1. GENERAL ASPECTS
These General Terms & Conditions for DELFIN TUBES SA, products and services (the “Terms and Conditions”) shall apply to all contracts of Purchase of products and services between DELFIN TUBES SA, S.L. and the Supplier, hereinafter each a "Party" and collectively the "Parties."
The present general purchase conditions exclude any others; the Supplier's general contracting conditions that differ from these, will only be considered to be accepted if DELFIN TUBES S.A. has confirmed them in writing.
The acceptance of supplies or services from the Supplier and even payment for these does not imply approval of the Supplier's sale.
The Supplier must send to DELFIN TUBES the acceptance of the Order or its revisions within the five days following reception of these, by electronic mail. In the event that said acceptance has not been received when five days have passed, it will be understood that the Supplier automatically accepts all the terms included therein.
In any event, the sending of materials by the Supplier, after having received the corresponding order that includes the present purchase conditions, will be considered for all purposes proof of conformity and acceptance of these.
Any modification or amendment of the Order after the contract has been concluded that has not been requested by DELFIN TUBES S.A. will require the previous, written authorization of DELFIN TUBES S.A.
If one clause of these conditions and the remaining agreements concluded should be or become invalid, this will not affect the rest of the conditions.
For all purposes herein, the terms “Product” or “Products” shall include, and shall not be limited to, the raw materials, equipment and component parts and the proprietary process (if applicable) that is the subject of the Purchase Order confirmation (as hereinafter defined) and/or Purchase Documents (as hereinafter defined), of every kind and nature, and each and every component part and connection thereto necessary for the operation of such Products for the uses and purposes of the DELFIN TUBES and Customer as defined in the International Agreement.
Likewise, for all purposes herein, the term "Services" that are the subject of the Purchase Order confirmation and/or any Purchase Document shall include, and shall not be limited to, all labor, materials, travel and living costs, equipment rental, and other associated costs of every kind and nature in connection to the Services that are the subject of the Purchase Order confirmation and/or any Purchase Document.
Specification" or "Specifications" shall mean the specific details of the Products and/or Services provided by DELFIN TUBES in this Purchase Order confirmation, any Purchase Document, and/or DELFIN TUBES’s quotation request(s), all of which may be amended via written communication between DELFIN TUBES (or its agents) and Supplier or between Customer and Supplier which such communication Supplier shall have approved by DELFIN TUBES in writing prior to implementation.
For all purposes herein, Supplier, including its subsidiaries, affiliates, shareholders/members/partners and assigns, and all of their respective shareholders/members/partners, directors, officers, employees [including any temporary, leased, or borrowed employees], representatives, agents, independent contractors, Suppliers, successors, assigns, and/or consultants shall hereinafter be referred to individually as a "Supplier Party" or collectively as "Supplier Parties.”
Definitions shall be as follows: acceptance shall mean acceptance of the work by DELFIN TUBES as provided for under these conditions and Contract shall mean the contract between company and DELFIN TUBES / date of Purchase Order or date of p.o. shall mean the date mentioned in the p.o. form / delivery dates shall mean the dates indicated in the Purchase Order form and/or the protocol of negotiation when the work or any part of it shall be delivered. those dates shall be considered as latest date and are binding / documentation means all documents and data relating to the supplies and the services, including but not limited to the specifications, drawings, design, and reports on fabrication, delivery or inspection, instruction for handling, assembly, operation, maintenance to be supplied by Supplier to DELFIN TUBES under the Purchase Order / fabrication schedule shall mean the detailed time schedule prepared by the Supplier and submitted to DELFIN TUBES, showing in particular the chronological order of the major activities, key dates, procurement of material, inspections dated, and the delivery dates, etc. in accordance with the Purchase Order / incoterms shall mean the international chamber of commerce rules for the interpretation of trade terms – edition 2020 or latest version If applicable / instruction for variation shall mean DELFIN TUBES’ right, at any time, to instruct Supplier to make changes in quantity, quality, drawings and technical specifications, methods of shipment and packaging, delivery dates and the place and terms of delivery in respect of any part of the work as further described under / company shall mean the final client of DELFIN TUBES / party shall mean DELFIN TUBES or the Supplier, collectively the “parties” / Purchase Order or P.O. shall mean the set of contractual documents as specified and subject to mutual agreement during commercial negotiations at article of the protocol of negotiation herein representing the agreement of DELFIN TUBES and Supplier for the delivery of the work, including any amendment thereof / prudent or best industry practice shall mean those practices, methods, specifications, and standards that a prudent, competent, experience and expert Supplier in the international engineering, petrochemical and construction industry would be expected to use and/or adapt in relation to the design, engineering, manufacture, installation, construction, commissioning and testing of works similar to the work in a high level performance / Purchase Order form shall mean the written and signed order issued by DELFIN TUBES to the Supplier / Purchase Order price as set forth represents the total amount agreed between DELFIN TUBES and Supplier for the performance of the Purchase Order and includes, but is not limited to all fees, royalties, taxes, duties, levies, and other charges, as well as all costs for packaging, storage, transportation and insurance(s) / Purchase Orderrevision shall mean the revised p.o. signed by DELFIN TUBES or in any other form and referred to as an amendment or change to the p.o., for the purpose of a variation as described in article 3 “right to change the work / deviations / inconsistencies” / regulations shall mean laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, statutory requirements, decrees of any governmental authority etc., applicable to the work (including any applicable regulations of company including any modification of the same during the performance of the work) / Supplier shall mean the persons, companies or corporations named as such in the Purchase Order or their successors or permitted assignees, being liable for any obligations arising out of the Purchase Order. for the avoidance of doubt the terms Supplier, contractor, vendor, Supplier shall have the same meaning in the entire Purchase Order in case the same legal entity is defined / sub-Supplier shall mean a third party who has entered into a subcontract with the Supplier for the performance of any part of the work. Supplier shall impose upon the sub-Supplier any requirements, obligations etc. imposed by the Purchase Order on the Supplier for the part of the work concerned as if the sub-Supplier, was the genuine Supplier. any condition applicable to the Supplier is also applicable to any sub-Supplier entrusted by the Supplier to perform the work or part of it / the definition of sub-Supplier includes any sub-sub-Suppliers etc. / services means technical assistance services including design, testing, training, expediting, quality assurance control, packing, repair, analysis in connection to the work, as specified or required under and for the Purchase Order / supplies shall mean all equipment, material, item, parts to be provided by the Supplier to DELFIN TUBES under the Purchase Order, including items put at Supplier’s disposal / site or plant shall mean the operation site in the final client facilities, where the plant is located and where the supplies will be implemented by request of DELFIN TUBES or the final client / technical specifications shall mean all the requirements, specifications, standards, codes, data sheets and drawings including and/or referred to in any of the Purchase Order and to which the work shall conform / work shall mean all supplies, the documentation and services to be performed by the Supplier as set forth in the Purchase Order documents.
