CONTRACT FOR THE SUPPLY OF MECHANIZED EQUIPMENT AND PATENT TECHNOLOGY 本协议于 中国某技术进口公司（系依中华人民共和国法律组建的公司，注册地址； ，以下简称买方）于德国某公司（系依德国法律组建的公司，注册地址： ，以下简称：卖方），通过慎重确CONTRACT FOR THE SUPPLY OF MECHANIZED EQUIPMENT
AND PATENT TECHNOLOGY
本协议于 中国某技术进口公司（系依中华人民共和国法律组建的公司，注册地址； ，以下简称买方）于德国某公司（系依德国法律组建的公司，注册地址： ，以下简称：卖方），通过慎重确切的洽谈，并对合同认真研究核准后，双方签字订立条款如下：
This Contract is made and entered into force this 2nd day of by and between Technical Import Corporation, a company organized and existing under the laws of the People’s Republic of China with its registered office at . China (hereinafter referred to as “the Buyer”) and ABC Company, a company organized and existing under the laws of Germany with its registered office at (hereinafter referred to as “the Seller”). After sound and definite negotiations, the Contract is read and scrutinized carefully, duly signed by the contracting parties and enacted as follows:
第一章 合同内容 CHAPTER 1 OBJECT OF THE CONTRACT
The Buyer agrees to buy from the Seller and the Seller agrees to sell to the Buyer equipment, materials, design and technical documentation, patent and knowhow license, and technical services for a plant with a 54,000 KW phosphorus electric furnace which has a production capacity of 30,000 (thirty thousand) metric tons of yellow phosphorus per year and 70,000 (seventy thousand ) metric tons of sodium tripoly phosphate per year, with phosphate rock as raw material using the Process stipulated in Article 10.1 to the Contract. (hereinafter referred to as “the Contract Plant)
For safe and normal operation of the Contract Plant the Seller shall supply within the battery limits all equipment, such as process equipment, machinery, electric installation, instrumentation and automatic control systems, special laboratory apparatus, special equipment and tools for construction and erection, easily worn-out spare parts, and spare parts necessary for two-year normal operation after acceptance of the Contract Plant (hereinafter referred to as “Equipment”),as well as materials, such as piping materials, materials for electric installation, for instrumentation and for automatic control system, other materials necessary for erection and lubricants (hereinafter referred to as “Materials”),except those to be supplied by the Buyer (as stipulated in Annex Ⅵ). Details of the major Equipment and the Materials supplied by the Seller are specified in Annex Ⅲ to the Contract. For battery limits of the Contract Plant see attached Drawing No. 1 of the Contract and connecting points are stipulated in Annex Ⅲ to the Contract.
The Seller undertakes to make all the engineering designs of the Contract Plant according to the basis of design stipulated in Annex I to the Contact, except the designs to be performed by the Buyer (as stipulated in Annex Ⅱ). The Seller shall supply to the Buyer complete designs and technical documentation (hereinafter referred to as “Technical Documentation”)Details are stated in Annex Ⅴto the Contract.
The Seller shall dispatch their experienced and competent technical personnel to the Contract Plant for technical instructions with respect to Erection, Mechanical Tests, Commissioning and Per5formance Test of the Contract Plant. The number of the personnel and the extent of the services and treatment conditions are specified in AnnexⅦ to the Contract.
The Seller shall be responsible for the training of the technical personnel dispatched by the Buyer. The number of the personnel, training place, the object of the training and living conditions are specified in Annex Ⅶ to the Contract.
Within 15(fifteen) years after acceptance of the Contract Plant the Seller agrees to sell to the Buyer spare parts, as well as all equipment and materials necessary for the Contract Plant according to the Buyer’s necessity on the most favourable terms.
第二章 价格 CHAPTER 2 PRICE
2.1 卖方按本合同第一条第1.2款和1.3款规定的服务和供货的总价，包括专利和专有技术许可使用费，共计 欧元；其中：
The total price of the Seller’s services and supply as per Article 1.2 and Article 2.3 of the Contract including license royalty amounts to EURO, of which:
（1）设备和材料费用： 欧元；Equipment and materials: EURO;
(2) 磷炉室钢结构： 欧元；Steel structure for the furnace house: EURO
（3）供两年正常生产的备品备件： 欧元；Spare parts for two-year operation: EURO
（4）设计和技术资料费： 欧元；Design and Technical Documentation: EURO
（5）专利和专有技术许可使用费： 欧元；Patent and knowhow license royalty: EURO
2.2 上述价格为固定价格。The said price is fixed.
The said prices of the Equipment and Materials and Spare Parts are for delivery FOB hamburg, Rotterdam or Kobe.
The said price of the design and Technical Documentation is for delivery CIF Beijing Airport.
The said price of spare parts is to be understood for spare parts necessary for two-year normal operation after Acceptance of the Contact Plant.
第三章 支付条款 CHAPTER 3 T5ERMS OF PAYMENT
The Buyer shall make payment of the amount of EURO as per Chapter 2 of the Contract to the Seller through the Bank of China, Beijing by telegraphic transfer as follows:
3.1 合同总价的 %， 及 欧元，中国银行在收到下列文件后14天内，经审核无误，付给卖方。
%viz. EURO within 14(fourteen) days after the Bank of China has received the following documents and found them in order:
The Seller’s proforma invoice in one original and 2 (two) copies covering the total value of the Contract;
An export license issued by the relevant authorities of the Seller’s country, authorizing them to export the Equipment, Materials Patents, Technical Documentation or a certificate stating that export license is not necessary;
An irrevocable letter of guarantee issued by Bank, Germany (specimen as per Annex Ⅸ to the Contract):
A copy of the Seller’s cable to the Buyer informing that the Seller has obtained the necessary approval from the government authorities;
Sight draft drawn on the Buyer to the Bank of China, Beijing in one original and in one copy.
