Escolar Documentos
Profissional Documentos
Cultura Documentos
lein this 6
International
Trade Contracts
6th Edition
y xin
Preface
This book is intended to provide commerce students of international
trade and other readers with guidelines to the language of international
trade contracts as the name of the book suggests.
Despite the difficulty and complexity of the subject matter, the language
used in the book is straightforward and readily understood.
The book contains 11 parts. The first eights parts deal with legal aspects
and give examples of authentic language used to illustrate them. At the
end of each part, there are comprehension questions so that the students
can check their understanding. In the footnote from Part 1 to Part 8, four
or five words and/or expressions are listed with their context meanings
in Vietnamese.
Part 10 gives examples of authentic contracts from various Vietnamese
and foreign trading corporations. All of these contracts are bilingual:
English and Vietnamese. Part 11 includes the ICC Model Sale contract
and the remarks made on each individual provision in the light of the
civil code of the SRVN regarding civil contracts.
Although every effort has been made to ensure the reliability of the
information in the book, for readers of the book, the author is not
responsible for any losses resulting from using this book or specimen
contract clauses taken from therein. Before signing a contract, business
persons should take appropriate legal advice.
As mentioned the subject matter is very difficult and complicated, errors
and mistakes might have been made here and there in the book.
Constructive suggestions and corrections are, therefore, highly
appreciated.
Acknowledgements
I would like to express my many thanks for Directing Board of the
Foreign Trade University for their help and assistance during the
preparation and production of this book.
I also would like to express my sincere thanks for my colleagues at the
English Department of the Foreign Trade University for their long and
kind co-operation in the making of this book.
I am deeply indebted to my Australian Collegue, Mr. Timothy Maxwell
Clemons for his valuable suggestions, comments, criticism and
correction during the development of this book.
I am also deeply indebted to all Vietnamese and foreign import and
export organizations and commercial services to their assistance and
permission for reproduction of their contracts and documents.
As always I wish to express my special thanks to my wife and my
children for their understanding and encouragement throughout the
preparation of this book.
I would like to thank Mr. Nguyen Van Chau, BMA, Researcher, at the
Foreign Trade University for his deligence shown in proofreading of the
book and for all other things that he has done on my behalf so that the
book would have been made possible for the first edition.
Finally, I also would like to thank all of my friends and former students
for their assistance in providing the contracts and their translation.
Contents
Page
PREFACE
ACKNOWLEDGEMENTS
CONTENTS
BIBLIOGRAPHY
HOW TO WORK WITH THE BOOK
Part 1
Part 2
Part 3
11
11
11
13
17
21
22
25
25
31
33
37
38
43
43
45
47
49
50
2. THE SIGNATURE
3. THE ASSIGNMENT OF RIGHTS AND DUTIES
4. COMPREHENSION QUESTIONS
Part 6
3
4
5
7
9
54
54
55
57
58
61
61
69
72
75
75
76
77
79
80
81
7 - COMPREHENSION QUESTIONS
82
87
87
88
91
93
99
2.
3.
4.
5.
THE OFFER
THE PURCHASE ORDER
ACCEPTANCE OF ORDERS
GENERAL CONDITIONS
ECE GENERAL CONDITIONS
APPLICABILITY
GENERAL NOTE ON NEGOTIATION
COMPREHENSION QUESTIONS
APPENDIX
- CONG 1.fric VIEN 1980
104
104
108
109
109
109
110
110
111
111
114
114
117
122
123
126
129
231
231
241
249
260
273
306
322
334
340
340
354
369
385
385
2 HOP DOING MUA BAN TAI SAN THEO LUAT DAN SVCOA NUOC
428
BIBLIOGRAPHY
Anderson, Ronald A. Business Law. Cincinati: South Western 1980.
Black, H. C. Black's Law Dictionary. 5th ed. St Pault: West. 1979.
Dy, Nguyen Duc, et al. Tt? di en ngoai
thtrong, Ha NOi. 1985.
Dy, Nguyen Dile. Tit dien gidi nghia kinh to kinh doanh, NXB Khoa
hoc va Ky thuat. 1996.
Dam, Nguyen H6ng. Van tdi ngoai thumg. Throng Dai hoc Ngoul
thtrang. 1987.
Dan, Nguyen Trong. Ngorr ngi? hop dong thu'ung mai Anh My. Sinh
hoat khoa hoc trubng Dal. hoc Ngoai thtrong. 1993.
Dan, Nguyen Trong. Cau, menh de va ngi? trong hop eking thuzing
mai quae re'. Ky y6u HOi nghi Khoa hoc 1c'T ni4rn 30 nam Vien ngOn ngir
hoc V* Nam. 1993.
Dan, Nguyen Trong. The language of business correspondence in
English. NXB Gido duc. Ha NO. 1992.
Groner, Sammel B. Modern Business Law. Reston. 1983
Mc (Draw Hill - 1992. Gifis, Steven H. Law Dictionary, Third Ed.
New York, 1992.
Nguyen Th6 et al. Ter dien Phap luat Anh Viet. NXB KHXH.
1992.
Federation Internationale des Ingenieurs (FIDIC): Conditions of
Contract 1987
-
de phap li trong
Prodec.
Bo
lugt Dan su' dia nu& Cong hoa xar 110i chi nghig Viet Nam.
Vietnam Law & Legal Forum. 1996.
Ludt thumig mai cua niffrc COng hoa xd hgi chi nghra Viet Nam.
1996.
Legal writings on Foreign Investment in Vietnam. SCCI. 1992.
COng uOc Vien 1980
10
Part 1
11
no such provision, they must ask what, if anything, the law obliges them to do.
This raises the most basic question about contracts.
What is the relationship betweenc the contract and the law?
Example
BEC (British Export Co.) is an English company. It makes an offer to supply
the Power Co, (PC) of Vietnam with relays for 2 pounds each.
Under the English Contract Law, the English company has the right to cancel
its offer at any time before PC accepts it. Although BEC has this right, it may
agree with PC not to cancel its offer, say, before Sept. 30. In other words, BEC
can, if it wishes, give up or waive one of its rights under the Law of Contract.
The waivable rights are said to be disposive. Of course, BEC's waiver applies
to the offer it is making to PC only. It keeps its right to cancel offers made to
others.
Reinarks
- This example shows exactly the relationship between the contract and the
law: a contract sets out the rights and duties that apply between the two
parties. A contract sets aside rights and duties that exist under private law
(e.g. BEC's right to cancel its offer) and creates new rights and duties (e.g.
the duty to deliver goods or the right to payment).
- And the public law? The provisions of the public law are never disposive.
For example, public law in Vietnam forbids the use of certain plastics in
the manufature of insulation for cable. Can BEC agree with PC that this
law does not apply to their contracts? Obviously not. Public law is not
disposive - the parties to a contract cannot set it aside.