2. INVOICING AND PAYMENT
The Supplier undertakes to issue and send all invoices in electronic format to the email address invoices@delfintubes.com, within the established invoicing period.
Supplier shall submit one (1) PDF file per invoice. Invoices must include DELFIN TUBES Purchase Order (PO) number and DELFIN TUBES Project number, if any. The invoices issued in other countries of the EU must mention the tariff heading and the net and gross weights.
The invoices from month X received on the 15th day or later of the month X+1 will be entered into the accounts for maturity starting from the first day of month X+1.
The invoices will be paid according to the conditions established in the Order.
Failure to comply with invoicing instructions will result in invoices being returned to Supplier for correction. The payment period will commence from receipt of the corrected invoice.
Note for Transport Orders (TR) – In accordance with the regulations in force at present, the transport of merchandise related with the exportations of merchandise outside the territory of the European Union is VAT-exempt. The previous statements include the transport of merchandise to port-, airport-, or border areas for its subsequent shipping outside of EC territory. In order to document the invoice issued without VAT, DELFIN TUBES S.A. commits to submit a copy of the SAD for export before the end of the maximum allowable period of one month from the definitive export. The previous statements are regulated by the VAT Law 37/1992 Article 21.5 and VAT Regulations, approved by the Royal Decree 1624/92 Article 9.1.5 or any other applicable Laws valid at the time of the Purchase Order is issued by DELFIN TUBES or at the time of issuing the authorized invoice by the Supplier.
3. SCOPE AND DELIVERY CONDITIONS
All component parts, items and/or services specified in the Purchase Order, or which are required according to best industry practice to achieve the purpose of the Purchase Order, are part of the scope of the work to be provided by the Supplier, although they may not be expressly mentioned in the Purchase Order.
Part of the Supplier’s work is the duty to adapt and complete the documentation to be supplied, or which may already have been supplied, with respect to any changes and/or additions to the work which may arise during the execution of the Purchase Order.
Supplier shall not vary any of the work except in accordance with DELFIN TUBES’ prior written instructions. Supplier guarantees to have received any necessary information on all matters affecting the Purchase Order. Supplier is responsible to obtain any permits and governmental approvals necessary for the performance of the works.
In accordance with the INCOTERMS 2020 ICC indicated in each Order or Incoterms latest version +.
The Supplier is aware that the delivery conditions specified in the Order for the delivery of the supply (including the technical documents or necessary certificates) are binding and that they cannot be extended in time without the DELFIN TUBES' written consent. The Supplier must provide the DELFIN TUBES with the technical certificates, directions for use, handbooks, exploded diagrams and any other documents specified in the Order. The supply will not be considered complete until all materials, equipment and documents have been submitted, and this could lead to consequent repercussions on payment. Additions to and revisions of the Order will not imply a delay in the delivery of the materials and/or services except with written consent of the DELFIN TUBES.
Time is of the essence of the Contract and delayed deliveries shall not be accepted unless expressly agreed in writing by DELFIN TUBES. In case late delivery is accepted it will generate a penalty of 0,5% per week, with a maximum of 10%.
Nevertheless, the contract can be terminated or cancelled by the DELFIN TUBES at any time for justified cause, including but not limited to when he has basic grounds to conclude that a fundamental breach of contract will occur with respect to future obligations, as indicated in the agreement or these conditions. In this case, he can suspend or cancel any pending obligations.
The Supplier shall promptly rectify any late delivery or deficiency in Supplier’s scope of work. If he refuses, or if he has tried once unsuccessfully or if he has not succeeded within a period of time as reasonably determined by DELFIN TUBES after the corresponding request by DELFIN TUBES to completely and properly rectify any delivery or deficiencies, DELFIN TUBES has the right to rectify the situation by himself or to have these activities performed by a third party, at the cost and risk of the Supplier. DELFIN TUBES will then arrange for another performance test at the cost and risk of the Supplier, and if this should be unsuccessful, DELFIN TUBES is entitled to: a) immediately terminate or cancel the PURCHASE ORDER in total or partly, and/or; b) demand damages due to non-fulfilment of the PURCHASE ORDER, and / or; c) reduce the overall price of the PURCHASE ORDER according to the reduced value of the WORK, which will be reasonably determined by DELFIN TUBES and/or; d) to arrange for another performance test
DELFIN TUBES reserves all rights to seek other or further relief from Supplier if the Final Run-off Criteria in the applicable Work Order are not met including, without limitation, direct, indirect or consequential damages or profit or economic losses, in relation with or derived of an action or omission of the Supplier.
Partial supplies are not permitted, unless DELFIN TUBES S.A. has expressly approved them or they are reasonable.
The unreserved acceptance of a supply or service outside of the agreed period will not imply any type or waiver of actions to claim reparation or compensation for damages deriving from the delay, and this rule will apply until the full payment by DELFIN TUBES S.A. of the remuneration associated with the goods or service provided.