3.2 合同总价的 %， 即 欧元，中国银行在收到下列文件后20天内，经审核无误，按货物交货的比例付给卖方。
%viz. EURO pro rata shipment within days after the Bank of China has received the following documents and found them in order:
The Seller’s commercial invoice in 4(four) originals covering the value of the delivered Equipment and Materials and the proportional amount for design fee and license royalty;
3(three) full sets of negotiable, clean on board, original ocean Bills of Lading made out to order, blank endorsed, notifying China National Foreign Trade Transportation Corporation at the port of destination;
（3）装箱单一式四份；Packing list in 4(four) copies;
Manufacturer’s quality certificate of the delivered part of the Equipment and Materials;
Sight draft drawn on the Buyer to the Bank of China, Beijing in one original and in one copy.
The templets and spacers shall be paid together with the payment for the first shipment of the Equipment and Material. Penalty, if any, for delayed deliveries shall be calculated as stated in Article 9.6 and may be deducted by the Buyer from the invoice of the next shipment if the Buyer deems in justifiable.
按照4.5 条规定，如在卖方电告备妥装运日30天内，买方船只未能装货，买方应支付80% 发货价值以及按比例的设计资料费和专利使用费的利息，年利为 %。利息自上述备妥日第31天起计算至装运日止。此外，卖方应按4.8 条规定支付仓储和保险费。中国银行在收到按4.8 条规定的发票和文件日后20天内支付利息、仓储费和保险费。
If the vessel is not ready for loading within 30(thirty) days after the date of readiness for shipment as per Article 4.5, the Buyer shall pay interest on 80% (eighty percent) of the shipment value and of the proportional amount of design Technical Documentation fee and license royalty at an annual rate of % ( percent). The interest will be calculated from the 31st day after the date of readiness for shipment up to the date of actual shipment. Furthermore the Buyer shall pay the storage charges and premium as per Article 4.8.The interest, storage charges and premium will be invoiced and have to be paid within 20 (twenty )days after the date the Bank of China receives the invoice and the documents as per Article 4.8.
3.3 合同总价的 %，即 欧元，中国银行在收到下列文件20天内，经审核无误，付给卖方。
%viz. EURO within 20(twenty) days arfter the Bank of China has received the following documents and found them in order.
（1）卖方出具的发票正本一式四份；The Seller’s invoice in 4 (four) originals;
Photostat copy of the acceptance certificate of the Contract Plant signed by both parties;
Sight draft drawn on the Buyer to the Bank of China, Beijing in one original and in one copy;
Liquidated damages, if any, as provided for in Article 9.3 of the Contract may be deducted form the above payment if the Buyer deems it justifiable. In case performance test could not be successfully within period as stipulated in Article 8.9 of the Contract for reasons for which the Seller is not responsible, payment shall be made within 20(twenty) days after the Bank of China has received the Seller’s invoice and sight draft as per Article 3.3.
3.4 合同总价的 欧元，在不早于本合同工厂第一次到达附件Ⅵ规定的质量保证指标的95%以后的12个月，或本合同签署后65个月，根据早到的一个日期计算，中国银行在收到卖方下列单据后20天内，经审核无误，付给卖方。
%viz. EURO within 20 (twenty ) days after the Bank of China has received the Seller’s following documents and found them in order, but not earlier than 12(twelve)months after the date the Contract Plant for the first time has reached 9t5% (ninety-five percent) of guaranteed capacity of the whole Contract Plant ac ordering to the guaranteed quality indices as per Annex Ⅵ to the Contract or 65 (sixty –five) months after the date of signing the Contract, whichever is earlier.
（1）商业发票正本一式四份；Commercial invoice in quadruplicate;
A letter issued by the Seller certifying the expiration of the mechanical guaranteed period, in one original and three copies.
Sight draft drawn on the Buyer to the Bank of China, Beijing in one original and in one copy.
In case the Buyer finds any document incorrect the Buyer is obliged to cable the Seller indicating the incorrect items. The cable shall be sent within 20(twenty )days after the Bank of China has received the Seller’s documents.
Together with the advance payment as per Article 3.1, the Buyer shall submit to the Seller the irrevocable letter of guarantee (specimen as per Annex X to the Conotrat) issued by the Bank of China, Beijing.
The payment shall have been effected when Bank has received the unconditional payment in Deutsche Mark marked with “in favour of the Seller.”
The bank commission and all other expenses which arise in connection with the payment in the Buyer’s country shall be borne by the Buyer and those arising in the Seller’s country shall be for the Seller’s account.
第四章 交货与交货条件 CHAPTER 4 DELIVERY AND TERMS OF DELIVERY
The Seller shall complete the delivery of Equipment and Materials under the Contract from the 19the (nineteenth) month to the 27 th (twenty-seventy) month from the date of signing the Contract in 5 (five )lots. The total value of the above-mentioned deliveries shall be 98% (ninety-eight percent) at least of the total contract price for the Equipment and Materials without spare parts, and the delivery date on which the said proportion so the value has been reached shall be deemed as the date of the last delivery. The remaining part of the Equipment and Materials shall be, according to progress of the construction and erection of the Contract Plant, delivered in one lot at a date to be agreed upon by both representatives at the plant site. From the 14th *fourteenth) month to the 17th (seventeenth ) month after signing the Contract the steel structure of the furnace house shall be delivered in two lots.
The spare parts for two-year operation shall be delivered in one lot in the 32nd (thirty-second) month after signing the Contract.
The templets and spacers (if necessary ) for the Equipment supplied by the Seller shall be delivered in one lot at a date to be agreed upon by both parties at the preliminary design meeting.
The Seller shall deliver the Equipment each in a complete unit with its respective special tools, accessories and easily worn-out spare parts (except those for two-year operation).
The delivery schedules of the Technical Documentation are stipulated in Annex V to the Contract.
A preliminary delivery schedule shall be sent by the Seller to the Buyer at the time of delivering the preliminary design. During the discussion of the preliminary design the percentage of weight and the time of delivery of each lot shall be discussed.