- The idea of "law" that we have discussed so far is, of course, the traditional
western view. This view stresses that law and morality are close partners:
The purpose of law is to provide order, stability and justice. Thus viewed,
the law consists of relatively fixed rules which regulate conduct according
to the morality of the community. Proper conduct, as determined by the
community, should be allowed or required. Improper conduct should be
prohibited. Law then is a social institution, it is not an end in itself but is an
instrumentality for obtaining social justice (Anderson, 1980 p.17).
contract law: luOt help clong
disposive: co the khutc ter
oblige: bat buiic
12
- Nothing could be further from the traditional eastern view. In the extract
below, the long-standing Korean view of "Law" is presented:
The idea that law is an accumulation of collective experience never had an
existence in the Korean political tradition. Law was an instrument for
chastising the vicious and the depraved. It was sharply distinguished from
custom. It always signified a norm with physical force as a sanction behind
it. It was therefore synonymous with punishment, no more or less. It is little
wonder that the ruling elite considered law beneath its dignity. Indeed, the
concept that law applies only to the barbarians or to the ignorant masses
and never to the proper Chinese or to the rulers is strongly rooted in
Korean thought. When the present- day Koreans try to follow the AngloAmerican example, they have to depart so far from their traditional ways
of thinking that one cannot help wondering whether it is feasible, let alone
advisable to do so (Pyon-choon 1982 pp. 19 and 30).
If we accept this view as typically eastern, then clearly the gap between
easterner and westerner is wide. For a westerner, a contract is of the highest
significance. It put into words powerful moral forces as they apply to the case
in hand. Behind the contract stands a huge body of law and 3,000 years of
religious and moral tradition. For the easterner, the contract is a simple
agreement without such psychological and philosophical roots. Both sides
should be aware of this gap during contract negotiations. It is the source of
much misunderstanding.
3. EUROPEAN (CONTINENTAL) LAW AND ANGLO - AMERICAN LAW
"Continental" law
The so-called "continental" law prevails in most of continental Europe, in
France and Germany for example. This law derives from a code which the
Roman Emperor Justinian developed 1,50Q years ago. For this reason, lawyers
often call it "Roman law". The Code Napoleon of 1803 developed and updated
Justinian's code and influenced many legal systems around the world including
those of Japan and most South American countries. The essence of
"continental" law is Codification. A clear code expresses what is legal and what
is not. The German BGC (Civil code) is an excellent example. The continental
accumulation: tich luy
beneath one's dinity: kh6ng xerng vol pha'm cach cua...
chastising: trerng trq
conduct: qui t6c ung xer
depraved: suy doi, sa doe
forbid: cam
13
family of law has well developed private law, especially the contract and the
commercial branches.
"Anglo American" law
-
Unlike Continental law, the Law of England, the United States (and many other
English - speaking countries) is not completely codified. The tradition of
uncodified law goes back to ancient kings who sat under oak trees and made
legal decisions case by case.
To achieve fairness, the king decided each case in line with earlier decisions in
similar cases, the so-called precedents. For this reason, lawyers often call
Anglo - American Law "case law".
Today, public law is generally codified, while private law remains largely case
law. The case - law system prevails in England, in the United States, and in
many ex - colonies of Britain such as Australia.
It is important to note that the USA has codified its commercial law - tidying up
the chaotic situation in which some fifty states followed often widely different
legal practices. The Uniform Commercial Code (UCC) was written between
1941 and 1952. A 1962 revision was adopted by 49 states. A 1972 revision was
also widely adapted, although different states and courts interpret the UCC
differently, it offers a vital guide to current American thinking.
Because England and the United States were predominant in world trade until
recently, Anglo - American legal thinking strongly influences international
practice. The Anglo - American family has a fully developed private law. In
particular, the big trading countries have developed a strong commercial and
contract law.
Anglo American and Continental Law: the Differences
-
Anglo - American contract law is largely case - law. Each decision on a new set
of facts or on the construction of a previously undisputed law by a judge creates
a precedent. This precedent may be binding, if so future judges will follow it.
The chart below compares how Continental and the Anglo - American law treat
the relationship between a case and the law.
14
The Anglo - American and the Continental approaches to law produce different
styles of legal argument, and very different contract language. Much of the
material in the following chapter explores these differences. Let's take a single
example for now: the length and complexity of Anglo - American contracts.
You have probably noticed that English and American lawyers draft long
contracts in difficult language. Why is it? Perhaps lawyers are paid by the
word, and a long contract makes more money than a short one! Although it was
true in the past, it is not the heart of the problem at present.
In the Anglo - American legal world, as we have seen, nobody knows the result
in any given case until the judge reaches a decision. If the parties want to avoid
surprises, they must draft a detailed contract covering all future possibilities.
This makes contracts long and full of exceptions and conditions. Further,
judges must take binding precedents into account when making their decisions.
Each case may have dozens (even hundreds) of precedents. 'Contract language
has developed over the centuries to "force" the judge to arrive at the same result
whatever precedent(s) he or she uses. One example, if a judge once refused
damages because the plaintiff had incurred "costs" while the contract spoke
only of "expenses". Future contracts will tend to speak of "costs and expenses",
and thus avoiding the problem.
15
CONTINENTAL
ANGLO-AMERICAN
PERHAPS
The legislature passes a statute (= law)
that tidies up a complicated situation, or
it may pass completely new laws.
16
No contract is complete. When the contract does not answer a question, the
answer lies in the applicable law, the law of a particular state or country. In
principle the parties are free to choose the law which applies to the contract.
What is important in choosing an applicable law? What happens if the parties
cannot agree on an applicable law?
The parties should agree on the applicable law before drafting a contract.
Without a defined applicable law, the parties may write unenforceable
provisions. Further, some applicable laws require a more detailed contract than
others. If the parties simply cannot agree on a law, then they must write a very
long contract.
If a contract is a fish, it swims in water. In principle the parties are free to
decide which water their fish will swim in. A Chinese - German contract could
choose German, Chinese, English, or, to oversimplify a little, any other national
law.
You often find the Applicable Law clause at the end of a contract. Even so, you
should turn to it first before reading the rest of the contract. Some provisions of
a contract change their meaning radically under different legal systems.
An example of a carefully worded applicable law provision:
This contract, and all questions concerning its formation, validity, interpretation
and application shall be governed by the laws of the State of New York
Study this wording. It says that the laws of the State of New York govern the
contract. That is clear enough. The clause also mentions four questions
governed by these laws:
4.1. Formation
Was the contract correctly formed? That depends on the applicable law. But if
the contract was not correctly formed, it does not exist, and so there is no
applicable law. And if there is no applicable law, it is impossible to decide if
the contract is correctly formed or not! This legal knot is easy to untie if the
applicable law: luat ap dung
defined: dich danh
formation: hinh thanh
17
parties agree that not only the contract itself but also the question of its
formation is subject to the laws of the State of New York.