DELFIN TUBES reserves the right to make amendments to Product specifications at any time, including once the Purchase Order confirmation has been processed, when they are necessary to comply with applicable laws and regulations and/or where they do not decrease the quality, output, or marketability of the Products. DELFIN TUBES will inform the Supplier in writing of such alterations.
4. FORCE MAJEURE, TRANSFER OF RISK AND INSPECTIONS
Force Majeure: the existence of force majeure, which includes in this case, labor conflicts, riots, interruption of business activity or administrative measures and other unavoidable events that are not the fault of DELFIN TUBES S.A., exempt DELFIN TUBES S.A. as long as these circumstances persist, from the obligation to accept deliveries on the agreed date. In any other situation not regulated by this clause, ICC Force Majeure Clause shall apply subsidiarily.
Likewise, while these circumstances persist, and during the fifteen days following their termination, DELFIN TUBES S.A. will be empowered to cancel the contract as a whole or in part without prejudice to its remaining rights, as long as the duration of these circumstances is not irrelevant and its needs for supply are considerably reduced due to supply from other Suppliers that may be necessary due to the said circumstances.
Transfer of risk: the risk of loss or damage to the merchandise to be delivered will be the responsibility of the Supplier until the moment of its receipt by DELFIN TUBES S.A. or by the person designated by DELFIN TUBES S.A. at the delivery point, understood as the place to which the merchandise must be delivered or the services be provided in accordance with the order. Transfer of risk shall pass to DELFIN TUBES after complete and agreed reception of the goods or services provided in good order and conditions by the Supplier to DELFIN TUBES as stated by written authorization, according to the agreed Incoterm. The transfer of risk shall not affect legal or contractual guarantees granted by the Supplier.
Transfer of title shall pass to DELFIN TUBES after the signing of the contract or upon correct delivery and agreed reception by DELFIN TUBES stated by written authorization, at the election of DELFIN TUBES. In case of bankruptcy, insolvency or similar situation of the Supplier, DELFIN TUBES will have the right as its sole discretion of execute any right without opposition of the administrator or receiver of depositary of the Supplier.
Inspections: Before delivery and during the whole period of production or manufacture of the goods or services to be supplied, DELFIN TUBES S.A., or the third party with whom DELFIN TUBES S.A. arranges the service reserves the right to inspect and verify the quality and compliance of materials with the requested standards and norms, and also the suitability to the order of the materials used at the facilities and factories of the Supplier or those Suppliers or Suppliers with which it arranges the execution of the Order, at least in part.
DELFIN TUBES S.A. likewise reserves the right to perform a final inspection of the whole of the Order at the facilities of the Supplier or the Supplier, and it must be given notice of this sufficiently in advance so that the material may be at its disposal.
At any rate, the performance of said tests and inspections of manufacture and final inspection of the materials that can be carried out at the criterion of DELFIN TUBES S.A., will in no case constitute an exemption for the Supplier from complying with the contractual obligations regarding suitability, quality, quantity, and adequacy of the product or service for the agreed use without presence of flaws or defects, nor will it constitute a limitation with respect to the guarantees of the product.
5. PRICES
The price established in the Order will not be subject to revision due to increases in the prices of raw materials, or labor or for any other reason. The price will not include the applicable taxes unless the Order expressly indicates otherwise. DELFIN TUBES will not pay for materials, equipment or labor costs not included in the Order, unless these have been previously offered in writing by the Supplier and accepted in writing by DELFIN TUBES.
Prices shall not include any kind of cost, expenses, taxes, duties, excises or any other concept, unless agreed in writing signed by DELFIN TUBES in the Purchase Order. Product and Service prices will be in Euros as indicated in the Purchase Order confirmation and/or Purchase Document which such price shall equal the price listed in the Purchase Order as defined in any quotation otherwise agreed to in writing between the Parties based upon DDP DELFIN TUBES’ factory or agreed destination point, as indicated by DELFIN TUBES (as per Incoterms 2020 ICC).
Supplier shall pay all taxes including excise, occupational, sales, use, withholding taxes, value-added taxes, goods taxes, duties, assessments, liens, and similar charges another taxes applicable to the sale of the Products and purchase or provision of materials incorporated into the Products due and owing up to the time of the arrival of the Products to Destination Point (Incoterms 2020 ICC) at the country of origin. Supplier shall indemnify and hold DELFIN TUBES harmless from and against all liability for such taxes.
The price set forth in Supplier’s quotation shall include all charges including packaging. If Supplier’s quoted prices for the Products covered by the Purchase Order confirmation and/or any Purchase Document are reduced (whether in the form of a price reduction, closeout, rebate, allowances, or additional discounts offered to anyone) at time of shipment, Supplier agrees that the price to DELFIN TUBES for such Products will be reduced accordingly, and that DELFIN TUBES will be billed at such reduced prices.
6. LIABILITY+
The Supplier assumes the obligation to comply with all applicable legislation and/or regulations, in attention to the territorial scope of the activity.
The Supplier assumes compliance with the laws that regulate international trade, as well as the regulations applicable to imports, exports and international sanctions that are in accordance with EU legislation, carrying out with due diligence their obligations to know the "third parties" before carrying out a commercial operation.
In the event of liability claims against DELFIN TUBES S.A. regarding one of the products that it supplies, the Supplier must accept and exempt DELFIN TUBES S.A. from liability if the damage has been caused by a defect in the item supplied.
The Supplier will be exempt from liability if it demonstrates that it has not had any relationship with the event causing the damage.
In the case of product liability claims against DELFIN TUBES S.A., that can be attributed to the Supplier, the Supplier will pay all costs and expenses deriving from the claim including those brought by the possible exercise of legal actions.
The Supplier takes exclusive responsibility for all damages caused to any person for the company, or third parties employed in executing the order, and that derive from failure to comply with any of the standards in matters of health and occupational safety.
The Supplier is likewise obliged to comply with this for all its workers and all workers subcontracted for the execution of the order, and to verify and adopt all control and supervisory measures in order to verify that they comply with all obligations in matters of labor law, prevention of occupational risks and social security, and in the contrary case, it releases DELFIN TUBES S.A. of any such responsibility.