The final delivery schedule shall be sent by the Seller to the Buyer within 16*sixteen) months after signing the Contract. The final delivery schedule for the steel structure of the furnace house shall be sent by the Seller to the Buyer within 11(eleven) months after signing the Contract. This delivery schedule shall be considered as the final basis for the delivery after the confirmation by the Buyer. The final delivery schedule shall cover item numbers, names of Equipment and Materials, quantity, approximate weight brotto and netto, approximate measurement as well as unit prices for all main 3quipment and machinery, and machinery, and for others, such as electric installations, instrumentation, piping materials, group prices.
The date of bill fo lading shall be considered as the actual delivery date of the Equipment and Materials. The Equipment and Materials shall be delivered free on board the vessel nominated by the Buyer at Hamburg, Rotterdam or Kobe, each lot at one port only. The properties and risks of the Equipment and Materials shall be transferred from the seller to the Buyer immediately after its FOB delivery. The date of airway bill or receipt of post office at the Seller’s residence shall be considered as the actual delivery date of the Technical Documentation. The Technical Documentation shall be delivery by the seller CIF Beijing Airport.
Within 24(twenty-four) hours at the latest after sending the Technical documentation the Seller shall inform the Buyer by cable of the date of dispatch, flight number, airway bill number, number of parcels, gross weight and Contract number.
Not later than 45(forty-five)days before the readiness of each shipment, the Seller shall inform the Buyer by cable of the Contract number, the date of readiness for shipment, approximate total gross weight, approximate overall dimensions and item number for each large piece exceeding 20(twenty) metric tons in weight or 12×3×2.7 meters in measurement.
Immediately after dispatching the said cable the Seller shall airmail to the Buyer a detailed list of shipment indicating the names of Equipment and Materials with item numbers, quantity, unit price and total price, approximate gross/net weight of the Equipment and Materials, approximate total volume, approximate total weight, and approximate dimensions of each package, a brief transportation description of the Equipment and Material and a sketch for each large piece exceeding 20 (twenty ) metric tons in weight or 15×3×3 meters in measurement, each in three copies,. The maximum limit of the weight of each inseparable integrated 15×3×3 meters The Seller shall submit to the Buyer 7 (seven) copies of the sketches for those goods exceeding the above-mentioned limits during the design information meeting as stipulated in Article 6.1 and during this meeting the Seller will have to get the confirmation from the Buyer so that the Seller can consider the production of such equipment.
15 (fifteen) days before the arrival of the carrying vessel at port of loading, the Buyer shall advise the Seller by cable of the name of the carrying vessel, expected date of shipment, shipping agent and other information necessary for the shipment. The Seller may choose a forwarding agent to perform FOB delivery.
The Seller shall contact the shipping agent and get the goods ready for shipment accordingly. In case of necessity for substitutions of vessel or alteration to the shipping schedule the Buyer of the shipping agent shall timely advise the Seller to this effect.
In the event of the Seller’s failure in effecting shipment upon the arrival of the Buyer’s vessel according to the shipping schedule at the loading port, all expenses including the dead freight, demurrage and other charges thus incurred shall be for the Seller’s account. After the Seller receives the relative documents issued by the shipping company, the Seller shall pay to the Buyer within 20(twenty) days.
If the Buyer’s vessel fails to arrive at the loading port within 30(thirty) days after the date which has been stated in the cable as per Article 4.5 as date of readiness for shipment, the storage charges and premium incurred within the period shall be borne by the Seller, by the storage charges and premium incurred form the 31st day shall be borne by the Buyer and paid within 20(twenty )days after presentation of a copy of warehouse receipt, and an original invoice of the warehouse and insurance company signed by the warehouse and insurance company respectively.
However, the Seller shall be still responsible for their own expense and risk to load the Equipment and materials on board the carrying vessel immediately after her arrival at the loading port according to the Buyer’s instructions.
Within 48(forty-eight) hours after the completion of each shipment the Seller shall inform the Buyer by cable of the date and number of bill of lading, name of the carrying vessel, total weight, total number of cases and contract number.
The Seller shall submit along with the carrying vessel to the Foreign Trade Transportation Corporation at the port of destination the following documents each in one copy.
（1）提单；Bill of Lading;
Furthermore the Seller shall send to the Buyer by airmail within 2(two) weeks after having, on the basis of FOB, delivered the Equipment and Materials, the above documents in 3(three) copies and within 6(six) weeks after FOB delivery inspection and test reports as well as detailed records of the ex-work inspection issued according Article 7.2, each in 3 (three) copies.
Within 3 (three) days after the delivery of the Technical Documentation, for each lot, the Seller shall airmail to the Buyer the following documents;
（1）空运提单副本一份；I(one) copy of the airway bill;
（2）技术资料清单三份。The list of Technical Documentation in 3(three) copies.
第五章 包装和标记 CHAPTER 5 PACKING AND MARKING
The Equipment and Materials shall be carefully and properly packed in the best and stable condition according to the figures and characteristics of the Equipment and Materials so as to withstand long distance sea and inland transportation and numerous handlings, specially due attention shall be paid by the Seller to preventing damage from moisture, rain, rust corrosion and shock according to the different characteristics and requirements in order to ensure their safe arrival at the plant site and to be in store for half a year without rust and corrosion. The Buyer shall handle and store the goods properly according to the requirement given in Article 5.3 and Seller’s storage and transportation instructions. Any Equipment and Materials which are damaged due to the Seller’s fault shall be repaired or replaced by the Seller. The damage due to the Buyer’s fault will be settled by the Buyer at his own expense.
Loose accessories packed in cases and in bales will be labeled by the Seller indicating contract number, name of main machine, name of accessories and its part number on the assembly drawing .Spare parts shall be marked with the words “Spare Parts” besides the above particulars.
