DRILLCO Headquarters, Chile – Contract Terms & Conditions
1. Definitions: In these terms
“Acknowledgment” means the Seller’s Written acceptance of an Order and “Acknowledged” shall have an equivalent meaning.
“Administration Fee” means a charge payable by the Customer to the Seller to compensate the Seller for Loss and inconvenience.
“Contract” means the agreement between the Seller and the Customer for the sale of Product to the Customer in accordance with any Written specification, quotation, Acknowledged Order (“the Contract documents”) and these terms.
“Customer” means the person or organisation on whose behalf Products are ordered. The Seller relies on the person(s) negotiating the purchase and/or placing the order having the Customer’s authority to do so.
“Delivery” means presentation of Product for acceptance at the place of shipment specified in the Contract whether or not the Product is accepted unless non-acceptance is caused by the fault of the Seller or the Seller’s carrier and “Deliver” has an equivalent meaning.
“Interest Rate” means an annual rate of eight percentage points above the rate for main refinancing operations (minimum bid rate) of the World Central Bank from time to time.
“Loss” means liabilities to third parties, costs, expenses including professional fees, the cost of management time and administration, and includes the Seller’s reasonable assessment of its direct and indirect financial losses, consequential damages, and present or future loss of profit.
“Order” means the Customer’s written request to purchase Product, and shall be effective whether or not the Customer has allocated a purchase order reference to the Order.
“Price” means the Seller’s price of Product specified in the Contract documents or if not specified then in accordance with the Seller’s price list as updated from time to time.
“Product” means the equipment or parts identified in the Seller’s specification or quotation or if the Seller has not provided a specification or quotation then in any Acknowledged Order.
“Seller” means Drillco Chile, Americo Vespucio Norte 1387, Quilicura, Santiago, Chile.
“Special Product” means any Product supplied with non-standard specifications, or which have a limited application. The Seller’s decision as to what constitutes a Special Product shall be binding on the Customer.
“Variation” means a change to the Contract confirmed by the Seller in Writing that includes a statement that it is a variation of the Contract.
“Warranty” means the warranty contained at paragraph 8.2 of these terms.
“Working Day” means any day on which the clearing banks are open for counter business in London.
“Writing” means any written communication including email and “Written” has the equivalent meaning.
2. Contract status:
2.1 A Contract is created when the Seller issues an Acknowledgement. Issue of a specification or quotation and/or receipt of an Order does not create any obligation on the Seller to issue an Acknowledgement and enter into a Contract with the Customer.
2.2 After an Acknowledgement has been issued, whether or not it has been received by the Customer, any attempted withdrawal of an Order will be subject to paragraph 4 of these terms.
2.3 The Seller does not supply Product on any terms other than those set out here, subject to any Variation. Any other alleged term of contract shall be ineffective as between the Seller and the Customer whether or not it has been expressly rejected by the Seller.
2.4 The Seller has not authorised anyone to make representations on its behalf and the Customer may not rely on any representation, forecast, promise, timescale or specification (whether or not printed in the Seller’s marketing and promotional material) except those contained in the Contract documents.
2.5 The Seller shall be under no obligation to accept a Variation to the Contract. In the event of a Variation, the Customer will accept any consequential change to the Price, Delivery date or other change applied to the Contract in Writing by the Seller.
2.6 A Variation applied to any Order does not imply that the same or any other Variation will be permitted in relation to other Orders from the Customer.
2.7 Any failure by the Customer to provide accurate instructions or specifications shall entitle the Seller to increase the Price.
2.8 The Seller has the right to amend the specification, design or material constituting the Product after issuing an Order Acknowledgement where such amendment is in the Seller’s reasonable opinion appropriate for economic, logistical or health and safety reasons. Written notice of any such amendment will be sent to the Customer who shall be bound to accept it unless the Seller receives an objection in Writing within the following 3 working days.
3. Delivery:
3.1 The Seller or its agent shall be under no obligation to enquire into the authority or credentials of a person supplying a receipt for Product Delivered in accordance with the Contract.
3.2 Unless otherwise confirmed by the Seller in Writing, any date for Delivery shall be a target only and delay or failure to Deliver shall not constitute a breach of Contract on the part of the Seller.
3.3 The Seller has agreed to Deliver the Product on the basis that any required export licences are issued and that there are no other restrictions on the supply and transportation of the Product. The Customer accepts responsibility for compliance with all export control regulations, sanctions and restrictions applicable to Delivery and any onward sale, and acknowledges that its failure to so comply shall be grounds for immediate termination of the Contract by the Seller and recovery of any Loss suffered by the Seller.
3.4 The Customer is required to make appropriate arrangements to facilitate Delivery in accordance with the Contract and to accept Product on Delivery. Any delay or failure of Delivery other than that which the Seller considers was caused by circumstances outside the reasonable control of the Customer shall entitle the Seller, at its sole discretion, to cancel the Contract and invoice the Customer for Loss (which invoice shall be payable by the Customer on receipt) or to attempt further Delivery. The Seller may charge the Customer an Administration Fee for further Delivery and may delay further Delivery until that fee is paid in full.
