1.GUARANTEE OF MATERIAL AND WORKMANSHIP 材料和工艺的保证
1.GUARANTEE OF MATERIAL AND WORKMANSHIP 材料和工艺的保证
The SELLER, for a period of twelve (12) months from the Delivery Date, guarantees the VESSEL, her hull and machinery and all parts and equipment thereof that are manufactured or furnished or supplied by the SELLER and /or its subcontractors under this Contract including material and equipment (excluding any parts for the VESSEL which have been supplied by or on behalf of the BUYER) against all defects which are due to defective materials and /or poor workmanship and/or faulty design and/or constructional miscalculation.
Any additional guarantee period in excess of twelve (12) months offered by any manufacturer and/or SELLER’s subcontractors shall be automatically passed on to the BUYER, for which the SELLER shall arrange an agreement pass such additional guarantee to BUYER
2.NOTICE OF DEFECTS 缺陷的通知
The BUYER shall notify the SELLER in writing or by telefax (confirmed in writing), as promptly as possible, after discovery of any defect or deviations for which a claim is made under this guarantee. The BUYER's written notice shall describe the nature of the defect and the extent of the damage caused thereby. The SELLER shall have no obligation under this guarantee for any defects discovered prior to the expiry date of the guarantee, unless notice of such defects, is received by the SELLER not later than thirty (30) days after such expiry date. Telefaxed advice within thirty (30) days after such expiry date with brief details explaining the nature of such defect and extent of damage and stating that a claim is forthcoming will be sufficient compliance with the requirements as to time. If the BUILDER becomes aware of defective materials or a serious defect in the design or construction of the VESSEL or any other vessel built by the BUILDER, the BUILDER shall immediately notify the BUYER in writing and by telefax.
3.REMEDY OF DEFECTS 缺陷的修复
The SELLER shall remedy at its expense any defects, against which the VESSEL or any part of the equipment thereof is guaranteed under this Article by making all necessary repairs and/or replacement. Such repairs and/or replacement will be made by the SELLER.
However, if it is impractical to make the repair by the SELLER, and if forwarding by the SELLER of replacement parts, and materials can not be accomplished without impairing or delaying the operation or working of the VESSEL, then, in any such event, the BUYER shall, cause the necessary repairs or replacements to be made elsewhere at the discretion of the BUYER provided that the BUYER shall first and in all events, as soon as possible, give the SELLER notice in writing, or by telefax (confirmed in writing) of the time and place such repairs will be made and, the SELLER shall have the right to make attendance and verification, without unreasonably impairing or delaying vessel’s operational commitments or works, by its own representative(s) or that of Classification Society of the nature and extent of the defects complained of. The SELLER shall, in such cases, promptly advise the BUYER, by telefax, after such examination has been completed, of its acceptance or rejection of the defects as ones that are subject to the guarantee herein provided. In all minor cases, the Guarantee Engineer, under clause 5 of this Article shall act for and on behalf of the SELLER.
In any circumstances set out below, the SELLER shall immediately pay to the BUYER in United States Dollars by telegraphic transfer the actual cost for such repairs or replacements including forwarding charges, or at the average cost of making similar repairs or replacements including forwarding charges as quoted by two leading shipyards (one choose by SELLER and another one choose by BUYER) in each of Japan, South Korea, P. R. of China.
(a) upon the SELLER's acceptance of the defects as justifying remedy under this Article, or
(b) if the SELLER neither accepts nor rejects the defects, nor requests arbitration within thirty (30) days after its receipt of the BUYER's notice of defects.
(c) upon determination in an arbitration process in accordance with Article XIII that the defect(s) in question fall within the provisions of this Article IX.
In the event that it is necessary for the BUILDER to forward a replacement for a defective part under this guarantee, replacement parts shall be supplied to the BUYER by ocean-freight on a freight prepaid basis to the port of place designated by the BUYER. Air freight will be applicable in case seafreight can not meet ship’s schedule provided that the BUYER already notified such schedule to the BUILDER in advance at least two weeks. For any parts and/or workmanship repaired or replaced under this clause, the BUILDER shall give for such replaced or repaired parts and/or workmanship a guarantee of a further period of twelve (12) months, however, the aggregate guaranteed period shall not exceed eighteen (18) months.
It is understood that the BUYER has right to arrange relevant repair/replacement by themselves at a reasonable cost (to be SELLER’s account) mutually agreed by both parties provided that the same defect appeared twice or more during such guaranteed period (18 months), however, the BUYER should give the notice to the BUILDER in advance, in such case, the BUILDER shall have no obligation and/or liabilities with respect to the same defect appeared thereafter
4.EXTENT OF THE SELLER'S LIABILITY 卖方的责任范围
The SELLER shall have no obligation and/or liabilities with respect to defects discovered after the expiration of the period of guarantee specified above.