The Seller shall mark the following on each package of the four adjacent sides with indelible paint in conspicuous English printing wording:
(1) 合同号；Contract Number;
（3）设备名称及序号；Name of Equipment’s and Item Number;
（4）箱号/件号；Case Number/Bale Number;
（6）目的港；Port of Destination;
（7）毛/净重（公斤）；Gross/Net Weight(in Kg.);
（8）尺寸（长、宽、高以厘米表示）；Measurement (length, wight height in cm.)
（9）重心。Centre of Gravity.
According to the equipments characteristics and different requirements of each 3equipment, the case shall be conspicuously and separately marked with “Handle With Care”, “Right Side Up”:, “Keep Dry”, etc in English language and/ or with appropriate illustrative marks in order to prevent the possible breakage.
Regarding the unpacked goods, metal labels with marks as stipulated above shall be put on each side of it, or marks with indelible paint shall be put on both sides or on both ends of the package.
Each piece, weighing 5 tons or more, shall be marked further with the hosting position in order to facilitate loading discharge and handling.
5.4 每箱货物内附有以下单据：Enclosed in each case shall be the following documents;
（1）装箱单副本一式二份；Two copies of the Packing List;
Two copies of Quality Certificate issued by the manufacturers.
The Technical Documentation delivered by the Seller must be properly and stably packed to stand numerous handling long-distance transportation, moisture and rain. The surface and inside of the package should be marked with the following in English;
Each parcel of Technical Documentation shall enclose a list of detailed contents in two copies.
第六章 设计和设计联络 CHAPTER 6 DESIGN AND DESIGN LIAISON
A design information meeting shall be hold by both parties in China within 6-8 weeks after signing the Contract. Technical problems related to design information, general plot plan of the Contract Plant, preliminary layout sketches of different plants , delivery of oversize equipment according to Article 4.5, etc. will be discussed by both parties during this meeting. Both parties shall make joint efforts to end the meeting and sign a design information meeting protocol within two weeks.
The Seller shall within one and a half months after signing the4 Contract deliver all existing standards and codes of the Seller’s country for the design of the Contract Plant. These documents shall be delivered in English as far as possible, and the rest in German. The Seller shall airmail at his own expense to the Buyer the said standards and codes in 6 (six)copies. The Buyer will put forward their comments upon any of these standards and codes which are not applicable to the actual conditions in China at the preliminary design meeting, and these shall be altered through mutual consultations between both parties.
After signing the Contract and before the delivery of the preliminary design, the Buyer shall have the right to send at his own expense his design liaison personnel to the Seller’s design office to study with the Seller’s technical personnel various technical problems in relation to the Contract, to see into the state of design work and to exchange views on the design with the Seller. The Seller shall also arrange their visits to the Licensor’s Plant similar to the Contract Plant. The purpose of these visits is to give the Buyer’s personnel a detailed understanding of these plants. The Seller shall assist them in arranging their living and working and provide them free of charge with all necessary technical documentation, drawings and office rooms in the Seller’s office.
6.4 本合同签字后第8个月末和第9个月末，卖方按照附件Ⅴ的规定分两批向买方提交土建设计用的初步资料，第9 个月末提交初步设计。卖方将于合同签订后第10个半月自费派遣技术人员到中国，对本款所述资料进行技术解释。初步设计的审批，将在双方共同努力下于上述人员到达中国后一个月内完成，并由双方签订协定书作为最终设计的依据。
The Seller shall submit to the Buyer at the end of the 8th and 9th month after singing the Contract the preliminary information of civil engineering in two lots as specified in Annex V to the Contract and at the end of the 9th month the Preliminary design. Furthermore in the first half of the 11th month after signing the Contract the Seller shall dispatch at his own expense technical personnel to China to give technical explanation of the above-mentioned information. The review and approval of the preliminary design shall be reached through efforts of both parties within one month after the arrival of the Seller’s personnel, and a protocol shall be signed between both parties as the basis for the final design.
Within 14(fourteen) and a half months after signing the Contract, the Buyer shall airmail to the Seller in different lots two sets of preliminary civil engineering design information and drawings. Within the first half of the 17th month after signing the Contract, the Seller shall confirm the civil engineering drawings in different lots presented by the buyer， and submit the final information of civil engineering to the Buyer.
If necessary, the Seller shall send in the 18th month after signing the Contract at his own expense technical personnel to China to discuss the Buyer’s final civil design and if there are revisions regarding to the final information of civil engineering, both parties shall discuss and reach an agreement on the consequences thus incurred in a protocol. The drawings of the Buyer will be sealed and marked “Approved by both parties” and stamped with actual date.
The final design documentation as specified in Article 5.5 of Annex V to the Contract shall be delivered by the Seller in 3(three) lots within the 17th -20th month after the signing of the Contract; and the remaining part of the Technical Documentation shall be delivered by the Seller in 3(three) lots not later than the end of the 27th month after the signing of the Contract. The Seller shall dispatch at his own expenses his technical personnel to China in the 22nd month after signing the Contract to have a final design meeting to explain and discuss the final design. The Buyer shall be entitled to make proposals for modification, while the Seller shall carry out the modifications on and agreement by both parties. Both parties shall make their efforts to accomplish this work within 23 months after signing the Contract.
The Technical Documentation submitted by the Seller shall meet the requirements for successful erection, mechanical tests, commissioning, normal and sale operation, as well as maintenance,. Should any deficiency or error be found, the Seller shall make corresponding corrections of, improvements on or supplements to the Technical documentation without any delay, and this shall not affect the progress of the construction of the Contract Plant. Should the Technical Documentation be lost or damaged during transportation, the Seller shall supply them free of charge within 30 (thirty) days after receiving the Buyer’s notification.
All Technical Documentation submitted by the Seller shall be written in English in 6(six) copies by t in 9(nine) copies for drawings and 2(two) reproducible copies. All dimensions and standards shall be in metric system.
The Seller shall not, in any form, reveal to a third party the design basis and supplementary ones submitted by the Buyer according to the stipulations of Annex I to the Contract, unless it is necessary for the Seller to submit to his proper authorities and subcontractor the relevant data required for the execution of the Contract.