4.2. Validity
Is the contract valid? If not, the same problem (and the same solution) arise as
with Question 1, Formation.
4.3. Interpretation
How will the parties carry out their duties? What rules apply to the performance
of the contract? As with interpretation, a dispute might arise about a substantive
law and procedural rules. Again the wording makes the situation absolutely
clear.
An applicable law clause not only states the law applicable to the contract, it
sometimes states what law is not applicable. This clause is from a subcontract
for space technology. The main contractor is American; the subcontractor is
German.
The contract shall be governed by, subject to, and construed in accordance
with the laws of the State of Florida; This Contract shall not include or
incorporate the provisions of the "United Nations Convention on Contracts
for the International Sale of Goods"
18
This contract was written at a time when both the United States and Germany
were in the process of ratifying the United Nations Convention (the so-called
Vienna Sales Convention). The parties wished to exclude its provisions from
their agreement. Since the matter is disposive, they had every right to do so.
What happens if during negotiations the two parties cannot agree on an
applicable law? If a French company, for example, will not accept Chinese law,
and its Chinese counterpart will not accept French law? First, the parties could
decide on a neutral law, for example, English law, or Swiss law as applied in
their respective countries. Second, the parties might agree to the law of one
side, but write a very detailed and extensive contract leaving almost nothing for
the applicable law to decide. Accepting the law of "the other side" is not
particularly dangerous if you research carefully and write a clear, detailed and
fair contract. There is a third possibility. If two sides reach no agreement, you
sometimes see a provision such as this:
19
This Agreement shall be interpreted in accordance with the laws of the Federal
Republic of German. If, however, the German law conflicts with Texas or U.S.
federal laws regarding any dispute between the parties, then the parties agree to
use their best efforts to negotiate an equitable compromise acceptable to both
sides hereto; In the event that such a compromise cannot be reached in a timely
manner, then the dispute shall be settled in accordance with the separate
"Arbitration Agreement" between the parties
The parties were (apparently) unable to agree on one applicable law, so they
named three. The clause foresees trouble, disputes and arbitration ahead
because of this awkward arrangement. In the end, the arbitrator will decide
what law really applies.
A surprising number of international contracts use the weaker options, in effect
allowing the court or arbitration to decide the applicable law. How does the
court, if required, make its decision? What does it take into account? The ICC
Rules of Conciliation and Arbitration 1988, says:
In the absence of any indication by the parties as to the applicable law, the
arbitrator shall apply the law designated as the proper law by the rule of
conflict which he deems appropriate (Article 13.3)
This doesn't help much: the rules governing conflict of law are a study in
themselves, and so, for the parties to the contract, the arbitrator's decision is
unpredictable. As a rule of thumb, however, the court usually weighs four
factors, whatever conflict - of - law rules it is applying.
awkward: vung ve
clause: diet., khoan
compromise: nhuvng b6
conflict: xung d6t
equitable: cOng bang
20
a. The place of performance of the contract (i.e. the place where most of
the work is actually done);
b. The place of execution (= signature) of the contract;
c. The language of the contract;
d. The currency or the weights and measures prescribed.
Taken together, these points show the gravity of a contract - it's "natural
weight". It practice, the place of performance, is often decisive. In an FOB
sales contract, this is the country of the seller. In a construction contract, that of
the buyer.
5. SOME SPECIMEN CLAUSES
Applicable law This contract shall in all respects be construed and interpreted
in accordance with the law of the People's Republic of Bangladesh including
any such Laws passed or made or coming into force during the period of the
Contract
Governing Law These General Conditions and the Contract are governed by
Italian Law
conflict - of - law rules: qui pham luat c xung dOt or otherwise: hoac khac di
regardless of: bat ke
designated: chi dinh
rule of thumb: qui tbc thvc nghiem
gravity: trong diem
specimen: mau
21
In each case, the water round the fish is labeled: Bangladeshi law, Italian law
the law of the Philippines. Even so, the third formulation is clearly better than
the other two: it takes into account most of the legal problems that arise in
disputes about the applicable law.
IMPORTANT REMINDER: The applicable law governs the disposive
provisions (or traditions) of the private law: things that the parties could decide
themselves but - for whatever reason - left unregulated. Public law always
applies, whatever the parties agree.
6. COMPREHENSION QUESTIONS
hereto: 1. doi vUi hop clang nay
2. tham gia hop dong nay
22
2. Does the clause below create a "tax - free contract" for BEC?
The buyer shall compensate and save harmless the Seller from all taxes assessed
against the Seller by the government of the Buyer's country
q YES
q NO
q YES, UNLESS...
6.2. Restatement
The clause below is from a contract for the sale of mining equipment to South
Africa:
Before and during the execution of the work, the Contractor shall collaborate
with the Representative authorized by him to ensure that all work is being
carried out in accordance with the requirements of the Mine and Works Act,
1956, the Factories, Machinery and Building Works Act No. 22. of 1941 as
amended applicable, as well as all regulations made in pursuance thereof
1. Are the Mine and Works Act, 1956, and the Factories, Machinery and
Building Works Act No.22. of 1941 Public law or private law?
q PRIVATE
q PUBLIC
2. Are "as amended applicable" and "all regulations made in pursuance
thereof" public law or private law?
q PRIVATE
q PUBLIC
3. If the Contractor agrees to this clause, is he taking on any additional
duties or giving up any rights that would normally be his?
q YES
q NO
23
Unfortunately:
a. There is no "British Law", only English or Scottish Law. (Scottish law
is a member of the continental law family.)
b. Specifying "Common Law" seems to exclude Equity and Statute Law.
Questions:
fish swim?
q ENGLISH COMMON LAW
q ENGLISH LAW IN GENERAL
q SCOTTISH LAW
q NO LAW
24
Part 2
This lease is the subject of the contract sentence. Many contracts begin
with a similar subject: This Licensing Agreement, This Technical
Assistance Agreement, and so on.
BETWEEN...
The. word between introduces the names of the two parties. Each party is
usually given a " hereinafter referred to" title: the buyer or the seller;
Employer or Contractor or whatever.
25
THIS LEASE
Made the tenth day of August 2000
Between
Alan Quartermain hereinafter referred to as " the Landlord"
And
Elizabeth Jenkins hereinafter referred to as " the Tenant"
Witnesseth:
That the Landlord hereby leases to the Tenant and the Tenant hereby leases from
the Landlord on the conditions attached hereto the apartment known as
Apartment 4 on the fifth floor in the building known as 13 Greek Street for the
term of three years commencing the first day of September 2000 and ending the
thirty-first day of August 2002 at the annual rent of $5,000 payable in equal
monthly installments in advance on the first day of each month during the said
term
In Witness Whereof,
Landlord and Tenant have respectively signed and sealed this lease as of the day
and year first above written.