In the event any joint and several liability is claimed against DELFIN TUBES S.A., for any of the reasons, the company will be empowered to repeat the action against the Supplier, including said repetition of damages claimed and also the court costs of said claim.
Likewise in compliance with Article 24 of the Law of prevention of occupational risks and its regulations for implementation, the contractor must present the documents required by DELFIN TUBES S.A. before the start of work and cooperate through the coordination measures for the proposed business activities.
The Supplier likewise commits to guarantee and to accept responsibility that in cases where the staff of DELFIN TUBES S.A. may be relocated to the Supplier's facilities for the execution of the order, compliance with all standards in matters of health and occupational safety be guaranteed by committing to adopt all control and supervisory measures to verify that they comply with all obligations under labor law, in prevention of occupational risks and social security, while exempting DELFIN TUBES S.A. from all liability in the event of failure to comply.
In said case, if the authorities should lodge some sort of liability claim against DELFIN TUBES S.A., the company will have the right to repeat the claim against the Supplier.
The failure to comply with this clause will itself be sufficient reason and justification for the automatic cancellation of the contract with a claim in said case for the damages sustained.
Civil liability: the Supplier is obliged to accept liability, and to exempt DELFIN TUBES S..A from any responsibility in the case of damages caused to third parties as a result of damages deriving from lack of conformity or defects in the products or services supplied.
The Supplier is obliged in any case to subscribe and maintain in force a civil liability insurance policy that covers any damage or contingency in relationship with third parties regarding the goods or services purchased to guarantee said coverage and it is also obliged to present said policy to DELFIN TUBES at any moment.
The failure to hold or to maintain in force said insurance policy will be a just reason for DELFIN TUBES S.A. to cancel the contract without prejudice moreover to claims for damages that could be sustained as a result of said default.
To the fullest extent permitted by law, Supplier shall indemnify, defend with counsel approved by DELFIN TUBES, protect, and hold harmless DELFIN TUBES, including its subsidiaries, affiliates, shareholders/members/partners and assigns, and all of their respective shareholders/members/partners, directors, officers, employees (including any temporary, leased, or borrowed employees), representatives, agents, successors, assigns, and consultants (hereinafter referred to individually as a "DELFIN TUBES Indemnified Party" and collectively as "DELFIN TUBES Indemnified Parties") from and against any and all liability, claims, causes of action, demands, losses, damages, injunctions, lawsuits, obligations, and/or any other legal proceeding whether based on tort (including but not limited to strict liability in tort, willful and wanton conduct, negligence, or any other tort theory), contribution, indemnity, contract, and/or warranty, or any other basis for legal remedies brought against the fulfilling Party in connection with, or related to the Products and/or Services, including without limitation attorney's fees, defense costs and expenses, expert witness fees and expenses, court costs, damages, penalties, settlement, verdict, judgment, award, and/or appeal in connection with or arising out of any personal injury, death, damage to property (including the Products and/or Services), destruction of property (including the Products and/or Services), direct damages sustained or alleged to have been sustained in connection with or to have arisen out of any kind of non-fulfilment of the Supplier whatsoever, such as the following:
- any design defect or manufacturing defect in the Products, defect in workmanship, and/or defect in materials, components, or component systems selected, manufactured, and/or supplied by Supplier;
-Supplier's and/or its assigns, employees (including any temporary, leased, or borrowed employees), shareholders/members/partners, officers, directors, agents, affiliates, representatives, and/or consultants (hereinafter collectively referred to as "Supplier Representatives") negligent acts or omissions in connection with a) any design defect, manufacturing defect, warnings or instructions defect, b) Supplier’s failure to meet or comply with industry consensus standards relating to any of Supplier’s Product(s) or component part(s) sold to DELFIN TUBES, or c) any Products or Services pursuant to this Agreement;
-Services performed by any vendors, Suppliers, third-party service companies and/or their respective affiliates, performed or contracted by Supplier and/or Supplier’s Representatives and or any materials or component parts supplied by such vendor, Supplier, third party service company, and/or their respective affiliates, including but not limited to, negligent acts or omissions of such vendor, Supplier, third-party service company and/or their respective affiliates. For the avoidance of doubt, vendors, Suppliers, third party service companies, and/or their respective affiliates do not include DELFIN TUBES and/or DELFIN TUBES Representatives;
-the failure of Supplier and/or Supplier Representatives to perform or comply with any of their obligations under this Agreement or with any IP infringements;
-Supplier's or Supplier Representatives’ failure to properly or adequately warn or instruct DELFIN TUBES and/or Customer regarding components or component systems selected, manufactured, and/or supplied by Supplier;
-any breach of any express or implied warranty for ordinary or particular purpose of the Products, failure of the intended use of the Products, and/or if the Products fail to be of merchantable quality, and/or if the warranties provided by the Supplier fail of their essential purpose;
-the negligent acts or omissions of Supplier or Supplier Representatives in the packaging, transportation, or shipment of Products;
-any of the following (1) claims for wages or expenses by Supplier and/or any of Supplier Representatives; (2) claims for social security, housing and mandatory retirement fund contributions, state unemployment (or foreign equivalents), or any other payroll or withholding taxes incurred with respect to Supplier and/or Supplier Representatives; and (3) claims which may be brought by Supplier and/or Supplier Representatives under any industrial accident or workers’ compensation laws or occupational health and safety laws of any national, federal, provincial, state, county, municipal, or other government;
-any third-party claim or lawsuit based on any violation or breach of the intellectual property rights of a third party consistent with this Agreement;
-any of Supplier’s or Supplier Representative’s acts or omissions in connection with or pertaining to Customer’s request for (1) such Supplier’s or Supplier Representative’s performance of maintenance, service, repair, inspection, or replacement of a part of a component neither manufactured nor sold by DELFIN TUBES and/or its affiliates; and/or (2) such Supplier’s or Supplier Representative’s performance of any services that were not requested by DELFIN TUBES and/or its affiliates;
-late or wrong delivery of Products when the Supplier and/or Supplier Representatives delivers Products to an agreed location; and/or
-any security breach of DELFIN TUBES’s and/or Customer’s network and/or information contained on such network as a result of Supplier’s acts or omissions.