第七章 标准、检验和试验 CHAPTER 7 STANDARDS, INSPECTION AND TEST
The Buyer agree that the Seller will carry out the design, selection of material, manufacturing, inspection and test of the Equipment and Materials supplied byt he Seller according to the exiting standards and codes of the Seller’s country. Within one and a half months after signing the contract the Seller shall airmail at his own expense to the Buyer the said standards and codes in six copies. These documents shall be delivered in English as far as possible and the rest in German. The standards and codes shall be with indication of item numbers of the Equipment and Materials. The Buyer shall put forward his comments with reference to the submitted standards and codes during the preliminary design meeting and the final agreement reached between both parties through discussion shall be regarded as the basis for the inspection and test of the Equipment and Material.
All the Equipment and Materials supplied by the Seller shall be inspected by the Seller and quality certificates and inspection and text records shall be issued by the manufacturers or the Seller. Theses documents shall be delivered to the Buyer as certificates of quality guarantee in accordance with the Contract. All expenses involved in the inspection and text of the Equipment and Materials shall be for the Seller’s account.
The Buyer shall be entitled to send his inspectors at his own expense to the Seller’s country to join the Seller’s representatives in the quality inspection and text of the Equipment and Materials in the manufacturers Workshops. The Equipment to be jointly inspected shall be fixed between both parties at the preliminary design meeting. The Seller shall notify the Buyer of the date of the inspection and test two months prior to the assemble and readiness of the first main equipment; The Buyer shall within one month after receiving the Seller’s notice inform the Seller of the list of his appointed inspectors so as to enable the Seller to render assistance in obtaining their visa. In case the Buyer’s inspectors are not present in time when the Equipment and Materials are ready for inspection and text after receiving the Seller’s notice, the Seller shall have the right to carry out the inspection and test independently. When necessary, the Buyer’s inspectors also have the right to join the Seller in the inspection and test lf equipment and materials other than the main ones.
The Seller shall provided free of charge Buyer’s inspectors with working facilities, all necessary technical documentation, drawings, test rooms, instruments and tools for their inspection and test work. The Buyer’s inspectors have the right to put forward their opinions for improvement, if they find that the Equipment and Materials do not comply with the quality standards and codes stipulated in Articles 7.1 and 9.1 of the Contract. The Seller shall give full consideration to the opinions of the Buyer’s inspectors and make every endeavour to assure the quality of the Equipment and Material.
The quality inspection and test jointly conducted by the Buyer’s and the Seller’s inspectors before delivery shall not substitute the inspection and text at the plant site.
All the Equipment and Materials supplied by the Seller shall be inspected and checked at the plant site and when necessary, tests stipulated in Article 7.1 shall also be carried out. The Seller shall be entitled to send his own inspectors at his won expense to the plant site to take part in the inspection, check and test. The Seller shall notify the Buyer two months prior to each shipment whether his inspectors will join in the inspection of the shipment. The Buyer after receiving the notice shall inform the Seller of the date of inspection at least 20 days before the date of open-package inspection and shall also render convenience to the Seller’s inspectors in their inspection work.
Such inspection shall be performed according to the requirements of the erection of the Equipment and Materials at the plant site and shall be mutually agreed upon by the representatives of both parties at the plant site.
Should any shortage, missing, damage or cases which are not in conformity with the quality standards stipulated in Articles 7.q and 9.1 of the Contract be found of the delivered Equipment and Materials during the open-package inspection, check and test in the presence of the representatives of both parties, a detailed record shall be made and signed by them. This record shall be taken as an effective evidence for the Buyer to claim replacement(s), repair or supplement from the Seller, in case the Seller is responsible.
If owing to the Seller’s reason the seller will not be able to take part in the inspection, check and test, or owing to the late coming of the Seller’s inspectors, after receiving the Buyer’s notice, the Buyer shall have the right to open the package and conduct the inspection and test independently. Should any shortage, missing, damage or cases which are not in conformity with the quality standards provided for in Articles 7.1 and 9.1 of the Contract be found, a certificate shall be issued by China Commodity Inspection Bureau as an effective evidence for the Buyer to claim replacement(s),l repair or supplement fro, the Seller, in case the Seller is responsible.
CHAPTER 8 ERECTION, MECHANICAL TESTS, COMMISSIONING, PERFORMANCE TEST AND ACCEPTANCE OF THE CONTRACT PLANT
”Erection Tests” refers to running of a singles or a series of machines and equipment with electricity, nitrogen, water, air or other media if necessary.
“commissioning” refers to the running of the Contract Plant with raw materials, chemicals and utilities in order to produce yellow phosphorus and sodium triployphosphate.
“Performance Test” refers to the tests for fulfilling the guarantee indices.
“Acceptance “refers to the acceptance of the Contract Plant by the Buyer.
The Erection, Mechanical Tests, Commissioning and Performance Test shall be carried out under the leadership of the Buyer and the technical instructions of the Seller. Detailed organization and arrangement shall be discussed and fixed at the plant site by the personnel of both parties so as to shorten the time for Erection and Mechanical Tests (Estimated erection time is 17 months，) and to complete the construction of the Contract Plant within 40(forty ) months after signing the Contract.
Before the erection work is started, the Seller’s technical personnel shall review the civil work and give detailed description of the methods and requirements of the Erection, and during the Erection they shall give technical instructions and assistance so as to complete the Erection satisfactorily.
During the Erection the Seller’s technical personnel shall take part in the inspection and test of Erection quality of all the Equipment. Each party shall authorize one representative to deal with all technical matters in connection with the Contract Plant during the period from Erection up to the Acceptance of the Contract Plant. Should any difference arise between the representatives of both parties, it shall be settled through friendly negotiations. In case no settlement can be reached, it shall be reported to the higher authorities of both parties for settlement.
After the accomplishment of the Erection, the representatives of both parties shall conduct inspection together and carry out Mechanical Tests when they think the work is done fully in conformity with the requirements of the technical Documentation.
