厂房建设工程总承包合同（中英文）
EPC CONTRACT
FOR THE SUPPLY OF ENGINEERING DESIGN
EQUIPMENT, AND SUPERVISION AND COMMISSIONING
Article 1.&&
DEFINITIONS1.&&&
Article 2.&&
PARTS FORMING THE CONTRACT2.&
Article 3.&&
SCOPE OF WORK and TIME SCHEDULE3.&
Article 4.&&
CONTRACT PRICE4.&
Article 5.&&
TERMS OF PAYMENT&&
Article 6.&&
PERFORMANCE and EQUIPMENT WARRANTY BONDS
Article 7.&&
TITLE TO EQUIPMENT and WARRANTIES7.&
Article 8.&&
BUYER’S REPRESENTATIVE&&&&&
Article 9.&&
FORCE MAJEURE9.&&
Article 10.&&
LIENS AND RIGHTS TO TECHNICAL DOCUMENTS
Article 11.&&
CHANGES IN PERFORMANCE OBLIGATIONS
Article 12. &&COMMITTEE
ON DISPUTES12.&
Article 13.&&
ARBITRATION13.&
Article 14.&&
GOVERNING LAW14.&
Article 15.&&
ASSURANCE OF LEGALITY15.&
Article 16.&&
ASSIGNMENT, SUBCONTRACT, PLACE OF ORIGIN
Article 17.&&
NON-WAIVER17.
Article 18.&&
CONFIDENTIALITY18.&
Article 19.&&
BUSINESS ADDRESS AND LANGUAGE19.&
Article 20.&&
DUTIES, TAXES, AND BANK CHARGES20.
Article 21.&&
SEVERABILITY21.
Article 22.&&
TERMINATION22.&&
Article 23.&&
LIABILITIES23.&
Article 24.&&
CONTRACT EFFECTIVITY 24.&
Article 25.&&
SIGNATURES AND NOTARIAL ACKNOWLEDGEMENT
(A)& BUYER
is desirous of establishing ________(the “Plant or Facility”) and
for this purpose is willing to purchase Equipment and services, for
the ______ (hereafter, the “System”) from the SELLER in order to
establish the Plant or Facility.
(B)& SELLER
is willing to supply machinery and Equipment, as well as provide
supervisory and Commissioning services for the System, to the
(C) SELLER has represented that it possesses the required
technology, expertise, know-how, experience and competence, as well
as the necessary permits and licenses to supply the Equipment and
BUYER is willing to engage the services of the SELLER based on said
representations.
NOW, THEREFORE, for and in consideration of the foregoing premises
and the mutual covenants hereinafter set forth, BUYER and SELLER
hereby mutually agree as follows:
Article 1.&&
DEFINITIONS1.&&&
For purposes of this Contract, the following words and expressions
shall have the meanings hereby assigned to them.& The definitions of
the following terms are intended to supplement and not replace any
definitions contained in any of the documents incorporated by
reference herein, but in case of any conflict or inconsistencies
the definitions set forth in this Article shall prevail.
BUYER” shall mean the
SAN MIGUEL (GUANGDONG) FOODS AND BEVERAGE COMPANY,
“Certificate of Final Acceptance” shall mean the certificate to be
issued by BUYER after SELLER’s fulfillment of the warranty period
to the satisfaction of BUYER as specified in Article 6 (PERFORMANCE
and EQUIPMENT WARRANTY BONDS).
Certificate of
Provisional Acceptance” shall mean the certificate to be issued by
BUYER after SELLER’s fulfillment of obligations covered by
Performance Guarantees to the satisfaction of BUYER as provided in
Appendix II.
Commissioning” shall
mean the conduct of functional load and no-load tests of Equipment
delivered by SELLER.
Contract” shall mean
this Contract, including all the Appendices incorporated hereto, as
the same may be mutually amended by BUYER and SELLER in writing
from time to time.
Contract Effectivity”
or “Effective Date of the Contract” shall mean the date when all
the events specified in Article 24 (CONTRACT EFFECTIVITY) hereof
shall have been fulfilled.
Contract Price” shall
have the meaning set forth in Article 4 (“CONTRACT
“Contractor” refers to any entity engaged by BUYER or SELLER to
complete the Erection and Installation Works.
DDU Plant Site” shall
mean Delivered Duty Unpaid Plant Site and as defined in INCOTERMS
2000, as amended, unless otherwise provided in this
“Engineering Design” shall mean the plans, designs and
specifications prepared by SELLER for BUYER pertaining to complete
supply of imported Equipment and Engineering for the System in
accordance with Appendices I, II & IX.
“Equipment” shall mean the machinery, equipment, materials, as well
as Commissioning and supervisory services, if any, that will be
supplied and provided by SELLER to BUYER for the construction and
erection of the facilities comprising the System, more particularly
described in Appendix IV.