Supplier shall provide DELFIN TUBES with copies of all relevant papers received by Supplier with respect to any action for which any DELFIN TUBES Indemnified Party is entitled to indemnity hereunder and shall further keep DELFIN TUBES reasonably informed with respect to the status of any such claims. Supplier shall not settle the underlying claim without the prior written consent of the applicable DELFIN TUBES Indemnified Party, which consent shall not be unreasonably withheld, unless the settlement terms are strictly a monetary payment made by Supplier to the applicable third-party claimant and contain an unconditional release of DELFIN TUBES Indemnified Parties or Customers.
In any and all claims against the DELFIN TUBES Indemnified Parties by any employee of the Supplier, anyone directly or indirectly employed by Supplier or anyone for whose acts the Supplier may be liable, the indemnification obligations under this Clause entitled Indemnification shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Supplier under worker's compensation acts, disability benefit acts, or employee benefit acts.
DELFIN TUBES shall provide Supplier with copies of all relevant papers received by DELFIN TUBES with respect to any action for which any Supplier Indemnified Party is entitled to indemnity hereunder and shall further keep Supplier reasonably informed with respect to the status of any such claims. DELFIN TUBES shall not settle the underlying claim without the prior written consent of the applicable Supplier Indemnified Party, which consent shall not be unreasonably withheld, unless the settlement terms are strictly a monetary payment made by DELFIN TUBES to the applicable third-party claimant and contain an unconditional release of Supplier Indemnified Parties or Customers.
In any and all claims against the Supplier by DELFIN TUBES, the indemnification obligations under this Clause entitled Indemnification shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable.
Supplier shall provide and maintain at its own cost and without cost for DELFIN TUBES:
- third party liability insurance with a limit of not less than 5 millions EURO (EURO5,000,000.-) or equivalent including extended products liability coverage, covering the whole warranty period as per Purchase Order.
- transportation/marine insurance subject to international standard terms and conditions in accordance with the delivery terms of the Purchase Order.
- employer’s liability insurance in accordance with the applicable laws.
- insurance for Supplier ´s working and other equipment to be brought to the site.
- personnel insurance including but not limited to workman’s compensation in accordance with the applicable laws covering losses in connection with illness, personal injury or accidental death among Supplier ´s and its sub-Suppliers’ employees performing work anywhere in the world.
- if applicable, automobile liability insurance covering owned, non-owned and hired motor vehicles used in connection with the work as per the applicable laws but with a minimum limit of at least one million eur (eur 1,000,000.-) or equivalent for personal injury or death and property damage resulting from each occurrence.
- any other insurance which is legally required.
all Supplier’s insurance shall - unless otherwise stated above - be effective from the start of the work and shall not expire before the end of the guarantee/warranty period.
all insurance policies shall – to the maximum extent permitted by law – state, that the insurers waive all rights of subrogation against DELFIN TUBES and the company and their employees.
Supplier shall ensure that all insurance policies contain a clause requiring the insurer to notify DELFIN TUBES 60 (sixty) days in advance before the insurance is materially changed or cancelled or ceases for any other reason.
Supplier shall provide certified copies of the insurance policies or insurance certificates relating to all insurances mentioned above.
DELFIN TUBES has the right to deduct and retain any payment due to Supplier’s breach of the Purchase Order, including but not limited, penalties or other present or future costs for which Supplier is liable.
7. LIENS AND ENCUMBRANCES
The Supplier guarantees that at the date of delivery the supply on delivery to the DELFIN TUBES/Owner will be free of any lien, encumbrance and attachment or similar claims from any third party.
The work shall at all times be free and clear of any third-party charge, lien, encumbrance or other security interest. the Supplier shall inform DELFIN TUBES immediately of any such security interest or likely to become subject to similar restraints on disposal or legal measures. The Supplier shall hold DELFIN TUBES harmless and indemnify DELFIN TUBES from and against all costs arising out of such security interest.
8. GUARANTEES
The Supplier guarantees that the supply and all its components and/or parts of the supply will be new and top-quality and will comply strictly with the characteristics and specifications agreed in the Order. That they will be free of manufacturing defects or hidden faults, and that they are suitable for the process/function to be performed in accordance with specifications submitted by DELFIN TUBES. The Supplier will be responsible for the earliest possible repair, without charges to DELFIN TUBES/Owner, of any defects or faults in the supply derived from defective design, materials or manufacture and from acts or omissions of the Supplier that have been demonstrated or that come to knowledge of the parties before the maturity of the agreed guarantee deadline. The Suppler is obliged to substitute completely the defective products, materials or services as soon as possible, entirely at its own cost, in the event that the said repair is not possible in good time and due form.
The Supplier guarantees that the work is: - designed and fabricated according to the Purchase Order and the latest proven and accepted state of the art, - free from any defects in design, workmanship and material, - new, unused, undamaged and of merchantable quality , - fit for the particular purpose for which it is intended, - accompanied by all information, warnings, instructions and documentation relevant for the use, storage, operation, consumption, transportation and disposal of the SUPPLIES, - in conformity with all regulations and the technical specifications.
Supplier warrants that all Products and/or Services shall conform to the Purchase Order confirmation and/or any Purchase Documents or confirmation, DELFIN TUBES’s quotation request(s), and all applicable drawings, Specifications, service levels, samples or other descriptions given in all respects, and that the Products delivered hereunder will be new and of good quality, material, and workmanship, merchantable and free of defects and fit for the particular purpose as described in the Specifications for the use and benefit of the DELFIN TUBES or Customer.
Supplier warrants that all Services will be performed in accordance with the highest industry standards by properly trained and supervised personnel and will conform to all laws, regulations, standards and Specifications related thereto.