WITNESSE TH THAT ..
This is a main verb. "This lease witnesseth that..." simply means "This
document is proof that..." (The -eth is an antique ending for the third
person singular, present tense.)
WHEREAS...
This lease contains no "whereas" clauses. It is commonly understood that
a string of whereas clauses at this point gives, if necessary, the
background to the agreement.
commence: b6t dau
contractor cht) than
employer: chi.), chi.) dau ttr
whereof: vi0c nay
26
...THAT...
After the word that comes a string of noun clauses- a list of the agreed
rights and duties of the parties. Grammatically, of course, a noun clause
looks exactly like a sentence; for example: He said that he loves dogs but
his wife prefers horses.
The two clauses in italics are noun clauses, they are direct objects of the verb
"said". In structure, however, they are exactly like sentences. In the same way,
the many "sentences" in a contracts are noun clauses, direct object of the verb
"witnesseth". This means, of course, that the periods (full stop) at the end of
each provision in the contract are grammatically wrong, but in a long contract
they are unavoidable. (This also explains why the provisions of a contract are
often called clauses and not sentences).
IN WITNESS WHEREOF ....
The two parties sign the contract to "witness" it, in other words to "give
proof of their agreement". This use of the word witness can cause
confusion because, in many documents, the signatures of the parties must
themselves be witnessed. In this case, however, the signature of the
"witness" simply confirms that the signature of the party is genuine.
1.2. "Know All Men ..." (Variation 2)
This variation occurs in short document as Bid Bonds, less often in contracts.
The document below is a transfer of ownership for a new car. Again the
contract is a single sentence.
27
This means "All men (people) are informed ..." know is main verb of the
contract sentence : it is in the command (imperative) form.
BY THESE PRESENTS ...
These presents means "these clauses present before you" or simply "this
contract".
THAT...
The rest of the contract is a list of noun clauses containing the information
that "all men should know." As with Variation 1, any number of "whereas"
clauses can follow the word "That".
28
The seller has sold ... Then the goods are named
IN WITNESS WHEREOF...
The formula is the same as for Variation 1. (The seal in the case of a
Transfer of Ownership like this is important; since only one party signs
the document, the seal makes it legally binding.)
The name of the agreement is, in this case, simply a title outside the
grammatical structure of the contract sentence.
BETWEEN...
The word between introduces the name of the two parties. This contract
illustrates a common but old-fashioned usage. The first name is said to be
"of the first part" and the second name "of the second part" and "the party
of the second part".
29
This contract sets out the rights and duties of the first party in one
sentence, and the rights and duties of the second party in a second
sentence. In both cases, consideration is mentioned.
IN WITNESS WHEREOF...
30
32
33
English is a mix of French (from the Norman conquerors of 1066) and AngloSaxon (the German dialect of the invaders who filled the vacuum left by the
Roman withdrawal from England). When languages combine (or creolize), two
results are common:
- An oversize vocabulary with blurred distinctions of meaning;
- A simplified grammatical structure with usage and idiom replacing
"logical" rules.
Both results occurred in the case of English. Because English grammar is thin
on rules and rich in "illogical" usage, it is difficult to express complex, logical
relationships among ideas. As a basis for expression, try to work with the four
basic clause structures that underlie most well written contract provisions.
Structure 1: Main Clause Plus Main Clause
Two sentences (main clauses) joined by and (or a similar conjunction) - this is
the most frequently used structure in the English language. Because most
languages freely use and, but, or between main clauses, this construction
presents no problems internationally.
MAIN CLAUSE
MAIN CLAUSE
Example:
The stipulated prices are fixed, and they are to be understood delivered and
paid to the place of destination
The headings and marginal notes in these General Conditions shall not be
deemed part of this Contract, and they shall not be taken into consideration
in the interpretation thereof
Structure 2: Main Clause Plus One Subordinate Clause
The simplest relationship between two ideas is to make one into a main clause
and the other into an explanatory or subordinate clause. These simple sentences
are sometimes enough to express quite elaborate contract provisions.
conjunction: lien to
delivered paid to the place of destination:
ctrac van 6i a tra den nai den
34
MAIN CLAUSE
SUBORDINATE CLAUSE
Example:
The Employer has the right to terminate this contract if construction work is
not carried out in accordance with local by-laws
You can also begin with the subordinate clause, especially when using the ifclause; the addition of the word then makes the relationship particularly clear.
SUBORDINATE CLAUSE
MAIN CLAUSE
If the construction work is not carried out in accordance with the local bylaw, then the employer has the right to terminate this contract
Structure 3: The Chain: Main clause plus more than one subordinate
clause
In contracts, a string of conditions is often attached to a main provision. Then
you must "chain" the clause:
MAIN CLAUSE
SUBORDINATE
CLAUSE
(TYPE A)
SUBORDINATE
CLAUSE
(TYPE A)
SUBORDINATE
CLAUSE
(TYPE A)
35
Naturally, the main clause can also come after the daisy-chain. You should
repeat the conjunction, for example, if, at the start of each clause. A ood
example occurs in these Terms for. Deliveries Abroad:
The delivery time has been adhered to if the consignment is ready for
dispatch ex works within the agreed period and if notice to this effect is sent
to the purchaser
This structure is common in whereas-recitals: "whereas ... whereas...,
whereas..., and whereas..."
Structure 4: Main clause between subordinate clauses
Where a sentence contain clauses of several types (let's say an if-clause and a
because-clause), you should place these clauses on either side of the main
clause:
SUBORDINATE
CLAUSE
(TYPE A)
MAIN CLAUSE
SUBORDINATE
CLAUSE
(TYPE B)
Example:*
Where the contract provides for deliveries in lots or installments, penalties for
late delivery shall be calculated on the basis of the value of each lot or
installment, provided that the late delivery does not impede the general
performance of the contract
For the watch to be set, both the command button and the recessed set button
must be used. If the set button is to be depressed, use should be made of a small
object such as paper clip. Damage could be incurred by the watch if a large
object is employed.
Active
When you set your watch, you'll have to use both the command-button and the
recessed set-button. Use something small, a paper clip for example, to depress
the set-button. If you use something bigger, you could damage your watch.
The passive is sometimes dangerous if you assign a duty but fail to say who
must perform it. Just compfare the following Examples :
A monthly progress report should be The Contractor should send a
sent to the Employer at his registered monthly progress report to the
Employer at his registered office
office
Or
Payment is required on or before 13th
of each month
The problem is acute with oriental languages which often have no passive form.
