competence of the Seller. Should the Purchaser provide incorrect information about the machine model and should such model be unsuitable, or should the Purchaser withhold information about the poor condition of the machinery, and should the disrepair be obvious without any detailed examination of the machine and obviously dangerous, the Seller's technicians will not proceed with the assembly of the products. Should this occur, the Purchaser will still be under obligation to pay the Seller the amount agreed in the contract;
d) the Seller will not be liable in any case for damages to people or property directly or indirectly caused by the assembly of products on Purchaser’s machinery.
5.4 - Guarantee extension - The warranty shall not cover the effects of normal wear and tear (i.e. warranty does not cover seals, gaskets, liners, filters or any other consumable item) and those occurring due to disregard by the Purchaser of the Seller operating and maintenance instructions, overloading of the products or operating conditions different from those contemplated in the technical specifications.
Warranty does not cover any defect caused by an accident, misuse, abuse, improper installation or operation, lack of reasonable care, unauthorized modifications, loss of parts, use of not previously authorized non-original Seller’s parts, tampering or attempted repair by a person not authorized by the Seller.
Any eventual delay of payment gives the Seller the right to exclude the warranty for the whole period that the delay may persist.
As to any product or part of it manufactured by third parties (whether sold separately hereunder or incorporated into another product sold hereunder), the Seller agrees only to present the Purchaser’s claim with respect to defects to the manufacturer for its remedy, and the Purchaser agrees that the liability of the Seller shall not exceed any remedy with respect to which such manufacturer accepts responsibility. The warranty shall comply with terms and conditions of the relevant manufacturer (copy of said warranty available upon request).
5.5 - Claims - In any event of defects detected by the Purchaser, the latter shall issue an official written claim to be addressed to the Seller After Sales Department within 5 calendar days of the detection of the defect. The claim shall contain all the necessary data (products serial number, report of the damage, possible causes, complete description of the items involved, pictures etc.); incomplete or not comprehensible claims will not be taken into account and the Purchaser shall lose its rights under the guarantee.
5.6 - Remedies - With reference to claims, the Seller reserves the right to inspect the products at its premises or on Purchaser’s site (at its option) in order to determine the validity of the warranty claim, and if determined to be valid, the Seller, will, at its option:
- replace the defective product or parts thereof, or
- authorize the product or part to be returned to its authorized repair facility for repair, or
- authorize the product or part to be repaired at Purchaser’s plant at previously agreed costs.
In case a material shipment to the Seller (or any other repair facility authorized by the Seller) is required, the Purchaser is responsible for the cost of transportation to and from the Seller; whilst in transit the product/part is at Purchaser’s risk.
The Purchaser shall ensure that product/part is properly packaged so as to ensure that no other damage occurs during transit.
In the event that no identical product/part is available for service repair, the Seller has the right to replace it with a device of equal capacity, or offer the Purchaser the choice of a product/part upgrade which may incur an extra cost.
Repair or replacement (material/workmanship for repair) will be without charge, but any other expenses (i.e. removal and installation of other parts, including additional parts furnished), will be made at Purchaser's charge. No charges will be accepted for returns, repairs or modifications done by the Purchaser unless previously authorized in writing by Seller.
Should the Seller provide the Purchaser with replacement parts for product alleged to be faulty prior to the examination of said parts by the Seller, said action must not, in any case, be considered as acknowledgement of fault. In such a case the Seller shall invoice the Purchaser the related costs of parts and, after examination and making sure of its fault, the Seller shall credit to the Purchaser these costs.
Art. 6 – Limit of Seller's overall liability – Notwithstanding anything to the contrary stated in the order/contract, this warranty supersedes all legal warranty for defects and compliance, provided that it shall not exceed in the aggregate an amount up to 10% of the order/contract price. Except for wilful misconduct (“dolo”), in no event shall the Seller be liable to the Purchaser for any direct, indirect, consequential, incidental, punitive or other damages, including without limitation any claim for facility downtime, damages based on loss of use, loss of time, inconvenience, loss of revenues or profit, business interruption or other commercial loss, however caused by the Seller’s products and/or services and arising from any breach of contract.