“Erection and Installation Works” shall refer to all the works from
the time that the erection and installation Contractor withdraws
the Equipment from BUYER’s storage facilities at the Plant Site
until the completion of such Works as duly certified by
Final Acceptance” shall
mean the date on which BUYER issues a Certificate of Final
Acceptance for the Equipment upon expiry of the warranty period as
specified in Article 6 (PERFORMANCE and EQUIPMENT WARRANTY BONDS).
The Final Acceptance is reached upon successful final completion of
the agreed Performance Warranties according to Appendix
“Force Majeure” shall mean events beyond the control of and
affecting either party which cannot be foreseen or if foreseeable
cannot be either prevented or avoided by the exercise of due
diligence, such as but not limited to revolution, rebellion or
insurrection, state intervention, act of war (declared or
undeclared), hostilities, riot or civil commotion, shipwreck,
earthquake, violent typhoon, flood, fire or other natural physical
disaster and general or industry-wide strikes.
Performance Tests” or
“Acceptance Tests” shall mean the tests to be carried out by BUYER
in the presence and under supervision of SELLER to satisfy the
performance guarantees.
Plant or Facility”
shall mean the complete _______ plant or facility to be put up for
&&&&&&&&&&&&&
“Plant Site” shall mean the parcel(s) of land in__________, The
PROC where the Plant or Facility of BUYER shall be constructed and
“Provisional Acceptance” shall mean the date on which BUYER issues
a Certificate of Provisional Acceptance for the Equipment upon
successful completion of the Performance or Acceptance Tests and
after SELLER’s fulfillment of the obligations covered by
Performance Guarantees as provided in Appendix II.
“Subcontractor” shall mean any one having a direct contract with
the Contractor in executing any part of this Contract, not
including one who merely furnishes materials without
“System” shall mean the________, including the Equipment installed,
commissioned, and tested to be functional and workable, as defined
in Article 3 (SCOPE OF WORK and TIME SCHEDULE) of this
__________3
“Works” shall mean the Engineering Design, Project Coordination,
Supervisory and Commissioning Services to be supplied and provided
by SELLER to BUYER for the supply of the System of BUYER, more
particularly defined and described in Appendices III &
Interpretation
Words importing persons shall include firms and
corporations.& Words importing the
singular shall also include the plural, and vice versa, where the
context so admits.& Reference to “days”,
“weeks” and “months”, unless otherwise expressly provided, shall
mean calendar days, weeks and months of the Gregorian calendar.
References to Articles and Appendices are to be construed as
references to articles and appendices of this Contract. Titles and
captions have been utilized for convenience only and shall be
disregarded in construing the provisions of this
Article 2.&&
PARTS FORMING THE CONTRACT2.&&
Contract as a Whole
The Articles of this Contract and its Appendices are intended to be
correlative and mutually explanatory and should be viewed and
construed as a whole.& The misplacement,
addition or omission of a word or character shall not change the
intent of any part of this Contract from that set forth by this
Contract as a whole.
The following documents are essential portions and are integral
parts of this Contract:
C Ambiguities
SELLER shall be solely responsible for requesting any
interpretation or clarification of this Contract and shall bear any
costs and expenses it may incur by its failure to do so. If SELLER
shall discover any conflicts, ambiguities, errors, omissions or
discrepancies in the Contract, the matter shall be submitted
immediately by SELLER in writing to BUYER for clarification,
together with SELLER’s comments and proposals.& Any work affected by
such conflicts, ambiguities, errors, omissions or discrepancies,
which is performed by SELLER subsequent to discovery but prior to
clarification by BUYER, shall be at SELLER’s risk.
Contract to Prevail
This Contract states the entire agreement of the parties, and the
parties are not and shall not be bound by any stipulations,
representations, agreements or promises, oral or otherwise, not
contained in this Contract or incorporated herein by reference, by
way of a written addendum or supplement, provided that, the terms
thereof are controlling only on matters contained
event of any irreconcilable conflict or discrepancy between the
Articles of this Contract and the Appendices hereof, the former
shall prevail.& In determining
whether or not any such conflict or discrepancy exists, it shall be
resolved in the context that the Appendices are intended to provide
detailed elaboration of general statements in the Articles of this
Article 3.&&
SCOPE OF WORK and TIME SCHEDULE3.&&
Object of Contract
The object of this Contract is to establish, construct, erect,
install and commission at the Plant Site, in first-class operating
condition, the System, which is completely functional as solely
determined by BUYER and is capable of producing the target
__________ while meeting the technical specifications and design
standards set forth in Appendix IV and the production rates,
capacities, product yields and performance guarantees specified in
Appendix II.