A Chinese-speaker, for example, may miss the difference between:
defective : cO khigrn khuyet
loophole : ke ha c6 the trenh ne dtrac
purity : dq tinh khigt, thugn chgt
37
Memorandum of Understanding
This Memorandum of Understanding expresses an understanding between the
Moran Corporation (hereinafter called "Moran") and The Ministry of Public
Works of the Republic of Verbena (hereinafter called "the Ministry")
regarding development of a photovoltaic system of power generation for use
in the Republic of Verbena
Witnesseth:
38
1. Moran and the Ministry shall cooperate in producing a plan for the
installation of a pilot project plant at a site to be designated by the Ministry
[Further provisions]
In Witness Whereof the parties hereto have caused this Memorandum to be
this day executed in Verbena City
5.2.
1. Study this extract from a warranty for advanced electronic equipment:
b.
All components used in the manufacture of the Goods shall be new and
unused and not of an age which would impair their operation; Reconditioned
or refurbished components shall not be used
39
No q
b. If no, why do you think the drafter used all three terms ? same as C :
c. Is there a clear distinction between reconditioned
and refurbished
parts?.
Yes q
d.
If no,
terms?
No q
e. The second sentence seems to repeat the idea expressed in the first
sentence. Is there really one idea or two here?
One q
Two q
b.
A unanimous decision is required (Passive Verb) on all technical questions
by which members of the Consortium are affected (Passive Verb), and, as far
as single members are concerned (Passive Verb), their express written
approval is required (Passive Verb)
consortium : c6ng xo6c xiom, tap doan
rephrase : viet lai cho r6 nghia
40
aware of : bigt
infringement : vi /Mani
liquidated damage : mot ton thgt dtrac xac doh
shift : ca
territory : lanh th6
41
An explanation of the test may help you there. Briefly this is the situation. A
group of three suppliers (a consortium) is selling to a Purchaser. Each member
of the consortium has his own "scope of supply". If the Purchaser has a claim
against the consortium, he can bring it against any member; the members are
said to be "jointly and severally liable". Among themselves, however, the
members make an agreement. If the Purchase makes a claim against the "wrong
guy", then, of course, the "wrong guy" will have to pay, but the guilty party will
compensate the "wrong guy" in full.
(As a purchaser, you may sometimes deal with consortium agreements. It is
common practice for the employer to have the right to see the relevant
consortium contract of his contractors).
42
Part 3
Anglo - American contracts often list "contract documents ". Why? And what
problems does this list may cause?
If the contract is the entire agreement, then outside documents are normally
excluded from the contract. Some contracts, however, include documents by
naming them specifically. This creates a problem if the included documents
contradict each other. For this reason, the drafter must rank documents in order
of priority.
Anglo - American law takes the contract as the entire agreement. In other
words, nothing outside the contract unless it is specifically referred to and
included as part of the agreement. In international practice, parties often wish to
"incorporate" (= include) outside materials into the contract such as: general
conditions, special conditions, subcontracts, the Incoterms of the International
Chamber of Commerce, and so on. To do this, the contract names such
materials as Contract Documents. For example:
"Contract" means this Purchase Agreement itself, and all applicable General
Conditions of Purchase, Special Conditions of Purchase, specifications, the
Statement of Works, and manufacturing drawings
contract documents: tai lieu hop deng
contradict: mat./ thu6n
entire agreement: hap clang Ong the
in order of priority: theo trot
tiOn.
43
All contract documents and the clauses of this contract shall be read, if possible,
so as to be consistent. In the event of conflict, the order of precedence for the
provisions and documents which constitute this agreement is as follows:
I. Any alterations typed on the face of the printed Purchase Agreement
2. The printed text of the purchase agreement itself
3. Specifications
4. Statement of Works
5. Manufacturing Drawings
6. The Buyer's Special Conditions of Purchase
7. The Buyer's General Conditions of Purchase
This clause is well drafted. It lists specific documents that are parts of the
contract (Don't worry if you don't know what all these documents are!), and
it accepts that with so many documents, contradictions are likely. To resolve
contradictions, it gives an order of precedence, or "seniority" among the
documents. The higher its place on the list, the greater the authority a
document has.
"Incoterms 2000" means Incoterms 2000, the international rules for the
alteration: thay ddi
In the event of: neil c6
precedence: sv &Mg trtrdc
insofar as: MI mut
44
In Section (e), the following clause from a procurement contract for a power
station allows the purchaser to regulate priority. The supplier is likely to be
unhappy about that.
The term Contract Documents shall mean and include the following which
shall be deemed to form an integral part of the contract:
a. Invitation to Bid, Instructions to Bidders, Contract Agreement,
General Conditions of Contract, and Special Conditions of Contract
b. Specifications of the equipment/ goods to be supplied and erected
under the contract as detailed in the accompanying Technical
Specifications
c. Supplier's bid proposal including the letters of clarification thereto
between the supplier and the Purchaser prior to the Award of
Contract
d. All the materials, literature, data and information of any sort given by
the supplier along with his bid, subject to the approval of the
Purchaser
e. In the event of any conflict between the above mentioned documents,
the matter shall be referred to the Purchaser whose decision shall be
final
2. THE WHEREAS
RECITAL
motivation: Bong cc
parol evidence: khdu chum
procurement: mua sa'm
integral part: bo: phan hop thanh
whereas - recital: lief Ice cac can cu de
hai ben ki hdp clang.
45
WHEREAS the parties have for many years successfully traded together
AND WHERWEAS Styropak has recently developed biodegradable
Styrofoam packaging
After this opening come the rights and duties agreed by the parties. The word
whereas means because or considering that. In other words, whereas - clauses
are not provisions, promises or conditions - they are explanations. file above
example is a typical whereas - recital. If you look at it quickly, you'll see that it
contains two types of background information. Such information is useful to an
biodegradable: c6 the phan hu3, ye met sinh hoc
circumstance: trutng hop
deal: vu (thu'ong), viec buon ben
expectation: mong mu6n
styrofoam: xcip ti-r6
46
47
"Contract" means the agreement between the Employer and the Contractor
for the execution of the works incorporating the Conditions, Specification,
Employer's Drawings and Contractor's Drawings, Price and completed
Schedules, Tender, Letter of Acceptance and such further documents as may
be expressly incorporated by the Letter of Acceptance
If a word has several meanings, a definition pinpoints the agreed meaning. The
FIDIC definition of foreign currency does this. (The word foreign changes its
meaning according to the nationality of the writer, so a single, agreed meaning
is essential).
Task 2. Assigning a Meaning
If the parties attach a special meaning to a term - if they go beyond its normal
dictionary meaning - then the definition explains this special meaning. The
FIDIC definitions of contractor and contract work in this way. (No dictionary
defines contract as "the agreement between the Employer and the Contractor
for the execution of the Works, etc"). This is a special meaning agreed by the
parties)
48
Any defined term is usually capitalized throughout the text of the contract,
either the whole word or simply the first letter is printed in capital letters. This
alerts the reader to the special definition.