Supplier warrants that the Products that are the subject of the Purchase Order confirmation and/or any Purchase Document or confirmation (including, without limitation, the component parts thereof) were manufactured and assembled in compliance with the laws of each jurisdiction where such Products were manufactured and assembled, and furthermore, that those Products were manufactured and assembled, and will operate in compliance with the laws of the State and country, and jurisdiction where such Products will be installed and operated by DELFIN TUBES or by the Customer, as the case may be.
Supplier represents that Supplier has reviewed the laws of each jurisdiction referred to herein prior to providing the warranty referred to herein. Supplier represents that the Products that are the subject of the Purchase Order confirmation and/or any Purchase Document shall not be subject to seizure, fines and penalties imposed on Supplier, DELFIN TUBES, or Customer by each jurisdiction for failure to comply with the laws of each jurisdiction referred to in this clause.
Supplier warrants that the Products and all proprietary processes that are the subject matter of the Purchase Order confirmation and/or any Purchase Document or confirmation were manufactured and assembled and will operate and perform in strict accordance with the Specifications for the use and benefit of the DELFIN TUBES or Customer, as the case may be.
Supplier represents that DELFIN TUBES or Customer has communicated the Specifications of all connections to Supplier necessary to operate the Products that are the subject matter of the Purchase Order confirmation and/or any Purchase Document in the manner and for the purpose described in the Specifications and ambient conditions of operation described by DELFIN TUBES or Customer.
Supplier represents that DELFIN TUBES or Customer has adequately described to Supplier the Specifications and the ambient conditions of operation of the Products that are the subject of the Purchase Order confirmation and/or any Purchase Document, and that Supplier has reviewed those Specifications and conditions of operations, and that Supplier has had adequate time to investigate those Specifications and conditions prior to providing the representations and warranties described in the Purchase Order confirmation and/or any Purchase Document, and Supplier has not qualified or conditioned (and will not qualify or condition) the representations and warranties described herein.
Supplier further represents that, Supplier has, at Supplier's sole cost, expense, and risk, performed such tests and inspections of the Products, proprietary process and Services, as the case may be, necessary to confirm that the Products, process and/or Services that are the subject of the Purchase Order confirmation and/or any Purchase Document or confirmation conform to the Specifications and the ambient conditions of operation described herein or described by DELFIN TUBES or Customer by any other means of communication.
Unless otherwise stated in the Order or in these conditions, the guarantee period will be 12 months from the moment when the supply was delivered to the facilities where it is to be used
This warranty shall apply for a period of the first to elapse of (a) two (2) years from the date DELFIN TUBES or Customer, as the case may be, successfully uses each of the Products, or (b) four thousand (4,000) working hours which shall in no event be less than one (1) year from the date DELFIN TUBES or Customer, as the case may be, successfully uses each of the Products (hereinafter, the “Warranty Period”).
During the Warranty Period, Supplier will, at its cost, take all reasonable measures to rectify any defect in the Products or Services under the provisions of this warranty within sixty (60) days of Supplier's receipt of notice of such defect by mail, email or facsimile provided; however, that if a minor failure or claim occurs such as a part failure requiring replacement, Supplier shall take all reasonable measures to rectify such situation within two (2) days. Supplier shall have the applicable time period mentioned in the preceding sentence to repair or correct the non-conforming Products, process, and/or Services, and if not repaired or corrected in such period or Supplier is not using best efforts to repair or correct within such period, Supplier shall, in Supplier's reasonable discretion, provide substitute Products or Services until the defective Products or Services have been repaired or shall provide a successfully negotiated refund of the purchase price to DELFIN TUBES. All expenses, costs, and risks associated with DELFIN TUBES's return, take down, removal, or holding of the non-conforming Products, process and/or Service shall be at Supplier's sole cost, expense, and risk. In addition, Supplier shall pay to DELFIN TUBES all expenses incurred by DELFIN TUBES and Customer including, but not limited to, packing, shipping, insurance, customs duties, unpacking, inspecting, correcting, traveling, installing, supervising installation, operating, certifying, startup, training, removing, repacking, storing, handling and reshipping any non-conforming Products, process, and/or Services and for evaluating non-conforming Products, process, and/or Services.
Supplier understands and acknowledges that Supplier's Products may be sold by DELFIN TUBES to a Customer. Supplier hereby agrees that this warranty shall inure to the benefit of DELFIN TUBES and the Customer and that Supplier will engage with the Customer on any warranty issue with Supplier-provided Products in the same manner as Supplier would engage with DELFIN TUBES. For the avoidance of doubt, this warranty shall survive any inspection, delivery, acceptance, or payment by DELFIN TUBES and DELFIN TUBES shall have the right, at all times during the Warranty Period, to inspect the Products, process and/or Services.
9. DOCUMENTS AND CONFIDENTIALITY
Any type of commercial or technical information that DELFIN TUBES S.A has placed at the Supplier's disposal (including characteristics that are evident in documents, plans, software or items delivered) must be inaccessible for third parties whenever the Supplier cannot demonstrate that this information is public knowledge, and at the Supplier's company it may be made available only to persons who must necessarily participate in guaranteeing the delivery of the Order to DELFIN TUBES S.A. and who are in turn bound by commitments to confidentiality. The said information will be the exclusive property of DELFIN TUBES S.A. and it may not be reproduced, copied or used industrially, without the authorization of DELFIN TUBES S.A., except to make the deliveries specified in the contract. When DELFIN TUBES S.A. so requests, said documents (which may also include copies and registers that have been made) will be destroyed.
The products that have been manufactured in accordance with documents designed by DELFIN TUBES S.A. (sketches, models or similar) in accordance with the confidential data of DELFIN TUBES S.A. shall be proprietary information of DELFIN TUBES and may not be used by the Supplier for its own purposes, nor to offer or supply to third parties. Specific confidentiality and non-disclosure conditions shall apply to the Supplier by determination of DELFIN TUBES who will be the owner of any proprietary information supplied by the Supplier under the Contract or the Purchase Order.