& Supply of
The scope of the work required of SELLER under this Contract shall
consist of:
Supply of all necessary Engineering Design for COMPLETE and
WORKABLE systems per department as defined in Appendix
Supply of Equipment DDU Plant Site as detailed in the supply
division list under this Contract as per Appendix III;
Provision of project coordination and supervisory services required
for the local fabrication, construction, erection and Commissioning
of the Equipment to be incorporated in the S and
Any other services, materials or equipment agreed upon between
BUYER and SELLER, as specified in Appendix III.
shall provide, perform, execute, work and deliver the Equipment
and/or parts of machinery and services as listed in the Supply
Division List, which is annexed hereto as Appendix III and in the
detailed specifications sheets which are annexed hereto as Appendix
IV and incorporated as though fully set forth herein.
Equipment is briefly summarized as follows:
SELLER shall deliver the Equipment based on the Specifications of
Shipment as provided in Appendix VI of the Contract.& The payment terms
shall be as set forth in Article 5 (TERMS OF PAYMENT).
event BUYER assigns its rights and obligations under this Contract
as provided in Article 16 (ASSIGNMENT, SUBCONTRACT, PLACE OF
ORIGIN), after securing the consent of SELLER, SELLER shall deliver
the Equipment to BUYER’s assignee under the same delivery terms and
conditions herein provided.
Delivery Schedule &&&
&&&&&&&&&&&&&
It is expressly agreed that time is of the essence in this
The delivery time for the Documentation and Equipment, and the
completion of all other works required under this Contract is shown
in the Delivery Schedule (Appendix V).
This time schedule is based on the approval procedure for the
drawings as mentioned below.
BUYER shall approve the Preliminary Design Documentation as defined
in Appendix I, C, 1.1, and which include the items referred to in
Article 5 (TERMS OF PAYMENT) hereof, and other matters discussed in
the kick-off and design meetings within two (2) weeks after receipt
thereof by BUYER. In the event BUYER does not issue any written
comment or correction within the two (2) week period specified
herein, such drawings, lists and documentation are deemed to be
finally approved.
SELLER may with written notice to and with the written consent of
BUYER deliver at any time prior to the delivery time indicated in
Appendix V.
SELLER warrants that drawings, lists and documentation shall be
sent to BUYER at BUYER’s business address indicated in Article 19
(BUSINESS ADDRESS AND LANGUAGE) within the indicated
Liquidated Damages for Delayed Deliveries&
shall be charged liquidated damages for delayed deliveries in
accordance with Appendix VII of this Contract.
Article 4.&&
CONTRACT PRICE4.&
For and in
consideration of the satisfactory performance by SELLER of the
obligations and undertakings specified hereunder, BUYER shall pay
to SELLER, in the manner and at the times as specified in Article 5
(TERMS OF PAYMENT) below as full and complete satisfaction of its
payment obligations hereunder, the amount set forth
&The Contract Price for
Engineering Design, Equipment, Commissioning, spare parts and fixed
charges for supervision of erection and Commissioning
Contract Price shall not be subject to escalation and includes the
agreed scope of supply of Engineering Design and Equipment, as well
as the cost of packing, insurance, delivery DDU Plant Site
INCOTERMS 2000, as amended, including unloading of Equipment at the
Plant Site.& The Contract Price
shall include duties, taxes, fees and charges of whatsoever nature,
which the government of the country of origin or its political
subdivisions may impose on the Equipment or its exportation, all of
which shall be for SELLER’s account.
&The price
equipment&&
which are producd& in local& are
including&
the charges as the above.
Contract Price shall not include any duties, taxes, fees or charges
of whatsoever nature, which the Government of the PROC or its
political subdivisions may impose on the Equipment or its
importation, all of which shall be for BUYER’s account. The
Contract Price may be changed and settled in accordance with the
provisions of Article 11 (CHANGES IN PERFORMANCE OBLIGATIONS) of
this Contract. The price of& equipment&&
which are imported&&&
are not including& the charges as the
Article 5.&&
TERMS OF PAYMENT&&
Contract Price of __________ shall be payable as indicated
Advance Payment of TEN PERCENT (10%) of the Contract Price,
corresponding to an amount of__________, subject to deduction of
applicable withholding taxes shall be remitted by BUYER via
telegraphic transfer to SELLER’s account made known to BUYER in
writing (“SELLER’s Account”), not later than three (3) months after
the execution of the Contract.& In consideration of
the First Advance Payment, SELLER is obligated to prepare, complete
and submit to BUYER the Preliminary Design Documentation in
accordance with Appendix I, C, 1.1 within _________ (____) days
from the remittance of the payment.& For the avoidance of
doubt, this payment shall be remitted to SELLER’s Account only upon
submission by SELLER of a Bank Guarantee valid for _______ (____)
days, through a bank acceptable to BUYER, in an amount equivalent
to the First Advance Payment after deduction of applicable
withholding taxes.& The Bank Guarantee
shall be authenticated and confirmed by a local advising bank
nominated by BUYER, and shall secure SELLER’s obligation to
prepare, complete and submit the Preliminary Design Documentation
within the schedule and in accordance with the specifications set
forth above.