The SELLER shall be liable to the BUYER for defects and damages caused by any of the defects specified in clause 1 of this Article provided that such liability of the SELLER shall be limited to damage occasioned within the guarantee period specified in clause 1 of this Article. The SELLER shall not be obligated to repair, or to be liable for, damages to the VESSEL, or to any part of the equipment thereof, due to ordinary wear and tear or caused by the defects other than those specified in clause 1 of this Article, nor shall there be any SELLER's liability hereunder for defects in the VESSEL, or any part of the equipment thereof, caused by fire or accidents at sea or elsewhere, or mismanagement, misoperation, accidents, negligence, or wilful neglect, on the part of the BUYER, its employees or agents including the VESSEL's officers, crew and passengers, or any persons on or doing work on the VESSEL other than the SELLER, its employees, agents or sub contractors. Likewise, the SELLER shall not be liable for defects in the VESSEL, or the equipment or any part thereof, due to repairs or replacement which were not made by the SELLER and/or their subcontractors or with prior consent of the SELLER.
Upon delivery and acceptance of the VESSEL in accordance with the terms of this Contract, the SELLER shall thereby and thereupon be immediately released of all responsibility and liability whatsoever and howsoever arising under or by virtue of this Contract (save in respect of those obligations to the BUYER expressly provided for in this Article IX) including without limitation, any responsibility or liability for defective workmanship, materials or equipment, design or in respect of any other defects whatsoever and any loss or damage resulting from any act, omission or default of the SELLER. The SELLER shall not, in any circumstances, be liable for any consequential loss or special loss, or expenses arising from any cause whatsoever including, without limitation, loss of time, loss of profit or earnings or demurrage directly from any commitments of the BUYER in connection with the VESSEL.
The Guarantee provided in this Article and the obligations and the liabilities of the SELLER hereunder are exclusive and in lieu of and the BUYER hereby waives all other remedies, warranties, guarantees or liabilities, express or implied, arising by Law or otherwise (including without limitation any obligations of the SELLER with respect to fitness, merchantability and consequential damages) or whether or not occasioned by the SELLER's negligence. This Guarantee shall not be extended, altered or varied except by a written instrument signed by the duly authorized representatives of the SELLER, and the BUYER.
5.GUARANTEE ENGINEER 保修工程师
The BUILDER may appoint one or two Guarantee Engineer(s) to serve the VESSEL as the BUILDER's representative(s) for a period to be mutually agreed, but maximum twelve (12) months from the delivery of the VESSEL subject to the BUYER’s approval. The BUYER, and its employees, shall give such Guarantee Engineer(s) full co operation in carrying out his/their duties as the representative(s) of the BUILDER on board the VESSEL. The BUYER shall accord the Guarantee Engineer(s) the treatment comparable to the VESSEL's Chief Engineer, and shall provide him with accommodation and subsistence at no cost to the BUILDER and/or the Guarantee Engineer(s).
The BUYER shall pay to the Guarantee Engineer(s) the sum of United States Dollars Three Thousand Five Hundred only (US$ 3,500.00) per month per person to cover his/their miscellaneous expenses including wages and also the BUYER shall pay the expense of repatriation to Beijing, the People's Republic of China by air upon termination of his/their service, the expense of his/their communications with the BUILDER when made in performance of his/their duties as the Guarantee Engineer(s) and the expenses, if any, of his/their medical and hospital care. The BUYER, its successor(s) and/or assign(s), shall be liable to and indemnify the BUILDER and/or the Guarantee Engineer(s) and/or the SELLER for personal injuries, including death and damages to, or loss or destruction of property of the Guarantee Engineer(s), if such death, injuries, damages, loss and/or destruction were caused by gross negligence or willful misconduct of the BUYER, its successor(s) and/or assign(s) or its employees and/or agents.
Pertaining to the detailed particulars of this Paragraph, an agreement will be made according to this effect between the parties hereto upon delivery of the VESSEL.
买方应每月向保修工程师支付 3,500美元（US$3,500 ）作为各项开支，其中包括工资。买方还应承担在服务期满后飞返中国的旅费及保修工程师在履行其职责时与卖方面通讯联系的费用以及（如有）其医药费和住院护理费。买方及其继承人和/或指定人有责任向卖方和/或保修工程师和/或卖方赔偿保修工程师的个人伤害，包括死亡、或保修工程师财产的破坏、损失或缺损，如果该死亡、伤害、损失和/或缺损是由于买方，其继承人和/或指定人或其雇员和/或代理人的重大疏忽或故意失误造成的。