If the Erection has been finished and the Mechanical Tests successfully performed and the construction is found fully in conformity with the requirements of the Technical Documentation, a certificate for the completion of the Erection shall be signed by the representatives of both parties at the4 plant site,. The date of signing this certificate shall be deemed as the date of the completion fo the Erection and Mechanical Tests of the Contract Plant. But this certificate shall not set free the Seller from his responsibility specified in Chapter 9 of the Contract for the defect of the Equipment and Materials found during the period of Commissioning and Performance Test.
After the Mechanical Tests stipulated in Article 8.4 of this Chapter are completed , the commissioning shall be carried out. The date of starting Commissioning shall follow immediately after the completion of the Erection and Mechanical Tests. This date shall be fixed by both parties.
Before the4 commissioning, detailed procedures of the Commissioning and Performance Test such as instrument calibrating, items of recording, sampling methods and analyzing methods which are necessary for the Commissioning and Performance Test, shall be submitted by the Seller and discussed and agreed upon by the representatives of both parties. Before the Commissioning, the ?Buyer shall make available the personnel for operation, maintenance and testing and all raw material, chemical, power and other utilities in the required quantity and quality as per Annex I to the Contract.
The Commissioning period shall be 5(five) months and according to the progress of the Commissioning, the date of the Performance Test shall be fixed by both parties. The Seller notify the buyer in advance of the date on which the Performance Test will be carried out and both parties shall make their best efforts to realize that date.
The Performance Test shall be carried out under the instructions of the Seller’s technical personnel in order to prove the guaranteed indices specified in Annex Ⅵ to the Contract. The guaranteed indices comprise those of production capacity, quality consumption of raw materials and utilities and P2O5 content in the furnace slag. The period of the Performance Test of the Contract Plant shall be 3(three) consecutive days (72 hours) of normal operation without interruption as defined in Annex Ⅵ to the Contact. During the Performance Test period, all the guaranteed indices shall be reached as specified in Annex Ⅵ to the Contract.
The results of each Performance Test shall be recorded in a protocol and signed by the representatives of both parties within two days after the completion of the Performance Test. In the event the first Performance Test has not been successfully carried out due to Seller’s fault, the Seller shall make necessary modification to the Equipment and Materials or design as soon as possible within the time limit agreed upon by both parties. After making the modification, the Performance Test shall be carried out again in accordance with Article 8.6 of this Chapter. If it is necessary to make any of the above-mentioned modifications at the plant site, the Buyer shall make his best endeavours to give his assistance when requested by the Seller,. However, all cost for performing the modifications or corrections shall be borne by the Sheller. Should it be necessary to send back to Germany any equipment for repair or replacement, all transport cost and cost of repairing or replacement shall be borne by the Seller. The replacement or repaired equipment shall be delivered by the Seller at the Chinese seaport designated by the Buyer.
If all the guaranteed indices stipulated in AnnexⅥ to the Contract are fulfilled in the Performance Test period specified in Article 8.6 of the Contract, a certificate of acceptance of the Contract Plant shall be signed by the representatives of both parties within five days in four copies for each party. This shall be deemed as the Acceptance of the Contract Plant by the Buyer.
If the guaranteed indices stipulated in AnnexⅥ to the Contract are not fulfilled partly or wholly within 5(five) months for Commissioning specified in Article 8.5 of this Chapter, both parties shall jointly make investigations to find out the reason, to clarity the responsibility and to settle it as follows:
If due to the Seller’s reason the guaranteed indices are not fulfilled，the Buyer shall agree to an extension of 7(seven)months of Commissioning to make corrections and have further Performance Tests. Should the Performance Tests still fail again within these 7(seven) months. Article 9.3 of the Contract shall be applied. During the extra period of 7(seven) months the expenses for the Seller’s technical personnel, which is daily remuneration, shall be borne by the Seller himself.
If the non-fulfillment of the guaranteed indices is due to the Buyer’s reason, the Commissioning period shall be extended for 7(seven) months. During this period all the expenses of the Seller’s technical personnel shall be for the Buyer’s account. The number of the Seller’s personnel shall be discussed and fixed by both parties. In case the guaranteed indices still cannot be reached due to the Buyer’s fault within the period of this further 7(seven) months of Commissioning, the Contract Plant shall be accepted by the Buyer and an Acceptance certificate shall be signed by both partied at the end of the above-mentioned 7(seven) months.
If 4（four）different Performance Tests are interrupted for reasons for which the Seller is not responsible, the representatives of both parties at the plant site shall discuss the matter and determine some further stops to be taken.
In case on successful Performance Test can be done up to 26(twenty-six) months after the last delivery as stipulated in Article 4.1 for reasons for which the Seller is not responsible, the Contract Plant shall be regarded as accepted by the Buyer. If, however, the vessel for the last delivery is delayed owing to the Buyer’s decision, the above period of 26（twenty-six） months shall be calculated from the date the last delivery is ready for shipment.
The Acceptance of the Contract Plant stipulated in a Articles 8.7，8.8 and 8.9 of the Contract shall not set free the Seller from his responsibility for the Equipment and Materials of the ?Contract Plant during the mechanical guaranteed period.
第九章 保证和罚款 CHAPTER 9 GUARANTEE AND PENALTY
The Seller guarantees that the Contract Plant possesses the most up-to-date and well proven technology of the licenser’s relevant plants available at the date the Contact is signed, that Equipment and Materials are of the best quality in the Seller’s country and that the Equipment supplied complete with the requirements of process technology and long-term operation. The Seller shall supply complete and correct Technical Documentation in order to carry out successfully the Erection, Mechanical Tests, 、commissioning， Performance Test， normal and safe operation and maintenance of the Contract Plant.
The damages occurred in the course of construction, Erection, Mechanical Tests, Commissioning and Performance Test of the Contract Plant, due to mistakes of the Seller’s Technical Documentation or due to incorrect instructions of the Seller’s technical personnel shall be remedied at the Seller’s own expense in such a way that the Equipment and Materials will be corrected, repaired, replaced or completed, whichever necessary.