3_______10%__________ (____)1C 1.1________ (____)
Preliminary Design Documentation shall include the
following:
Basic Engineering and Detailed Technical Specification/s of all
General Equipment Arrangement L
Static and Dynamic Loading D
Fabrication Drawings (for BUYER-supplied Local
Equipment);
Process Flow Sheets (including applicable Heat Balance, Gas
Balance, Chemical Balance and Material Balance);
Electrical Motor Consumer L and
Electrical Control Looping Flow Sheet.
Guarantee shall be released by BUYER to SELLER against a
certification by BUYER as to the completeness and approval of the
Preliminary Design Documentation and upon release of the Second
Advance Payment stipulated herein.
Advance Payment of TEN PERCENT (10%) of the Contract Price,
corresponding to an amount of _________, subject to deduction of
applicable withholding taxes shall be remitted by BUYER to SELLER’s
Account after the above mentioned Preliminary Design Documentation
has been accepted and approved by BUYER.& Prior to the release
of the Second Advance Payment, SELLER must first secure the
Performance Bond as defined in Article 6 (PERFORMANCE and EQUIPMENT
WARRANTY BONDS) and in accordance with the requirements set forth
in the said Article.
________10%6
remaining EIGHTY PERCENT (80%) of the Contract Price shall be paid
in installments described hereunder, with each installment subject
to deduction of applicable withholding taxes paid via confirmed and
irrevocable Letters of Credit (“L/Cs”) to be established by BUYER
in favor of SELLER via a bank acceptable to BUYER -&
SELLER shall be paid the First Installment of Sixty Percent (60%)
of the Contract Price, corresponding to the amount of ____, subject
to deduction of applicable withholding taxes, within sixty (60)
days upon complete delivery of Equipment at the Plant Site to the
satisfaction of BUYER and provided, BUYER has completely received
from SELLER all Equipment documentation necessary or required for
the installation, operation and maintenance of the Equipment in
accordance with Appendix I, C, 1.2. and SELLER has already
submitted the following documents:
6060%_____1C1.2
&(1) Three (3)
Originals of the commercial invoice with three (3) extra copies in
sufficient detail.
Three (3) Originals of the “Clean on Board” FIATA Multimodal
Transport Bills of Lading consigned to the order of BUYER, covering
all the Equipment shipped, as per Appendix IV.
&(3) Three (3)
Originals of the Packing List and Heavy Lift List (if
applicable).
(1) Original Insurance Certificate for Shipping and
Transport.
&(5) Certification of
SELLER as to the completeness of the shipment duly-concurred upon
by BUYER or the Notice/Confirmation of Arrival by the transport
carrier and/or its agent confirming the arrival of the shipment/s
at the Plant Site under the corresponding FIATA Multimodal
Transport Bill(s) of Lading.
each shipment, the following documents shall be mailed by air
express delivery (DHL, TNT or equivalent) to BUYER immediately
after shipment in the set described below:
Three (3) Originals of the Non-Negotiable “Clean-on-Board” Bill of
Lading, consigned to the order of BUYER.
(1) Original Certificate of Origin.b1
Three (3) Originals of the Commercial Invoice.c3
Three (3) Originals of the Packing List as per Commercial
Three (3) Originals of Detailed Packing List as per Appendix
(1) advance copy of the above documents shall be transmitted by fax
to BUYER for purpose of initiating transport and customs
formalities in the PROC.
delivery of Equipment is not allowed hereunder.& In case, however,
SELLER requests to partially deliver Equipment and BUYER, at its
sole discretion, allows such delivery, the release of the
above-mentioned Sixty Percent (60%) of the Contract Price shall
still be upon complete delivery of Equipment as certified by the
BUYER.& Any
additional expense attributable to the partial delivery of
Equipment & i.e., warehousing, double handling, and similar costs
shall all be for the account of SELLER.&&
The Second Installment of Ten Percent (10%) of the Contract Price
corresponding to the amount of _______, subject to deduction of
applicable withholding taxes shall be paid by way of L/C to be
established in favor of SELLER after BUYER certifies that all
Erection and Installation Works have been completed to its
satisfaction, which should not be later than three (3) months from
the completion of Erection and Installation Works in accordance
with Appendix V.