The Parties must ensure that the confidentiality of all information of a technical nature is maintained (e.g. drawings/designs, technical documentation, formulae and correspondence in general) according to these Conditions and best industry practices. Supplier shall consider and treat all information (which shall include, but is not limited to the scope of the Purchase Order confirmation and/or any Purchase Document and the Customer's name and other Customer information) shared by DELFIN TUBES with Supplier and specific to the Purchase Order confirmation and/or any Purchase Document or confirmation as confidential and shall not disclose any such information to any other person or entity, or use any such information itself for any purpose other than pursuant to and as required by the Purchase Order confirmation and/or any Purchase Document, unless Supplier obtains prior written permission from DELFIN TUBES to do so.
Supplier shall not advertise or otherwise disclose any information relating to this order without, in each case, DELFIN TUBES's prior written permission. Supplier shall disclose the information supplied by DELFIN TUBES only to those Supplier Parties necessary to fulfill the Purchase Order confirmation and shall ensure conformance of such Supplier Parties to the terms contained herein. Supplier shall not, without DELFIN TUBES's prior written consent, use the information for any purpose other than to fulfill and comply with the Purchase Order confirmation and/or any Purchase Document. The provisions of this clause shall remain valid and in effect including where the Purchase Order confirmation is terminated or expires (for any reason whatsoever).
10. VALIDITY OF THE GENERAL PURCHASE CONDITIONS
The General Purchase Conditions will apply and form part of the Order in combination with all terms and conditions stated therein, except those that are expressly modified in the Order. In the event of conflict, the Order will take precedence over any other document.
Those provisions of the Purchase Order that by their nature are intended to survive the termination, completion or expiry of the Contract (including any provision limiting or releasing liability) shall continue as valid and enforceable provisions notwithstanding any such termination, completion or expiry.
Should any provision (or a part thereof) of the Purchase Order be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions (or any portion thereof) of the Purchase Order.
The Parties agree to replace the invalid or unenforceable provision (or any portion thereof) by a valid or enforceable provision (or portion thereof) which comes closest to the original intent of the Parties. This also applies to deficiencies or omission in the Purchase Order not foreseen by the Parties at the time of signing the Contract.
11. TERMINATION AND WITHDRAWAL
In addition to the general reasons for termination of contract due to a serious failure to comply with the obligations derived from the contract, and, if applicable, due to hidden flaws or defects in the item purchased or supplied, DELFIN TUBES S.A. may terminate the contract effective immediately if:
A fundamental deterioration in the Supplier's financial relationships or solvency occurs or is threatened to occur, and as a result of this there is a risk that the Supplier may not comply with its obligations to supply to DELFIN TUBES S.A.
The item purchased or supplied is lost as a whole or in part before delivery, including due to an unforeseen accident or without fault on the part of the Suppler, although in the case of partial loss DELFIN TUBES S.A. may opt to reclaim the existing part by paying its price as a percent of the agreed total.
If the Supplier has agreed to the delivery of a certain quantity of products or the provision of a specific service, then DELFIN TUBES S.A. will not be obliged to accept a part of this. If DELFIN TUBES S.A accepts a partial delivery, then it may terminate the contract for the part that remains pending or request the performance of the contract for that part.
Time is of the essence of the contract and shall be justified cause to terminate the Contract at any time by DELFIN TUBES if delivery shall not comply with the terms. If the Supplier does not deliver the item to be purchased or supplied or does not provide the service in the stipulated time period, then DELFIN TUBES S.A. may request the performance or the termination of the contract with penalties and compensation, in both cases, for the damages that it has sustained from the delay.
If the Supplier does not proceed to repair or substitute the item within the guarantee period agreed for the defective item, product or service in good time and due form after previous written notice from DELFIN TUBES S.A., when 10 working days have passed since said notice.
In cases when there is non-compliance with the deadline on the part of the Supplier, as a result of force majeure, and the compliance with this deadline is fundamental so that DELFIN TUBES S.A. can comply with its obligations to its customers, then
DELFIN TUBES may cancel the Order at its choice by written notice to the Supplier within a period of 5 days from which it has certain knowledge of the existence of said event.
DELFIN TUBES may terminate the Purchase Order or any part thereof by written notice to the Supplier, if the Supplier has breached any of the following terms and conditions, and has not remedied such breach after receipt of a ten (10) calendar days’ notice to comply with the Purchase Order:
- if the Supplier is adjudged bankrupt,
- if Supplier files a petition in bankruptcy,
- if the Supplier makes a general assignment for the benefit of his creditors,
- if the Supplier enters into deterioration of assets,
- if a receiver, administrator or trustee is appointed on account of Supplier’s insolvency,
- if the Supplier disregards regulations or the technical specifications,
- if the Supplier, at any time, refuses or fails to carry out or complete the work with promptness or diligence,
- if the Supplier fails to make prompt payment of any due amounts to any sub-Supplier,
- if the Supplier substantially violates any provision of the Purchase Order,
- if the work is delayed by more than one month or 20 % of the delivery time agreed in the Purchase Order.
- if Supplier fails or refuses to comply with DELFIN TUBES written instructions
- any other events if specified in the Purchase Order.
In the event of termination, the Supplier shall promptly comply with all instructions of DELFIN TUBES and/or permit or procure permission for DELFIN TUBES to enter any Supplier premises or any other premises where supplies may be located at the date of termination and permit or procure permission for DELFIN TUBES to collect the same. DELFIN TUBES may finish the work by whatever method DELFIN TUBES may deem expedient, including the hiring of third parties under such terms as he may deem advisable.
In such case, the Supplier shall not be entitled to receive any further payment until completion of the terminated work occurs. upon completion of the work DELFIN TUBES will determine the total cost incurred in completing the work, including additional overhead, legal and other costs and damages incurred by DELFIN TUBES. if the cost of completing the unfinished work exceeds the amount due to the Supplier, then the Supplier shall pay such excess cost to DELFIN TUBES as a debt due from the Supplier.
