DRILLMEC
GENERAL SALES CONDITIONS
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
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 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 he 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 the agreed 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 technical specifications for a period of twelve months from the date of
start-up or fifteen months from the date of delivery, whichever occurs first. The Purchaser
acknowledges that the products are of a size, design and type as described in details in the
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 - 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 usual
prevailing 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 - 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.
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. 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. 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 15 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.
5.7 - Limit of Seller's liability - This warranty supersedes all legal warranty for defects and
compliance; in no event shall the Seller be liable to the Purchaser for any direct, indirect,
consequential, incidental or other damages, including without limitation any claim for damages
based on lost revenues or profit, however caused by the products and arising from any breach of
contract.
Art. 6 - Testing
6.1 - 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 he does not want to attend the
testing, or anyway he 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.
6.2 - 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.
6.3 - 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. 7 - Delivery
7.1- Surrender of the products - Unless agreed to the contrary, 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.
7.2 - 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.
7.3 - Seller's obligation to deliver the products - In the event that a delay of more than thirty
days in the delivery of the products is ascertained, and such delay is exclusively attributable to the
Seller’s fault, the Purchaser may cancel the relevant order/contract only after having first
communicated, by means of registered letter with advice of receipt, such an intention to the Seller.
He should also agree a new time limit of at least 30 days from the receipt of the communication,
within which the Seller should remedy and deliver all the products specified in such a
communication and not yet delivered. Any liability of the Seller is excluded for the damage deriving
from anticipated, delayed or failed delivery, total or partial.
7.4 - 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.
7.5 - Force majeure - The delivery time limit will be extended by a period equal to that of the
duration of the impediment due to causes beyond the Seller’s or the Purchaser’s control, such as
strikes of any kind, fires, floods, power shortages, shortage or scarcity of raw materials, breakdowns 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 or excessively onerous. Both the Seller and the Purchaser will have the
authority to cancel the order/contract, with a month's written notice if the impediment persists for at
least 90 days. In no case will the Purchaser or the Seller be able to claim from the other party
compensation or indemnification of any kind.
Art. 8 - Services
8.1 - 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.
8.2 - 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.
8.3 - 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 Purchaser’s request of information.
8.4 - Force Majeure - The Seller shall be entitled, at its choice, at any time, to suspend the
execution of the Services or to terminate the related contract with the Purchaser, with immediate
effect by written communication, in case of unforeseen events outside the control of either Party
that may render impossible or dangerous the fulfilment of the contract, that shall include but not
necessarily be limited to war (whether declared or not), hostilities, riots, civil disorders that may
occur in the Country where the Services must be carried out.
8.5 - Warranty - The Seller warrants that the Services shall comply with the provisions of the
related contract until the expiry of the warranty term set up in the same contract. The Purchaser
must immediately inform the Seller in writing (through a detailed description with photos) of any
problem arisen that could be attributable to the Services, and the sole remedy in favour of the
Purchaser shall be an intervention by the Seller, scheduled by the latter. This warranty supersedes
all legal warranty for compliance.
8.6 - Limit of Seller's liability - Except for wilful misconduct or gross negligence, in no event shall
the Seller be liable to the Purchaser for any direct, indirect, consequential, incidental or other
damages, including without limitation any claim for damages based on lost revenues or profit,
however caused by the Services and arising from any breach of contract.
Art. 9 - Payment
9.1 - 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 are not
regarded as made until the relative sums reach the Seller.
9.2 - Delays in payments - 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 damages. The delay of
payments likewise gives the Seller the right to exclusion from guarantee, mentioned in art 5 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. 10 - 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. 11 - 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. 12 - 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. 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 non apply the
General Conditions in their entirety. Any dispute arising in connection with the contracts to which
this 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.