Chinese business law, we should provide the taxi invoice(which
should be including the VAT)after we receive the payment.Three
months is too longer for us(we can accept 30 days)
_____10%43
The Third and Last Installment of Ten Percent (10%) of the Contract
Price corresponding to the amount of_______ (_______), subject to
deduction of applicable withholding taxes shall be paid also by way
of L/C to be established in favor of SELLER after BUYER has issued
the Certificate of Provisional Acceptance, which should not be
later than three (3) months after successful completion of the
Performance or Acceptance Tests and fulfillment by SELLER of the
obligations covered by Performance Guarantees as per Appendix II
and conditioned upon submission by SELLER to BUYER of the Equipment
Warranty Bond described hereunder. Three months is too longer for
us(we can accept 30 days)
______(______)10%23
Article 6.&&
PERFORMANCE and EQUIPMENT WARRANTY BONDS
Performance Bond
BUYER’s release to SELLER of the Second Advance Payment, SELLER
shall provide BUYER with a performance bond in the form of a Bank
Guarantee (the “Performance Bond”) valid for ______ months, through
a bank acceptable to BUYER, in an amount equivalent to TWENTY
PERCENT (20%) of the Contract Price. The Bank Guarantee shall be
authenticated and confirmed by a local advising bank nominated by
BUYER.& The
Performance Bond shall guarantee and secure the satisfactory
performance of any and all of SELLER’s obligations specified under
the provisions of this Contract, and shall be callable upon first
demand without recourse.
Equipment will be erected and commissioned under the supervision of
SELLER according to such terms and conditions stipulated in
Appendix I. The Performance Bond shall remain in effect until the
date of Provisional Acceptance of the Equipment.& If the Project is
extended for any reason whatsoever, SELLER agrees to secure the
extension of the Performance Bond or to secure another Performance
Bond, at least a month prior to the expiration of the Performance
Bond, at the same rate and also in the form of a Bank Guarantee
valid for the extended period of completion as agreed between the
Equipment Warranty Bond
the square should insure a qualified product for buying equipments
as purchase square written formly accreditly, the security deposit
of the equipments has included the quality in engineering protects
the inside of gold
The Equipment and materials supplied by SELLER shall have at least
twelve (12) months warranty (the “Warranty Period”) from any and
all defects and deficiencies, excluding wear and tear, attributable
to SELLER’s scope of supply, or resulting from faulty design,
material and workmanship on condition that the Equipment have been
erected and commissioned under the supervision of SELLER. The
Warranty Period shall start from the date of issuance of the
Certificate of Provisional Acceptance of the Equipment and
materials by BUYER upon the satisfactory completion of the
Commissioning works and the Performance Tests for the Equipment.
The Equipment Warranty Bond shall be kept valid until the date of
issuance of the Certificate of Final Acceptance. Any or all the
Equipment and materials found defective within the Warranty Period
shall be immediately REPAIRED or REPLACED by the SELLER. All costs
and expenses arising out of or relating to such repair or
replacement including transport with insurance to and from factory
of origin or local service shop, re-packaging, dismantling &
re-installation, duties and taxes and other expenses (brokerage
fees, storage, freight charges) and the costs for supervision and
re-commissioning incurred by SELLER’s personnel, shall be for the
account of SELLER.
Warranty referred to in the immediately preceding provision shall
apply to original Equipment and materials replaced or repaired by
SELLER in consonance with the obligations provided hereunder. The
warranty period for such repaired or replaced Equipment and
materials shall be effective for fourteen (14) months from the date
of repair / replacement or date of re-installation and will expire
at the latest twenty-six (26) months from date of Provisional
Acceptance.& The Equipment
Warranty Bond shall be released thirty (30) days after the issuance
of the Certificate of Final Acceptance.
Article 7.&&
TITLE TO EQUIPMENT and WARRANTIES7.&
Equipment, including all its parts and materials, shall become the
property of BUYER upon delivery (DDU Plant Site INCOTERMS 2000)
unless otherwise provided in the Contract.&
shall secure the Contractors / Erection All-Risk Insurance from
date of receipt of the Equipment at the Plant Site.
represents and warrants to BUYER as follows:&&&&
The Equipment shall be brand new, of best quality of materials and
of first-class workmanship, fully meeting the BUYER’s
specifications as set forth in Article 3 (SCOPE OF WORK AND TIME
SCHEDULES) and fit for the purpose/s contemplated under this
The Equipment shall be free and clear of all liens, claims and
BUYER shall be vested with the licenses and permits covering
proprietary information, design and patents necessary to enable
BUYER to operate, maintain, repair, replace and make full use of
It shall make available and provide BUYER with all the data,
information and manuals necessary for the operation, maintenance
and preservation of the E and
It holds BUYER free and harmless from any and all claims for
infringement of patent, design, trademark or trade name, which may
arise from BUYER’s purchase and use of the Equipment.
Article 8.&&
BUYER’S REPRESENTATIVE&&&&&
commencement of SELLER’s performance of its obligations hereunder,
BUYER may, at its option and expense, send representative(s) to
observe SELLER’s performance of the fabrication, packaging and
loading of the Equipment.& SELLER shall give due
regard to said representative’s comments, criticisms or statements
of concern with respect to SELLER’s performance, and SELLER shall
take corrective measures if so required by BUYER.
Article 9.&&
FORCE MAJEURE9.&&
in or failure of performance of either party hereto shall not
constitute default hereunder or give rise to any claim for damages
if and to the extent such delay or failure of performance is caused
by force majeure.