3.5 In the event that Delivery of any Product is delayed for any reason after the Seller has given Written notice of the date on which it is ready to Deliver the Customer will pay to the Seller storage costs for each month or part month until Delivery at 0.5% of the Price of that Product.
4. Order withdrawal:
4.1 Special Product shall be paid for in full whether or not the Customer takes Delivery.
4.2 Any Product that has been Delivered shall be paid for in full.
4.3 The Seller shall be entitled to charge an Administration Fee as a condition of accepting withdrawal of any Order or part Order but shall not be obliged to permit any withdrawal by the Customer.
5. The Price:
5.1 The Price is effective until the date of Delivery or in the event of the Seller’s failure to accept Delivery the date on which the Seller has first attempted Delivery and may thereafter be altered by the Seller.
5.2 In the event that the Seller’s costs of production or Delivery increase, the Seller may notify the Customer in Writing of a proposed increase in the Price and the increase shall be applied to the Price unless the Customer objects in Writing within 7 days of such notice.
5.3 The Customer shall be liable for Loss to both the Seller and the Customer caused by a failure of any bank to transmit funds as instructed or to open a letter of credit on behalf of the Seller.
5.4 During any period when a payment due to the Seller has not been received by the Seller interest shall accrue both before and after judgement on the outstanding sum at the Interest Rate and the Seller shall be under no obligation to accept a payment from the Customer which does not include accrued interest.
5.5 The Price is payable in full or as specified in the Contract and the Customer shall make no retention, set-off or other deduction save as agreed in Writing by the Seller or determined by a court or other authorised adjudicator.
5.6 The Seller shall be entitled to require prepayment or security for payment, or to delay production and/or Delivery at any time when there is reason to believe that the Customer may be or become unable to make payments as they fall due in any jurisdiction (including any failure by the Customer to make a due payment).
5.7 The Customer shall promptly and accurately complete and submit all necessary tax returns and other documentation to the appropriate authorities in relation to export of the Product and shall pay all duties, taxes, licence fees and other expenditure in any jurisdiction resulting from the purchase, export and use of the Product. The Customer shall provide the Seller with sufficient evidence either that this sub-clause 5.7 has been complied with or that a specific exemption applies. The Customer shall indemnify the Seller and keep the Seller indemnified against all such expenditure and Loss caused by the Customer’s failure to comply with this sub- clause 5.7.
5.8 Any payment made by the Customer to the Seller may be appropriated to such debt or other liability of the Customer as the Seller shall determine.
6. Title:
6.1 Risk in the Product will pass to the Customer on Delivery.
6.2 Title to the Product will remain with the Seller until the Price and any other sum due to the Seller from the Customer has been received in cleared funds.
6.3 During any period in which title to the Product is retained by the Seller.
- 6.3.1 the Seller authorises the Customer to sell the Product to a third party at full market value provided that the proceeds of sale are paid either directly to the Seller or into a bank account opened for that purpose in trust for the Seller;
- 6.3.2 the Customer will otherwise hold the Product as bailee and on trust or the Seller, retaining all identifying marks and excluding the Product from any charge or other encumbrance over the Customer’s property;
- 6.3.3 the Customer will keep the Product in good repair and condition, separate from other goods, in its original packaging, marked as the property of the Seller, and insured for its full replacement value against all usual risks in the joint names of the Customer and the Seller. In the event that the Customer does not insure as required by this clause 6.3.3 the Customer shall notify the Seller and promptly provide such information as the Seller requires to effect such insurance at the Customer’s expense;
- 6.3.4 in the event that the Product is damaged or destroyed while in the Customer’s possession the proceeds of any insurance policy relating to such damage or destruction received by the Customer shall be paid either directly to the Seller or into a bank account opened for that purpose in trust for the Seller;
- 6.3.5 the Customer will at the request of the Seller produce sufficient evidence of its compliance with this sub-clause 6.3 including but not limited to access to its premises for inspection of the Product and all related records;
- 6.3.6 the Customer will afford the Seller unrestricted access to the Product for the purpose of repossessing it and irrevocably authorises the Seller to enter on any premises as necessary for that purpose.
6.4 The Seller’s permission for the Customer to retain the Product pending payment of sums due to the Seller shall be automatically withdrawn without notice in the event of the Customer becoming or appearing to be unable to pay its debts in any jurisdiction.
7. Limitation of Liability:
7.1 In the event that the Seller incurs liability to the Customer such liability shall not exceed the Price or the Seller’s insurance cover in respect of such liability, whichever is the greater.
7.2 The Seller shall in no circumstances be liable to the Customer or any third party for loss of profit or other indirect, consequential or incidental loss.
7.3 The Seller shall not be liable in any circumstances to any person claiming that he has suffered injury, loss or damage caused by the installation, commissioning, operation or performance of the Product. The Customer hereby indemnifies and will continue to indemnify the Seller against all Loss arising from any such claim.