Art. 7 – Indemnification – Notwithstanding anything to the contrary stated in the order/contract:
a) Seller agrees to protect, defend, indemnify and hold harmless Purchaser, its other contractors and subcontractors, and their respective officers, directors, employees or their invitees, any customer for whom Purchaser is performing services and any third party from and against all claims, demands, and causes of action of every kind and character without limit and without regard to the cause or causes thereof or the negligence or fault (active or passive) of any party or parties including the joint or concurrent negligence of Purchaser, any theory of strict liability and defect of premises, arising in connection herewith in favor of Seller’s employees, Seller’s subcontractors or their employees, or Seller’s invitees or any third party on account of bodily injury, death or damage to property;
b) Purchaser agrees to protect, defend, indemnify and hold harmless Seller, its subcontractors, and their respective officers, directors, employees or their invitees and any third party from and against all claims, demands, and causes of action of every kind and character without limit and without regard to the cause or causes thereof or the negligence of fault (active or passive) of any party or parties including the joint or concurrent negligence of Seller, any theory of strict liability and defect of premises, arising in connections herewith in favor of Purchaser’s employees, Purchaser’s other contractors or subcontractors or their respective employees, or Purchaser’s invitees or any third party on account of bodily injury, death or damage to property;
c) Seller shall assume all responsibility for and shall protect, indemnify and save harmless Purchaser from and against all loss, cost, charges and expenses (including all reasonable legal costs and expenses) resulting from claims, demands and causes of action of every kind and character relating to pollution or contamination which originate above the surface of the earth from negligence, improper care or disposition by the Seller.
Purchaser shall assume all responsibility for and shall protect, indemnify and save harmless the Seller from and against all loss, costs, charges and expenses (including all reasonable legal costs and expenses) resulting from claims, demands, and causes of action of every kind and character relating to pollution or contamination which originates below the surface of the earth. Including but not limited to pollution resulting from fire, blowout, cratering, seepage or any other uncontrolled flow of oil, gas or other substance.
Art. 8 – Testing
8.1 - Testing at Seller's factory - Testing will take place at the Seller's factory, unless the Parties choose another location. The day for testing will be communicated by the Seller to the Purchaser giving sufficient notice in order to allow the Purchaser's personnel to attend the testing at his own expense. Testing is to be considered as positive: a) if the Purchaser attends the testing, on condition that no specific written objection of the possible faults is made during or immediately after the testing has been carried out or b) if the Purchaser states that it does not want to attend the testing, or anyway it does not attend it, and no fault results in the test report drawn up by the Seller. If testing has a negative outcome, it shall be repeated and it will be carried out under the same conditions.
8.2 - Testing at Purchaser's factory - Testing can be carried out at the Purchaser's factory if it has been agreed in writing between the Parties. Testing is to be considered as positive on condition that the Purchaser makes no specific written objection to the possible faults during or immediately after completion of testing.
The date agreed upon for testing will be notified by the Purchaser to the Seller giving sufficient notice to allow the Seller's personnel to attend. In any case the Purchaser will have to make all arrangements at the proper time in order to carry out the testing at the date agreed upon: otherwise at the date agreed upon for testing, the test is to be considered as having had a positive result. All expenses incurred in the testing process at the Purchaser's factory will be at his own charge, except those necessary for the Seller's technicians to take part in the testing.
8.3 - Results of the testing - The Purchaser loses all rights, guarantees, right to action and exceptions regarding those faults which could have been diligently found out through testing.
Art. 9 - Delivery
9.1- Hand-over of the products - Save as otherwise mutually agreed in the order/contract, the supply of the products is intended Ex Works Seller’s factory: this also when it is decided that the delivery or part of it will be taken care by the Seller, in which case the latter will act as the Purchaser's agent, it being understood that the transport will be carried out at the expense and risk of the Purchaser.
9.2 - Transfer of risks - The risks relative to the supply pass to the Purchaser, at the latest, at the time in which the products leave the Seller’s plant. If the Purchaser does not take delivery of the products on the agreed delivery date for reasons other than the fault or fraud of the Seller, the risks pass to the Purchaser in any case not later than the date of the originally agreed delivery.
In no case is the Purchaser released from the obligation of paying the price when the loss or damage of the products occurs after the passing of risks.