Notification
seven (7) days from the date of recognition of an event of force
majeure, the party affected shall first notify the other in person
or by fax in detail of the event of force majeure and of the
obligation or part of the Works, the performance of which is
thereby necessarily and actually delayed or prevented.& Such notification
shall be confirmed promptly in writing, accompanied by proper
substantiation (which shall include, but not be limited to,
certifications by a public authority or chamber of commerce
official). The party affected shall, upon such substantiation, be
excused from the timely performance or partial performance, as the
case may be, of its obligations hereunder, until such time that the
force majeure event shall have ceased and the performance of its
obligations may be resumed without any further harm or danger to
the Equipment or any personnel of either BUYER or
Mitigation of Effects of Force
parties shall meet as soon as possible after such notification and
regularly thereafter throughout the duration of such event of force
majeure in order to endeavor to mitigate the consequences of such
event and to evaluate the consequences of such event within the
provisions of this Contract.
Option to Terminate
event of force majeure extends for a continuous period of more than
one hundred eighty (180) days and, as a result thereof, either or
both parties are unable during such period to fulfill or resume
performance of their respective obligations hereunder, then BUYER
and/or SELLER as the case may be, may in good faith and in its sole
discretion, terminate this Contract by serving a ten (10)-day
written notice of termination upon the other party. Upon such
termination, SELLER and BUYER shall determine in good faith the
true value to BUYER, if any, of the Works completed by SELLER at
the time of termination. SELLER shall pay to BUYER or BUYER shall
pay to SELLER, as the case may be, the difference between: (i) the
value of the Works so determined and (ii) the amount of the
Contract Price paid to SELLER at the time of termination, in either
case within thirty (30) business days from the date of such
termination.
18010/1230
Article 10.&&
LIENS AND RIGHTS TO TECHNICAL DOCUMENTS
know-how of process and design supplied by SELLER shall remain the
exclusive property of SELLER. BUYER and/or its representatives are
under strict obligation to use drawings, technical data and other
information received from SELLER only as required for the
implementation of this Contract.
Article 11.&&
CHANGES IN PERFORMANCE OBLIGATIONS11&
parties shall have the right, for technical or other reasons, at
any time or from time to time, after signing of this Contract, and
prior to completion of their obligations hereunder, to request in
writing, alterations in, additions to, or deletions from their
obligations hereunder.
upon such request by either party, SELLER shall prepare and submit
to BUYER a detailed estimate of the adjustments on the Contract
Price and time of delivery at the Plant Site caused by such
requested alteration, addition, or deletion of
obligations.
event the parties agree in principle to such estimate, then both
parties shall implement such change as a written addendum to this
Contract, and the actual and final Contract Price as adjusted
thereof shall be settled separately by mutual agreement between
BUYER and SELLER.& In this case, SELLER
agrees to secure the necessary amendment/s to the Bank Guarantee,
Performance Bond or any other bonds or guarantees related to this
Agreement, for its own account.
Article 12.&&
COMMITTEE ON DISPUTES12.&
In case of any controversy, claim or dispute arising out of or
relating to this Contract, or the breach hereof, both parties shall
meet and exert their best efforts to find an amicable settlement
thereto following the procedure specified herein.
parties agree, for this purpose, to appoint a committee of three
(3) members, one member from each party, both of which to designate
a third member who shall act as chairman, to address any dispute/s,
which may arise under this Contract.& The decisions of the
committee shall require only a simple majority.
committee shall meet in ______& within two (2) weeks
upon request by either party. Should the committee be unable to
recommend any resolution mutually satisfactory to the parties
within ninety (90) days of said meeting, the parties are free to
proceed with arbitration as provided in Article 13 (ARBITRATION)
2______ 9013
Article 13.&&
ARBITRATION13.&
agreement within a period of ninety (90) days from the date on
which either party with reference to this article requests in
writing an amicable settlement, the matter will be settled by
arbitration in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce.
the submission to arbitration and thereafter until the Board of
Arbitration notifies the parties of its decision, the parties
shall, except in the event of termination of this Contract pursuant
to the terms hereof, continue to perform all of their obligations
under this Contract without prejudice to a final adjustment in
accordance with the said decision.
decision of the Board of Arbitration shall be final, conclusive and
binding upon the parties hereto.
&The arbitration costs
determined by the Board of Arbitration shall be shared in equal
amounts and shall be borne by each party regardless of the decision
of the Board of Arbitration.
by the Board of Arbitration shall be final and binding on the
parties hereto and may be enforced by judgment of a competent court
having jurisdiction in the premises.& It is hereby mutually
agreed that an arbitral award shall be a condition precedent to any
legal action that either party may have against the
Article 14.&&
GOVERNING LAW14.&&
Contract shall be construed in accordance with, and the rights and
obligations of the parties hereto shall be governed by the laws of
the PROC.&
The laws of the Republic of the
Philippines will only apply to the extent that the laws of the PROC
do not cover a particular issue or matter in this
Article 15.&&
ASSURANCE OF LEGALITY15.&&
hereby warrants that it has full capacity to enter into this
Contract under the laws of the PROC and that said Contract is not
in contravention of any of the laws of ________(SELLER’s country of
hereby warrants that it has full capacity to enter into this
Contract under the laws of the PROC and that said Contract is not
in contravention of any of the laws of the PROC.