7.4 The Seller shall have no liability for installation or commissioning of the Product or advice relating thereto except as expressly included in the Contract.
7.5 Nothing in these terms shall exclude the Seller’s liability for death or personal injury.
8. Warranty:
8.1 The Seller gives no warranty and makes no representation relating to Product other than as stated in the Contract Documents and these terms. In the event of a discrepancy between these terms and the Contract Documents, the Contract Documents shall apply.
8.2 Subject to the terms of this clause 8, the Seller warrants new Product to be free of defects in material or workmanship (“Warranty Defect”) for a period of 6 months from the date of shipment by the Seller (“the Warranty Period”).
8.3 Subject to the Customers compliance with the conditions set out at 8.4 below the Seller shall at its entire discretion either repair or replace such part(s) of the Product as will remedy any defect or refund the price of the Product either in full or in an amount reflecting the unused life expectancy of the Product or issue a credit note for future purchases from the Seller in an amount reflecting the unused life expectancy of the Product.
8.4 The conditions referred to at 8.3 above are that no later than 30 days after expiry of the Warranty Period the Seller receives from the Customer Written notice of a Warranty Defect in the Product accompanied by adequate evidence
- 8.4.1 of the nature and effect of the defect;
- 8.4.2 that the defect manifested within the Warranty Period;
- 8.4.3 that the Product was, from the start of the Warranty Period, maintained and operated within the limits of rated and normal usage;
- 8.4.4 that no alterations have been made to the Product;
- 8.4.5 that the defect was not caused wholly or in part by any act or omission on the part of anyone other than the Seller;
and the Customer complies in all respects with its obligations at clause 8.7 below.
8.5 For the avoidance of doubt, the Warranty shall not take effect if in the reasonable opinion of the Seller the Product has been repaired other than by a person authorised by the Seller, or if the Product has been altered, or has not been properly maintained, stored, transported, used, treated or operated. Improper operation shall include but is not limited to excessive thrust (force feed), rotational torque or rotation speed; use outside designated air pressure range; incorrect lubrication; or use after discovery of defective or worn parts.
8.6 The Warranty does not apply to the following:
- 8.6.1 hammers and drill bits;
- 8.6.2 any defect arising after admission of foreign elements into the air line or drill string, however caused;
- 8.6.3 to button bits unless they have been re-ground at intervals appropriate to the nature of the material being drilled;
- 8.6.4 to oversize drill bit diameters (as defined in the Seller’s catalogues) that have been used in unsuitable conditions and/or where shank failure has occurred;
- 8.6.5 to the breakage of only one button;
- 8.6.6 to any item on which serial number(s) have been altered defaced or removed;
- 8.6.7 maintenance and wear parts;
- 8.6.8 installation or commissioning of the Product, or the effect of its location;
- 8.6.9 any owner or user of the Product except the first end-user, unless assignment of this Warranty has been agreed in Writing by the Seller;
- 8.6.10 damage caused by accident, Act of God, negligence or sabotage; or
- 8.6.11 any item incorporated into or supplied with the Product that is subject to a warranty provided by the manufacturer or supplier of that item.
8.7 Having given the Seller notice of any Warranty Defect, the Customer shall
- 8.7.1 afford the Seller unrestricted access to the Product and the place(s) in which it has been operated to examine the alleged defect and investigate the potential causes including the right to interview any person having had the care or use of the Product; and
- 8.7.2 if so requested by the Seller return the Product to the Seller’s premises at the Customer’s expense for assessment as to whether the Warranty applies, and in the event that it is found to apply the cost of transport to the Seller’s premises will be reimbursed by the Seller to the Customer.
8.8 Any dispute arising out of the application and effect of the Warranty in relation to any specific defect(s) may be referred by either the Seller or the Customer to arbitration by and the decision of the arbitrator including his decision as to who should pay the costs of the arbitration shall be (in the absence of fraud or manifest error) final and binding on both parties.
9. Intellectual Property:
9.1 Sale of the Product to the Customer does not imply any transfer to the Customer of intellectual property relating to the Product, its design, specification, or any part of the sale process.
9.2 To the extent that any information relating to the Product (other than information made available to the general public by the Seller) is disclosed to the Customer, such information remains the exclusive property of the Seller and the Customer agrees not to disclose it, and not to permit any of its employees, contractors or professional advisers to disclose it, by any means to any third party without the prior Written approval of the Seller.
10. General:
10.1 The Contract is not intended to benefit any person who is not named in it as a party to it whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
10.2 The Contract is personal to the Customer and may not be assigned without the prior Written approval of the Seller and subject to such conditions as the Seller shall determine.
10.3 In the event that any part of this Contract is held by a court of competent jurisdiction to be unenforceable, the remaining terms shall continue to have effect.
10.4 Any failure to enforce or delay in enforcing a right arising under this Contract shall not constitute a general waiver of that or any continuing or other such right.
10.5 This contract is subject to the laws of Chile, and any dispute arising from or in relation to it shall be subject to the exclusive jurisdiction of the courts of Chile.