As a general principle: every term that the parties discuss in detail during the
negotiation is defined under Definitions at the start of the contract.
4. SOME SPECIMEN DEFINITIONS
The most common wording at the start of the definitions section is like this:
1. Definitions
In this contract, the following terms shall be interpreted as indicated:
1.1. "The Contract" means the agreement entered into
The wording below is more careful:
1. Interpretations
The following interpretations of terms shall apply except where the context
otherwise indicates:
1.1. "Acceptance" means the issue of a Quality Assurance and Acceptance
Certificate by the Contractor subject to...
The purpose of writing "except where the context otherwise indicates" is to
avoid a common problem: the use of a defined word in a different context. For
example, some contracts define the word works:
49
Formal
Definition
Examples
Negative
Definition
5. COMPREHENSION QUESTIONS
5.1. The One - Page Contract
Look closely at Clause 2 of the following contract form. Does it conform with
what we have said in this section? If not, how does it differ?
50
CONTRACT FORM
This agreement is made on the sixth day of May, 20..... between [NAME OF
PURCHASER] of [MAILING ADDRESS OF PURCHASER] (hereinafter
"the Purchaser") of the one part and [NAME OF SUPPLIER] of [MAILING
ADDRESS OF SUPPLIER] (hereinafter "the Supplier") of the other part.
Whereas the purchaser is desirous, the goods and ancilliary services listed in
the Price Schedules and described in the Technical Specifications should be
provided by the Supplier and has accepted a bid by the Supplier for the
provision of those goods services in the sum of [CONTRACT PRICE IN
WORDS AND FIGURES] (hereinafter "the Contract Price").
Now this agreement witnesseth as follows:
1. In this Agreement, words and expressions shall have the same meanings
as are respectively assigned to them in the Conditions of Contract referred
to;
2. The following documents shall be deemed to form and be read and
construed as part of this agreement, viz.:
a) The Bid-Form and Price Schedules;
b) The Schedule of Requirements;
c) The Technical Specifications;
d) The General Conditions of Contract; and
e) The Special Conditions of Contract;
3. In consideration of the payments to be made by the purchaser to the
Supplier as hereinafter mentioned, the Supplier hereby covenants with the
purchaser to provide the goods and services and to remedy defects therein in
conformity in all respects with the provisions of the Contract;
4. The Purchaser hereby convenants to pay the Supplier in consideration of
the goods and services and the remedying of defects herein, the contract
price or other sums as may become payable under the provisions of the
Contract at the times and in the manner prescribed in the Contract.
IN WITNESS whereof the parties hereto have caused this contract to be
executed in accordance with their respective laws the day and the year first
above written.
51
5.2. In 20..., Verbena Storage bought from Northern Chipboard technology for
making warehouse shelves from chipboard planks. For a period of five years,
Verbena Storage agreed to purchase the board directly from Northern.
Unfortunately, in tropical humidity, the boards bend under the weight of stored
components. Verbena Storage asks for help, Northern refuses. Verbena Storage
re-reads the contract. The relevant clause says :
Northern says tropical heat and humidity are not "normal conditions" and
installing shelves in tropical warehouses is "improper use". Verbena Storage
disagrees. Obviously the words normal and improper need interpretation. The
recital helps here:
5.3. Verbena Fan makes electric power fans for industrial applications. Verbena
Fan buys technology and hi-tech parts from BEC. A clause in the contract says:
bend: cong
humidity: de) dm
void: khOng cb gia tr!
52
The maintenance manual for the fans uses many photographs to help repairmen
who speak little English. Four years after the contract comes into force, the
maintenance manual is revised. BEC sends Verbena Fan the text of the new
manual but not the new photographs. When Verbena Fan asks for the
photographs, BEC says that the photographs are not "technical data" but merely
an aid to repairmen.
1. IF the contract contains no definition of technical data, who is probably
right?
q VERBENA FAN
q BEC
q VERBENA FAN
q BEC
53
Part 4
International companies often have subsidiaries with similar names. This can
create confusion. Worse, it allows a deliberate "dirty trick" on the part of an
international company. What is this trick, and how can you prevent it?
It is essential to discover the exact name of the company with whom you sign a
contract. If you notice a difference between the name on the contract and the
name on the company's letterhead, start asking questions: you may be dealing
with an undercapitalized subsidiary.
On the first page of most contracts is the name of each party. When it first
appears, the name is normally the full, registered name of the company. Often a
few words of description follow, perhaps the state of registration or the place of
the company's head office.
Some companies have complex names, for example, The Smith, Jones,
Wrangel and Ironside Supply Company Inc. To avoid repeating this formula
during the contract, a short - form follows the first use of the name. The short form may be a specific name:
The Smith, Jones, Wrangel and Ironside Supply Company Inc., a corporation
organized and existing under the laws of the State of Delaware, USA, having
offices in San Francisco, California, hereinafter called "SMITH"
Or a generic description:
54
The use of short - forms saves space and reduces the risk of mistyping. If a
name appears in different forms in a contract, there can be legal problems.
Many contracts capitalize the short - form throughout the contract; this tells
readers that a short - form is used.
2. THE SIGNATURE
The formulas used to sign contracts are sometimes antiquated and hard to
understand. Although serious mistakes are unlikely, it helps to understand the
meaning behind the formulas.
In the Anglo - American tradition, the parties sign the contract to "witness" it,
that is, to prove that they reached this agreement.
Anglo - American contracts and it is always the case with Vietnamese
contracts, are sometimes "sealed", i.e., a company seal is fixed to the contract.
a company seal is fixed to the contract. The use of the seal sometimes changes
the way that the law applies to the contract.
Sometimes the signatures of the parties are themselves "witnessed". This means
that a third party states that the signature is genuine.
Under the Uniform Commercial Code (UCC), a "signature" is anything that a
party uses to authenticate the agreement.
The traditional formula at the end of a simple agreement says:
In Witness Whereof,
We have this 16 th day of March 2000 made and signed this Agreement
antiquated: co to
authenticate: chimg thut
55
The seal was once a large disk of red wax with an impression on it. Mostly
today seal is replaced by the two letters L.S. (Latin Locus sigilli = the place of
the seal). What is the significance of the seal? Ever less. Under some laws
within the Anglo - American family, some ancient rules still apply, for
example:
- An offer under seal is not revocable;
The Statute of Limitations is longer on a sealed contract. (This means
the right to raise a legal action running for a longer time);
A contract under seal requires no consideration.
The UCC has radically changed the rules in the United States:
Seals inoperative
2.203. The affixing of a seal to a writing evidencing a contract for sale or an
offer to buy or sell goods does not constitute the writing, a sealed instrument
and the law with respect to sealed instruments does not apply to such a contract
or offer.