DELFIN TUBES may, without cause at DELFIN TUBES’ discretion, terminate this Purchase Order in whole or in part at any time by written notice to the Supplier. such termination shall be effective in the manner specified in said notice and shall be without prejudice to any claim which DELFIN TUBES may have against the Supplier. on receipt of such notice, the Supplier shall, except as directed otherwise, immediately discontinue the WORK and the placing of orders for materials, facilities and supplies in connection with the performance of the WORK and shall, if requested, make every reasonable effort to procure the termination/cancellation of existing orders and subcontracts on terms satisfactory to DELFIN TUBES. Thereafter, the Supplier shall perform only such work as may be necessary to preserve and protect the work already in progress, to protect the material, equipment or supplies on site or in transit thereto, and to dispose of any property as requested by DELFIN TUBES.
12. JURISDICTION AND APPLICABLE LEGISLATION
Any dispute that may arise in interpreting and applying the conditions included in the present agreements will be exclusively subject, at the option of DELFIN TUBES S.A, to the Courts and Tribunals of Oviedo (Spain) or DELFIN TUBES's residence, with express renounce of any other jurisdiction that might be applicable.
The present contract is subject to the Spanish Laws and jurisdiction. Words used in the singular shall also include the plural and vice versa. Clause headings are for convenience only and are not a part of the agreement between the Parties.
The application of the uniform laws of The Hague on international purchasing is likewise excluded, together with the remaining existing Conventions in matters of international sales (including CISG Vienna 1980 and any others).
DELFIN TUBES shall be entitled to assign to an affiliate or his nominee, all or any rights and/or obligations under the Purchase Order – including the entire Purchase Order without consent of Supplier.
DELFIN TUBES´ business activities are governed by a set of commitments, values and ethics which are expressed in the Supplier’s Conditions and Policies (“CAP”). SUPPLIER represents and covenants that it shall at all time during and/or in connection with the term of this PURCHASE ORDER comply with the CAP and the commitments, values and ethics expressed therein. The CAP shall form part of the PURCHASE ORDER and will be available at https://www.delfintubes.com/ in its latest version.
Forbearance or failure of either Party to enforce any of these Terms and Conditions or any of the other terms of the Purchase Order confirmation and/or any Purchase Document or to exercise any right accruing from any default of the other Party shall not affect or impair either Party’s rights upon continuance of such default nor shall such forbearance or failure constitute a waiver of any future default.
Nothing in these Terms and Conditions shall create, or be deemed to create a partnership, or the relationship of the employer and employee, agency, franchise or distribution between the Parties. Neither Party shall seek from the other party any employment related benefits and agrees to hold the other party harmless from any such claims by each other, its assigns, employees (including any temporary, leased, or borrowed employees), shareholders/members/partners, officers, directors, agents, affiliates, representatives, independent contractors, consultants, and/or other third-parties.
Except as otherwise provided herein, these Terms and Conditions along with the Purchase Order confirmation and/or any Purchase Documents or Contracts or terms sheet, or conditions from DELFIN TUBES or Customer shall constitute the entire agreement between the Parties with respect to the subject matter and may not be changed, modified or extended except by a written instrument authorized by DELFIN TUBES.
In the event that any provision of these Terms and Conditions shall be void or unenforceable by reason of any provision of applicable law it shall be deleted and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect of the spirit of these Terms and Conditions so far as possible.
The terms, covenants and provisions of these Terms and Conditions and the Purchase Order confirmation and/or any Purchase confirmation Documents shall be binding upon the Parties and their respective successors and assigns. The remedies set forth in these Terms and Conditions and the Purchase Order confirmation and/or any Purchase Documents shall be the sole and exclusive remedies available to either Party and are in lieu of and shall not exclude any remedies available to DELFIN TUBES at law or equity.
At the time of delivery of the Products, Supplier will deliver to DELFIN TUBES design drawings and specifications for the Products, a final copy of the drawings, user and maintenance manuals, and other documents reasonably requested by DELFIN TUBES related to the Products as accepted by Supplier.
13. PERSONAL DATA PROTECTION
DELFIN TUBES, S.A., in compliance with the Organic Law 15/1999 of December 13 concerning the Protection of Personal Data (LOPD), DELFIN TUBES S.A. gives notice that the personal data provided for the contracting and provision of its services will be incorporated into a computerized archive in its possession for the adequate management of the commercial relationship and compliance with the legal obligations deriving from it. In this sense, it therefore agrees to the collection of data, as well as to the communication for the indicated purposes that may be carried out between the entity and other entities related to the provision of services of DELFIN TUBES SA or its auxiliary companies in the terms provided in above mentioned Law.
You can exercise your rights to access, correct, oppose and cancel by contacting our offices at the address that appears on the letterhead, stating precisely which right you wish to exercise. In the event that in your communications you provide us with the data of a third party, before including these data, you must request its consent and inform it of the details stated above.
Supplier warrants that the work does not infringe any third-party’s intellectual property IP rights. The Supplier hereby irrevocably grants to DELFIN TUBES and company on a non-exclusive and worldwide basis free of charge or fee and royalty free, perpetual, transferable license, with the right to grant sublicenses, to use all drawings, documents, software including its documentation, engineering and other data prepared or furnished by the Supplier in performing the work and the work itself for the intended purposes of the Purchase Order
Supplier represents and warrants to DELFIN TUBES and Customer that he is the owner of all right, title and interest in any data described above and/or is in possession of valid and existing licenses to the same which allow for Supplier to grant the license described above or assign these rights or interests to DELFIN TUBES without condition or payment.
The Supplier shall indemnify and hold harmless DELFIN TUBES and company against any and all liability, loss, damage, legal costs, legal fees or expense by reason of any claim, action or litigation in respect of any alleged or actual infringement or misappropriation of any patent, copyright or trademark or any other intellectual property rights, foreign or domestic, resulting from the use or resale of the work or from the breach of the representation or warranty given in these conditions.