9.3 - Delay in the delivery of the products and/or performance of the services– Notwithstanding anything to the contrary stated in the order/contract, should the Seller be in delay in the performance of its obligations, and such delay is exclusively attributable to the Seller’s fault, then the damage that will be suffered by the Purchaser, representing a genuine pre-estimate of such loss and damage, shall be the amount of the agreed delay liquidated damages calculated on the value of the delayed materials and/or services for every full week of delay in delivery. Calculation of delay liquidated damages shall commence after a grace period of thirty (30) days in respect of the scheduled delivery times, to allow the Seller to commence any possible remedial action to recover the delay. Delay liquidated damages shall be Purchaser’s sole remedy for delay, as they are not a penalty, and exclude the right of Purchaser to claim further damages or loss.
9.4 - Purchaser's obligation to take delivery of the products - The Purchaser is always held to take delivery of the products, even in the case of partial deliveries and even when the products are delivered after the established delivery date.
If the Purchaser does not take delivery of the products for reasons not attributable to the Seller or force majeure, the Purchaser must support all the expenses that may derive therefrom.
The Seller may furthermore:
a) put in stock the products at the risk, hazard and expense of the Purchaser;
b) send the products, to the Purchaser's site in the name, on the behalf and at the expense of the Purchaser;
c) sell the products by any means, on the Purchaser's behalf, retaining from the proceeds the whole sum due, as well as the expenses sustained.
Eventual further damages not excluded.
Art. 10 - Force majeure - The agreed delivery time limit for products and/or services will be extended by a period at least equal to that of the duration of the impediment due to causes beyond the Seller’s control and not foreseeable, such as war, whether declared or not, hostilities, riots, disorders that may occur in the country where the work must be carried out, acts of the public enemy, strikes of any kind, fires, floods, power shortages, shortage or scarcity of raw materials, break-downs or accidents at the Seller's production plants, national or international import and export restrictions and other impediments independent of the will of the parties that temporarily render the delivery impossible, dangerous or excessively onerous.
The Seller will have the right, at its option, to terminate the order/contract, with a prior written notice to Purchaser if the impediment persists for at least ninety (90) days or to agree with the Purchaser a mutually satisfactory course of action.
Notwithstanding anything to the contrary stated in the order/contract, the Seller shall be paid for the work done and/or committed up to the notified termination date.
Art. 11 - Services
11.1 - Purpose - These General Conditions shall apply, mutatis mutandis, also to the assembling and/or assistance and/or maintenance and/or training activities that Seller shall be available to provide to the Purchaser at the site of the latter (hereinafter referred to as “Services”) according to specific contracts to be signed by the Parties. The Services shall be supplied by the Seller by dispatching its technical personnel, including external collaborator; the Seller shall at any time be entitled to replace its technicians with other specialists having the same skills, no liability shall be attributed to the Seller for the delay caused by said replacement.
11.2 - Safety - The Purchaser shall pay attention to safety during the performance of the Services in order to avoid any injury to the Seller’s technicians. The Purchaser shall have a documented and implemented health, safety, environment and security management system for the Services to be performed at its site according to applicable laws and regulations. Said health, safety, environment and security system shall have a level of standard that is no less stringent than and in strict compliance with Italian’s health, safety, environment and security policy.
The Purchaser shall inform the Seller’s technicians about the health, safety, environment and security laws, regulations and standards the technicians have to comply with, verifying their abidance and immediately bringing in writing to the Seller’s attention any technicians’ failure.
The Purchaser shall indemnify and hold harmless the Seller from any and all claims or demands arising from injury or death to its technicians resulting from work performed at the Purchaser’s site during the performance of the Services.
11.3 - Purchaser’s obligations - During the fulfillment of the Services the Purchaser shall grant to the Seller’s technicians the availability of any tools and consumers required by the Seller for the carrying out of the Services, the free entrance to the areas assigned to the Services and all what is necessary for this access (i.e. pass, etc.), the free entrance to the washroom and to the recreational area and the co-operation of its foremen. The Purchaser shall also forward to the Seller all the information and documentation useful for carrying out the Services and shall promptly reply to any Seller’s request of information.
Art. 12 - Payment
12.1 - Payments - The payments, and every other sum due to the Seller, are understood as due at the registered office of the Seller and will be made in conformity with the previous agreements. Eventual payments made to agents, representatives or commercial auxiliaries of the Seller, which shall be authorized in writing by the Seller, are not regarded as made until the relative sums reach the Seller.