In plain language, a seal on an offer or a procurement contract has no major
significance.
You may see an even longer formula on some contracts:
Signed, Sealed and Delivered...
The meanings of Signed and Sealed are clear - but what is Delivered ? "Delivered"
means physically giving the signed and sealed contract to the other person. The
usage comes from the law of sealed instruments. Until a contract under seal has
been physically given - delivered - to the other person, it is not valid.
Sometimes when the parties sign a contract, the signatures are "witnessed" (the
genuineness of the signature is confirmed) by a third party - a marriage contract
is the classic case. In commercial contracts, the applicable law decides about
the witnessing of signatures. Consult your lawyer for the appropriate formula.
In the Anglo - American world, simpler formulas are gaining favour. For
example:
THE PARTIES, INTENDING TO BE LEGALLY BOUND, have executed
this agreement as of the date first set forth above
seal: con clau, (big dau
56
A contract that allows assignment (= sale, gift, etc.) of rights and duties is
dangerous. It allows the parties to pass on their duties to third parties, perhaps
to subsidiaries or even total outsiders.
Most applicable laws allow assignment of rights but not of duties. Normally, do
not accept a contract that allows assignment of duties. A clause expressly
forbidding all assignment without the agreement of both parties is often useful.
Sometimes a contract contains a clause like this:
Assignment
Neither the rights and duties under this contract nor the contract itself may be
assigned by either party, either in whole or in part, without the prior written
approval of the other party
Assignment is a general word for transfer. Sale is a kind of assignment, as are
gift and exchange. Unless the parties agree otherwise, most legal systems allow
the assignment of rights but forbid the assignment of duties. In general, this is
fair. The assignment of a right (the right to collect payment, for example) hurts
no one. The assignment of a duty (for example, the duty to carry out research
and development into a new process) can change a contract completely.
In principle, try to forbid assignment without the consent of both parties.
Some specimen clauses
57
4,
Negative
Wording
Positive
Wording
4. COMPREHENSION QUESTIONS
This Contract
is entered into as of the 7 th day of March 20...
by and between
The HURD COMMUNICATIONS CORPORATION
a Delaware corporation,
with offices at 4848 Main Street, Cardiff, California
(hereinafter called HCC or BUYER)
and
the VERBENA PARTS PROCUREMENT COMPANY
with facilities at 10 Francis Street, Verbena City
(hereinafter called VERBENA PARTS or SELLER).
1. What is the meaning of the expression "a Delaware corporation"?
2. If you had received letters from Hurd under the letterhead Hurd
Communication Inc., what action would you take?
3. In this contract, each company has two names (HCC or BUYER, and
CERBENA PARTS or SELLER). What is the reason for this double
wording?
58
A contract for the sale of goods for the price of $500 or more is not
enforceable by way of action or defense unless there is some writing to
indicate that a contract for sale has been made between the parties and signed
by the party against whom enforcement is sought or by his authorized agent
or broker
In the eyes of the UCC, which of the following are properly authenticated
agreements?
1. A contract bearing two authorized signatures
q NO
q UNCLEAR
q YES
2. An unsigned Confirmation of Order on company stationery
q NO
q UNCLEAR
q YES
3. An agreement "signed" with an X
q YES
q UNCLEAR
q NO
59
4. An agreement bearing the initials of one of the parties and the note
"Still needs a couple of changes"
q NO
q YES
q UNCLEAR
5. The same agreement as in 4, but without the note
q NO
q YES
q UNCLEAR
6. A tape recording of one of the parties saying "I agree to the whole text
exactly as it stands"
q NO
q YES
q UNCLEAR
60
Part 5
A scope clause explains (often in outline only) what the seller must supply. The
delivery clause establishes how delivery is to be made, what counts as delivery,
the delivery date, and what counts as delay. It regulates the passage of risk and
title, and it states the consequences of non-excusable delay.
The scope provisions in a contract take so many forms and are so technical that
a full discussion is well beyond our present purposes. In fact, contracts often
recognize this fact: the scope clause can be very short, referring the reader to
technical specifications else where. For example:
61
or
Scope of Services
The Contractor agrees to carry out a feasibility study according to the Statement
of Work (SoW) (Annex 2) prepared on the basic of the Ministry Requirement
(MR) (Annex 1)
This separation of obligations and specifications is valuable source of clarity:
the manager or risk analyst gains an overview of the contract without drowning
in technical detail.
Step 1. How will Delivery be made?
In a simple sales contract, a key provision explains how the seller will make
delivery. For example:
For the equipment listed in Annex 1 the price is for delivery free on board the
carrying vessel designated by the Buyer at the port of Hai Phong including
expenses for the stowing and packing, as well as expenses incurred before
loading the equipment on board the carrying vessel
The ways in which a seller delivers goods are few and standard. For this reason,
contracts often use a standard term: the Incoterms are best known. The 13
Incoterms have clearly established meanings; the ICC lays down exactly the
duties of the buyer and the seller for each term. The 13 terms are grouped in
four categories: E-term, F-terms, C-terms and D-terms.
62
Group
Term
Term in full
E- Term
EXW
Ex Works
F- Terms
FCA
Free Carrier
FAS
FOB
Free on Board
CFR
CIF
CPT
Carriage Paid To
CIP
DAF
Delivered at Frontier
DES
Delivered ex Ship
DEQ
Delivered ex Quay
DDU
DDP
C- Terms
D- Terms
63
Using the Incoterm FOB, the complicated delivery clause above reads:
The equipment listed in Annex 1 shall be delivered FOB Hai Phong (Incoterms
1990)
If the vessel named by the buyer fails to arrive on or before the agreed delivery
date, then the seller may at his discretion deliver the goods to a bonded
warehouse in the port of Hai Phong, and shall be deemed to have fulfilled its
delivery obligations under this contract
This is only one example. If the parties foresee any kind of problem, they,
should regulate it in the contract.
Step 3. What is the Date of Delivery?
Normally a delivery date is clearly fixed - but there can be problems. "Delivery
shall be made on or before 11 April 20..." looks clear, but is delivery at thirty
seconds past midnight on 12 April also timely? In most cases, probably it is.
In some situations, however, exact timing is essential, for example `just in
time" delivery of components to a modern production line. In such cases,
lawyers say that "time is of the essence". Some contracts have time is of the
essence stamped on them to make the point clear. Buyers often add a clause
like the one below to a procurement contract:
Time is, and shall remain, of the essence of this agreement, and no acts of the
Buyer, including without limitation to, modification of this order or acceptance
of late deliveries, shall constitute waiver of this provision
The Seller shall immediately notify the Buyer of any actual or potential event,
including in particular any labor dispute, which is delaying or threatens to delay
the timely performance of this agreement
Risk means legal responsibility for goods; title means ownership of goods. In
theory at least, the two problems are entirely separate. First then, assuming the
use of Incoterms, let's look at risk.