The parties agree that the aforesaid warranties are material terms
of this Contract and that each has entered into the same in direct
and express reliance thereon.
Should there be a change in the legal system of the country of
either party, which change makes this Contract or the entry by any
party thereto unlawful or unenforceable, such party shall inform
the other and both of them shall undertake measures to bring the
Contract or the entry into it by both parties in compliance with
If the parties cannot agree upon the terms of reformation, the
matter shall be referred to arbitration in accordance with Article
13 (ARBITRATION) above.
Article 16.&&
ASSIGNMENT, SUBCONTRACT, PLACE OF ORIGIN
Contract shall not be assigned by either party without the prior
written consent of the other. No assignment of this Contract shall
be valid until and unless this Contract shall have been assumed by
the assignee. When duly assigned in accordance with the foregoing,
this Contract shall be& binding upon and
shall inure to the ben however, the assignor
shall remain responsible towards the other party for proper
fulfillment of the Contract.
Notwithstanding the foregoing, SELLER may sublet to
Subcontractor/s a portion of its obligations to be performed under
this Contract without obtaining the prior written consent of BUYER,
provided however, that SELLER shall take into consideration and
adopt any suggestions by BUYER as to terms and conditions of the
subcontract between SELLER and the Subcontractor/s.
suggestions by BUYER shall not relieve or release SELLER from any
of its warranties, guarantees, obligations or responsibilities
under this Contract. BUYER reserves the right to proceed directly
against SELLER or its Subcontractor/s to enforce said warranties,
guarantees, obligations and responsibilities of SELLER under this
Contract simultaneously, alternatively, concurrently, or
successively.
subcontracting of all or any part of this Contract by SELLER shall
not relieve SELLER from any of the obligations or conditions of
this Contract.
Nothing in
this Contract shall create any obligation on the part of BUYER to
pay any sums to any Subcontractor.
of origin of the Equipment shall be _______.
Article 17.&&
NON-WAIVER17.&&
rights, powers, privileges and remedies of BUYER under this
Contract shall remain cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights or remedies
permitted by law.& No delay or failure
on the part or either of the parties in exercising any right under
this Contract, and no partial or single exercise thereof, shall
constitute a waiver of such right under this Contract, or preclude
any other or further exercise thereof or the exercise of any other
right, power or privilege.& No modification or
waiver of any of the terms, conditions and provisions hereof shall
be implied from any course of dealing or subsequent act or conduct
hereunder.&
No waiver of any provisions of this Contract may be validly made
except in writing.&
Article 18.&&
CONFIDENTIALITY18.&
In the course of the performance of its obligations under this
Contract, SELLER may be supplied by BUYER with confidential
information regarding the business of BUYER, its subsidiaries or
affiliates.& In such event, SELLER
shall not disclose to anyone or use, except as expressly authorized
by BUYER in writing, any such confidential information supplied to
SELLER for the performance of its obligations
hereunder.&
SELLER shall be bound by this obligation until such time as said
confidential information shall lawfully become part of the public
domain.& In
addition, information regarding any aspect of BUYER’s businesses,
howsoever acquired by SELLER, its personnel, employees, agents or
Subcontractors in the performance of its obligations specified in
this Contract, shall be confidential except to the extent that the
same has been published or otherwise made freely available to the
general public by BUYER without any restriction.
Article 19.&&
BUSINESS ADDRESS AND LANGUAGE19.&
BUYER’s business address:
Facsimile No._________
Attention:& & _________
SELLER’s business address:&
Facsimile No.__________
Attention: &&&
__________
Any notice to be given under the provisions of this Contract by
either party to the other shall be in writing and sent by
registered mail or by personal delivery to the above addresses with
an advance copy to be sent by fax at the above numbers.
Any communication or notice so given, shall be deemed to have been
given, if:
Delivered personally, on the day
(b)&& Sent
by mail, on the day of receipt or tenth (10th) day after posting,
Transmitted by facsimile, on receipt by the sender of a
transmission or control report from the dispatching machine showing
the relevant facsimile machine number and the result of the
transmission as “OK” or similar response.
Either party shall have the right to change its address, facsimile
number and/or authorized representative to give and receive notices
by giving notice thereof to the other party in the manner herein
above provided.
language to be used in communications between BUYER and SELLER
shall be English.& English language
shall be used in all documents, drawings, manuals, numbering
system, Equipment labels and specifications, and all other
communications mentioned in this Contract.