In case any of the Buyer’s personnel is seriously injured or loses his life during the Erection, Mechanical Tests, Commissioning and Performance Test due to faulty instructions of the Seller’s personnel, the Seller shall bear the responsibility. As to these accidents, the problem should be solved through discussion between both parties.
In case defects of the Equipment and Materials have been found during Erection, Mechanical Tests, Commissioning and Performance Test, the defects will be checked by both parties. If the Seller is accountable for the defects then the Seller shall correct or repair them or replace the defective equipment or material at his own expense. If the Buyer is responsible for the defects, then the Seller will help to remove in and if it is necessary to replace the defective equipment or material, the Buyer shall be responsible for the expense.
In case the Seller is responsible to remove the defects the Buyer shall supply to the Seller on his request necessary personnel, erection tools, cranes, etc., for performing the removal of the defects. The cost thus incurred shall be borne by the Seller. The removal of defects shall be performed as quickly as possible and the Seller shall do his best not to affect the progress of the construction of the Contract Plant.
9.3 罚款的计算 Penalty Calculation
Under the technical conditions of normal operation of the Contract Plant according to the Seller; s documentation, the Seller guarantees that capacity, quality, consumption of raw materials and utilities and P2O5 content in the furnace slag shall reach the indices stipulated in Annex Ⅵ to the Contract. If the specified indices can not be reached during the Performance Test in accordance with Article 8.8 of the Contract due to the reasons of the Seller, the following shall apply:
If the production capacity is lower than 95%(ninety-five percent) of the guaranteed capacity, the Seller shall improve the Contract Plant at his own expense until it reaches at least 95%(ninety –five percent ) of the guaranteed capacity and when it is lower than 100% but over 95%, the Seller shall have the choice either to improve the /Contract Plant at his own expense until it reaches 100% or indemnify the Buyer, for every 1% lower , by % of the total Contract Price (80% contract price of phosphorus and 20% contract price of sodium tripolyphosphate).
If the quality of the product cannot reach the guaranteed indices, the Seller shall take every measure to reach the indices within 12 months at the Seller’s own expense. However, if the guaranteed indices still cannot be reached at the conclusion of the aforesaid period, the Seller shall pay to the Buyer a penalty, of % out of 80% of the Contract Price in the case of phosphorus and % out of 20% of the Contract Price in case of sodium tripolyphosohate.
If the consumption indices of raw materials and utilities cannot reach the guaranteed indices, the penalty shall be the value of surplus consumption of one year production, but compensation in monetary value between over-consumption and under-consumption of raw materials and utilities are allowed. However, the consumption of electric phosphorus furnace power can not be compensated by under-consumption of other utilities. For the calculation of the penalty and the reimbursement, the following prices shall be applied:
If the P2O5 content in the furnace slag cannot reach the guaranteed index, the Seller shall take every measure to reach the incex within 12 months at his own expense. However, if the guaranteed index still cannot be reached at the conclusion of the aforesaid period, the Seller shall pay to the Buyer a penalty of EURO .
Mechanical guarantee for the Equipment and Materials supplied by the Seller, except consumable materials in normal consumption:
Provided that operation and maintenance of the Equipment and Materials of the Contract Plant are done according to the Seller’s Technical Documentation, the guaranteed period shall be 12 months from the date on which for the first time the Contract Plant has reached 95% of the guaranteed capacity indices according to the guaranteed quality indices as per Annex Ⅵ to the Contract or 65 months after the date of signing the Contract, whichever id earlier. The guaranteed period for the repaired parts of replacement of the Equipment and Materials shall run for 12 months from the date of their being put into production or after they arrive at the Chinese seaport assigned by the Buyer or Beijing Airport, if necessary. Due to the Seller’s negligence, should the installed equipment in part or in whole cease functioning or require repair or replacement, then the guaranteed period shall be extended correspondingly, provided such stoppage exceeds 14 days. The Buyer is obliged to notify the Seller immediately by cable of the newly arising circumstances which may result in an extension of the guaranteed period. If the Buyer fails to give such notice, he shll have no right to claim an extension of the guaranteed period. The Buyer shall notify the Seller immediately by cable of any defect of the Equipment and Materials during the mechanical guarantee period, and the Seller shall without delay cable the Buyer whether he will send personnel to the plant site for investigation or the Buyer will entrust the China Commodity Inspection Bureau to investigate the causes of the defect.
If it can be proved that the Seller is responsible for the defect, the Seller shall bear thte cost for dispatching personnel to the plant site for investigation. During the above-mentioned guaranteed period if any defect is found in the Equipment and Materials involving the responsibility of the Seller, the Seller shall at his own cost repair or replace the defective parts of the Equipment and Materials within the period agreed upon by both parties. The replacements of the equipment and Materials shall be delivered CIF. Chinese port assigned by the Buyer. If any such defect still remains after repair or replacement, both parties will discuss the matter for settlement.
With regard to minor defects of the Equipment and Materials for which the Seller is responsible, the Buyer may arrange for repair or replacement at the Seller’s expense with the consent of both parties.
On request of the Seller, the Buyer shall put the replaced parts of the Equipment and Materials at the Seller’s disposal. The Buyer shall assist the Seller in Getting the necessary approval for re-exportation from China.
9.6 迟期交货 Delay in delivery
在1至8周内，每延期一周，罚款为迟交设备和材料价款的 %；若超过8周，每延期一周罚款为迟交设备和材料价款的 %。
If owing to the responsibility of the Seller, the Equipment and Materials have not been delivered according to the final delivery schedule mentioned in Chapter 4 of the Contract, the Seller shall pay to the Buyer a penalty for such delay in delivery at the following rates:
For each of the first eight weeks, % of the valve of the equipment and materials delayed;
For each week thereafter, % of the valve of the equipment and materials delayed;
For thte delayed items, the Buyer will make an effort to ensure that shipment can be effected with the first vessel going to China after the readiness for shipment.