12.2 - Delays in payments - Save as otherwise mutually agreed in the order/contract, all amounts invoiced are immediately due and payable, and payment of an invoice must be received by the Seller not later than thirty (30) days after the date of the invoice. Amounts invoiced but unpaid shall bear interest at the rate of 10% per annum interest after thirty (30) days from the date of invoice until finally paid. Provided that, in any case, any delay or irregularity in the payment gives the Seller the right to suspend the supply or to cancel the orders/contracts in course, even if they are not relevant to the payments in question, as well as the right to compensation for eventual further damages. The delay of payments likewise gives the Seller the right to exclusion from guarantee for the whole period that the delay may persist.
The Purchaser is obliged to make an outright payment even in case it has placed any warranty claim.
Art. 13 - Retention of title
In the case of payment being made - in whole or in part - after the delivery, the delivered products remain the Seller's property until the moment of the complete payment of the price according to the measure allowed by the law of the country where the products are to be found.
The Purchaser will undertake to do whatever necessary to constitute in the above mentioned country a valid property reservation in the most extensive form permitted. He will likewise undertake to collaborate with the Seller in the preparation of the necessary measures for the protection of the Seller's property rights. The Purchaser may not resell, give away or give in guarantee the purchased products without having completely paid the Seller the full price; the Seller must be immediately informed of any executive proceedings which might have affected the products.
Art. 14 - Hardship
If, for any unforeseeable reason, the execution of the Seller's obligations become, prior to their execution, more onerous than could reasonably have been anticipated at the time of the conclusion of the order/contract with regard to the counter performance originally agreed - so as to modify the economic aspects of the relationship by more than 20% - the Seller can request a revision of the contractual conditions and, failing to reach such a revision, declare the order/contract cancelled.
Art. 15 - Miscellaneous
Any reference to price list, general conditions, or other material of the Seller or third parties is understood to refer to the documents in force at the time of the said reference, except where specified differently.
Notwithstanding anything to the contrary stated in the order/contract, the derogation to one more dispositions of the present General Conditions must not be interpreted extensively or by analogy and does not imply the wish to not apply the General Conditions in their entirety.
Save as otherwise mutually agreed in the order/contract, any dispute arising in connection with the contracts to which these General Conditions apply shall be finally and exclusively submitted to the Seller's competent Court; the Seller, however, shall have the possibility to act also before the Purchaser's competent Court.
Art. 16 - Business Ethics and Corporate Responsibility
The Purchaser shall represent to have read and understood the code of ethics (the “Code of Ethics”) and the organization, management and control model (the “Model”) adopted by the Seller pursuant to the legislative decree dated June 8th, 2001 No. 231 (“Decree”) and made available on its website at www.drillmec.com which establish the principles that all parties who operate in Italy and abroad in the name, on behalf or in the interests of the Seller or entertain relationships with any of them is called upon to abide.
In light of the above, and in relation to the execution of the order and/or the contract of sale, the Purchaser shall undertake to:
(i) manage its activities in compliance with all principles, values and commitments as expressed in the Code of Ethics and the Model;
(ii) refrain from taking any conduct, any act or omission which may violate the principles of the Code of Ethics and the Model adopted by the Seller pursuant to the Decree or commit the crimes set forth thereto;
(iii) ensure that anyone who is a representative, manager or officer of the Purchaser or anyone who is empowered of, even in fact, the management and the supervision of the Purchaser as well as anyone is otherwise subject to the direction or supervision of one of the latter, comply with the same conduct established above and regularly oversee observance of said obligations.
Should the Purchaser, or its officers or persons subject to its direction, breach the principles of the Code of Ethics and the Model and/or commit any crimes set forth thereunder, whether or not the Purchaser is sentenced for those offences, the Seller shall be entitled to terminate the order and/or contract of sale with immediate effect by written notice, without prejudice for the compensation of any damages which the Seller has already suffered.
Any breach or suspected breach of principles of the Code of Ethics, of the Model and of any applicable rules shall be reported to the supervisory board of the Model designated by the Seller at firstname.lastname@example.org. The reports shall contain a description of the events that constitute the breach of the provisions contained in the above-mentioned documents, including information about time and place of occurrence of the relevant events, as well as the persons involved. The Seller will not tolerate threats or reprisals of any kind against employees and third-party collaborators arising from such reporting and shall adopt all appropriate actions against any persons engaging in any such acts of threat or reprisal, subject to the requirements of applicable law.