Article 20.&&
DUTIES, TAXES, AND BANK CHARGES20.
Any dues, stamp duties, export duties, bank charges and taxes
levied in the country of origin in connection with the
implementation of this Contract shall be for SELLER’s account.
SELLER, at its own expense, shall procure any and all export
permits and/or licenses required for exporting the Equipment from
the country of origin thereof.& Any and all charges
for opening and maintaining any letter of credit, or securing,
confirming and issuing any bond, guarantee, or similar security
required under this Contract shall also be for SELLER’s
stamp duties, import duties, and taxes, levied in the PROC in
connection with the implementation of this Contract, shall be for
BUYER’s account.
Article 21.&&
SEVERABILITY21.
The parties agree that in the event any of the provisions of this
Contract is later found or declared to be invalid, illegal or
unenforceable by competent authority, the other provisions of this
Contract not found or declared invalid, illegal or unenforceable
shall remain in force and effect.& Moreover, the parties
shall promptly meet in good faith to agree on alternative
provisions that will achieve the same result, as the provisions
declared invalid, illegal or unenforceable.
Article 22.&&
TERMINATION22.&&
understood and expressly agreed that in the event of termination of
the Contract, after it becomes effective, by BUYER for any reason
not attributable to the fault or negligence of SELLER, BUYER shall
pay to SELLER the actual, reasonable and documented costs of all
materials, Equipment and Works supplied or performed by SELLER to
the satisfaction of BUYER as of date of termination.& All materials and
Equipment so paid shall become the property of BUYER.
without incurring any penalty whatsoever, has the right to
terminate this Contract for sufficient causes, which shall include
but not necessarily be limited to the following acts of
Declaration of bankruptcy, insolvency or assignment of its assets
for the bene
Violation of or breach of the provisions of this Contract or
failure to execute the Works according to the agreed schedule of
completion, including extensions (if any);
Failure to provide a qualified and competent field project
coordinator, supervisors, competent workmen or subcontractors, or
proper materials or equipment,
Failure to make proper and prompt payments to its subcontractors,
workmen and material dealers.
Article 23.&&
LIABILITIES23.&
SELLER shall not be responsible and BUYER shall not claim costs for
consequential damages, such as but not limited to, lost profit,
production costs, opportunity costs or indirect damages, unless
they are attributable to the fault, negligence or bad faith of
The parties agree that SELLER can take over any Performance Bond or
Equipment Warranty Bond only if the Erection and Installation of
Equipment will be supervised and the specialists of SELLER will
conduct Commissioning and Performance Tests.
prejudice to its obligations secured by the Bank Guarantees,
Performance Bond and Equipment Warranty Bond required under the
Contract, SELLER shall be charged liquidated damages for either:
(i) delays in the delivery of the Engineering Design and / or the
Equipment and / or the Commissioning / Supervision of the S
or (ii) failure of Equipment to attain indicated performance
values, in accordance with Appendix VII hereof.& Liquidated damages
shall be limited in aggregate to twenty percent (20%) of the
Contract Price.
obligation of SELLER to pay liquidated damages shall be separate
and independent from the full compliance of its obligations under
the Contract.& Therefore, SELLER
cannot avoid compliance with its obligations under the Contract by
merely paying the liquidated damages stipulated herein, it being
understood and agreed that in case of breach by SELLER of its
obligations under the Contract, BUYER may, at its option, take over
the performance of the Work/s contracted herein, in which event,
SELLER shall be liable for all costs and expenses incurred in this
connection, as determined by BUYER in addition to the liquidated
damages stipulated herein.
Article 24.&&
CONTRACT EFFECTIVITY 24.&
Contract shall become effective on the day on which all of the
following conditions are fulfilled:
Contract is signed by authorized representatives of both parties in
two (2) originals, one
Receipt by SELLER of the First Advance P and
Receipt by BUYER of the Bank Guarantee for the First Advance
Payment, secured by SELLER in accordance with the terms of Article
5 (TERMS OF PAYMENT).
any of the above terms and conditions are not fulfilled within
ninety (90) days after the date of execution of this Contract, and
should such non-fulfillment be solely attributable to one party,
the other party shall have the right to terminate this Contract by
and should such non-fulfillment be attributable to
both parties, this Contract shall be terminated automatically,
however, in this case, if mutually agreed upon by both parties, the
period of ninety (90) days as set forth herein may be extended
further by a reasonable period.
Article 25.&&
SIGNATURES AND NOTARIAL ACKNOWLEDGEMENT
IN WITNESS
WHEREOF, this Contract has been executed at the place and on the
date set forth hereunder.& This Contract shall
be considered executed on the date of last signing by the
&&&&&&&SELLER
By:&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
Date:&&&&&&
&&&&&&&&&&&
Place:&&&&&
&&&&&&&&&&&
&&&&&&&&&&&&&
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