The Seller shall have to deliver the Technical Documentation on the schedule in order to ensure that the construction schedule of the Contract Plant will not be affected.
The payment of the penalty as per Article 9.6 shall not release the Seller from his obligations of delivery. By paying penalties in a way as stated in Chapter 9 the Seller is free from any further claims by the Buyer on account of non-fulfillment of the guaranteed indices found during Performance Test or for delay in delivery.
The Seller shall inform the Buyer as soon as possible of the possibility of any delay in delivery of Equipment and Materials and of Technical Documentation, possible length of time to be delayed and the measures being taken to expedite the delivery. When the length of delay in delivery due to the responsibility of the Seller is over 6 months, the Buyer shall have the right to cancel the Contract wholly or partially provided no agreement can be reached through negotiation between both parties.
Claims by the Buyer shall be still effective when they are sent by cable within 30 days after the expiration of the mechanical guaranteed period.
The total sum of penalty as provided for in Articles 9.3 and 9.6 shall not exceed % of the total Contract price as per Chapter 2 of the Contract.
The Seller shall not be liable for any indirect or any other losses occurred not related to the Contract Plant, e.g. loss of production.
第十章 专利和专有技术许可使用 PATENT AND KNOWHOW LICENSE
The Seller hereby grats the Buyer the non-exclusive license to use in China the following process technology of a 54,000 KW phosphorus electric furnace with a capacity of 30,000 metric tons/ year of yellow phosphorus and 70,000 metric ton/year of sodium tripolyspate:
以磷矿石烧结磷酸盐； production of sinterphosphate from phosphate rock;
production of elemental yellow phosphorus by reduction of sinterphosphate;
Production of phosphoric acid by combustion of elemental yellow phosphorus and hydration of the phosphorus pentoxide;
废水处理。Waste water treatment.
All the above processes together are called “process” in the Contract.
Within one and a half months after signing the Contract the Seller shall submit to the Buyer Photostat copies of the certificates of all the patents pertaining to the above-mentioned processes which are issued by the competent authorities of Germany.
Should any dispute arise in China from any third party due to use of the Process by the Buyer, the Seller or the Buyer shall handle the matter. Should any dispute arise outside China from any third party due to use of the Process by the Buyer, the Seller shall handle the matter.
The Seller shall inform the Buyer of improvement and new information of the Process up to the Acceptance of the Contract Plant.
Within 12 years after signing the Contract the Buyer shall not disclose in whole or in part the knowhow, Technical Documentation and other information of the Process
The Patent, knowhow, Technical Documentation and other information are to be used only for the construction, operation and maintenance of the Contract Plant.
10.7 本合同取消或提前终止，均不影响履行10.5和10.6 条规定的义务。
The obligations contained in Articles 10;5 and 10;y6shall neither be affected by the liquidation of the Contract nor by a premature termination of the same.
第十一章 不可抗力 CHAPTER 11 FORCE MAJEURE
Should any case of force majeure happen such as fire, war, earthquake, typhoon (windstorm), floods during the term of the Contract, it shall be settled through negotiation between both parties.
Should any such case happen, the party concerned shall inform the other party by telegram within one week and airmail a certificate issued by China Council for the Promotion of International Trade in China or a competent Chamber of Commerce in Germany within 3 weeks following the occurrence of the event of force majeure.
The party concerned shall not be held responsible for any delay or failure in performing any or all of the obligations due to the event of the force majeure. However the party shall have to proceed with his obligations immediately after the date the event of force majeure had ceased or the effects have been removed and the term of the Contract shall be extended correspondingly.
In case the duration of force majeure event exceeds 6 months, both parties shall discuss the4 problem of how to fulfill the Contract. If no agreement can be reached, the case should be settled by arbitration according to the provisions of Chapter 12.
第十二章 仲裁 CHAPTER 12 ARBITRATION
Should there be any disputes between the parties in connection with the Contract, they should be settled amicably. In case no agreement can be reached, the matter in dispute shall be finally decided by arbitration.
The arbitration shall take place in Stockholm, Sweden and it shall be performed in accordance with Swedish arbitration procedure.
第十三章 税费 CHAPTER 13 DUTIES AND TAXES
All taxes, customs duties and all other dues arising in the country of the Seller in connection with the conclusion and performance of the Contract shall be borne by the Seller.
Taxes, customs duties and all other dues arising in the country of the Buyer in connection with the conclusion and performance of the Contract shall be paid according to the relevant tax laws of the People’s Republic of China.
第十四章 有效期 CHAPTER 14
EFFECTIVENESS OF THE CONTRACT AND THE MISCELLANEOUS
The rights and obligation of both parties to the Contract shall be effective immediately after the Contract is signed by both parties. However, if the Contract has to be approved by their governments, each party shall confirm to the other by cable within 45 days after signing the Contract that all necessary approvals are obtained from their respective government authorities.
All prior oral and written statements, documents, letters and the like between the parties shall become null and void after the signing of the Contract.
The Contract is made out in four originals in English language, two originals are for the Buyer and two for the Seller.
All amendments and/or complements and/or alterations shall be made in writing and signed by the authorized representatives of both parties, after which they shall become integral parts of the Contract.
Annexes and Drawings of the Contract are integral parts of the Contract.
Both parties agree that no assignment or transfer of any right or obligation under the Contract shall be made by one party to a third party without the prior written consent of the other party.
All correspondences between both parties for the execution of the Contract shall be in English in three copies.
Each party shall assist the other to obtain entry and exit visa and personnel accommodation in their respective countries for visits in connection with the Contract.
Copies of original certificates, protocols or minutes of meetings, ect, established during the execution of the Contract5 shall be handed over to both parties immediately after mutual signature.
买方 （签字）： 卖方（签字）：
The Buyer: (Signature) The Seller: (Signature)