Transfer of Risk
The risk for loss of or damage to the goods... passes from the seller to the
buyer when the seller has fulfilled his obligation to deliver the goods
(Incoterms 1990, p.117.)
That is the general principle: risk passes not with physical delivery, but when
the seller has fulfilled his obligations to deliver. This can be earlier than
physical delivery if the buyer "does not take delivery as agreed or fails to give
such instruction... as the seller may require in order to fulfill his obligation to
deliver the goods "(p.117). At what point, then, does risk normally pass? The
chart below shows the point for each of the Incoterms. It's important to note
that risk passes for the three most common terms (FOB, CFR, and CIF) at the
ship's rail.
65
E- Term
EXW
F- Terms
FCA
FAS
FOB
CFR
CIF
CPT
CIP
DAF
DES
DEQ
DDU
DDP
C- Terms
D- Terms
Transfer of Title
The problem of title
ownership) is more complicated. An example: an
aircraft engine is ordered from England by a French shipping company on
behalf of a Nepalese buyer who wants to take delivery in Bangladesh. Half the
price is paid in advance. The ship stops in Portugal where its cargo is
impounded by a court order issued in Germany for a debt contracted by the
ship-owner in Norway. Who owns the engine? Heaven knows!
impounded: ttch thu
66
Many sellers want to retain ownership of their goods until the buyer has paid
for them. Problems in retaining ownership arise when goods are partly paid for,
when the buyer goes bankrupt and has many creditors, and in many other
situations. What are the ground- rule? In 1989, the ICC published Retention of
Title: A Practical Guide to 19 National Legislations. As the name of this book
suggests, this question is still a matter of national rather than international
practice.
Step 5. What Delay is Excusable?
A seller who agrees to deliver on a particular date must accept that late delivery
will be "punished" in some way. Accordingly sellers try to add provisions to a
contract that soften the delivery date, while buyers resist such softening. You
have probably met two softeners: (a) the grace period and (b) the force majeure
provision.
Grace Period
The grace period is usually expressed at the beginning of the clause dealing
with the consequences of delay:
If delivery is not effected within two weeks of the agreed delivery date for
reasons other than Force Majeure, then the seller shall pay...
In other words, problems begin only when delivery is two weeks late. The
effect of this two-week grace period is not quite the same as a delivery date two
weeks later, the seller has an early good-faith target to meet: the buyer can exert
a great deal of moral pressure before the mechanism of the "penalty" takes
over. Even so, grace periods are not common.
Force Majeure
The force majeure provision is normal practice. The seller says: "I'll do my
part, but if something happens that is beyond my control, you can't expect me
to pay a "penalty"
excusable: co the tha tht? duvc
grace period: an han
ground-rules: quy thc can ban
good faith: thin chi, tinh ngay that
67
Force Majeure
68
Payment follows much the same pattern as delivery: how payment must be
made; what counts as payment; when payment is due; what counts as delay;
and the consequences of delay.
Deciding the right price for goods and services is a commercial problem, not a
legal one; lawyers are more interested in payment. Construction contracts,
however, involve complex pricing strategies.
Payment is often a simple enough procedure, but unfortunately payment
provisions in many contracts lack important detail, for example, this clause was
part of an international contract:
The price payable for the equipment specified in Annex 3 is USD500,000 (five
hundred thousand US dollars); The full contract price is payable within thirty
days of receipt of invoice
69
If payment is delayed in such a case, the seller is unsure of his rights, and the
buyer does not know what claims can be made against him - a dangerous
situation for both sides. Careful drafting of a price and payment clause follows
five steps:
Step 1. How will payment be made?
Trade within a country is based on a mixture of trust and the close proximity of
courts of law. International business is not so blessed: Trust is rare, and the
courts are far away and unpredictable. Payment is, therefore, tightly controlled.
The most common type of payment is the confirmed, irrevocable letter of
credit. Typically a contract stipulates:
The Buyer, on receipt of the Confirmation of Order from the Seller, shall at
least 20 days prior to the date of delivery open a confirmed, irrevocable letter of
credit with a first class international bank; 20% of credit shall be available
against the Seller's draft accompanied by invoice; the remaining 80% shall be
available against the Seller's draft accompwlied by the shipping documents
If the buyer is to pay by normal "inland" means s'ich as a check or bank
transfer, then a bank guarantee or a stand-by letter of credit removes the seller's
risk - and these instruments are cheaper for the buyer. The seller usually wants
to specify the currency of payment.
Step 2. What counts as Payment?
When Ali Aziz instructs his bank in sunny Verbena to pay BEC in rainy
Europe, he begins a chain of events that often takes months to complete.
Perhaps the National Bank of Verbena has no funds to make foreign transfers;
perhaps inefficiency delays payment. Of course, the Letter of Credit avoids
such problems, but payment against invoice is still common and buyers must
prefer to pay in this way. To avoid the dangers of late payment, sellers try to
protect themselves with a clause like this:
Payment shall be deemed to have been made only when the contract sum is
paid into the Seller's bank account and is at the Seller's full disposal
confirmed irrevocable letter of credit: tin dung thtr khong the h6y ngang durfc xac nhan
due: den han thank toan
proximity: svgan, la can
70
The cost of late payment is easily assessed: the buyer must pay interest on the
outstanding sum. Typically, the rate of interest is geared to interest rates in the
seller's country. The Federation Internationale des Ingenieurs - Conseils
(FIDIC) suggest in the 1987 version of their Conditions of Contract for
Electrical and Mechanical Works the following provision:
71
3.1. The clause below is typical of the terms dictated by a strong seller to a
weak buyer
Delay in Delivery
2. Of these four things, how many are objective conditions? In other words,
is it possible for both sides, or an outsider, to agree on the exact meaning
of the words?
q 0
q 1
q2
q 3
72
YES
q NO
4. Clause 3 specifies reasons for delay "beyond the Seller's control". Who
decides what is "beyond the Seller's control"?
q
BUYER
q SELLER
q NOT REGULATED
3.2. Study the payment provision below, and then answer the questions.
1. All payments made by the Buyer to the Seller shall be denominated and
made in Deutsche Mark and effected by telegraphic transfer by the Buyer's
bank to the Seller's bank; The Buyer shall bear all the costs of making the
payment
2. With the Coming Into Force of the contract, the Buyer shall furnish the
Seller with an unconditional bank guarantee issued by a first class bank for
fifteen percent of the contract sum. The guarantee shall conform with the
specimen guarantee in Annex G
3. Within twenty days of receiving the Seller's shipping advice, the Buyer shall
open with a first class bank an Irrevocable Letter of Credit in favor of the
Seller and valid for one year. The Letter of Credit shall be for seventy - five
percent of the contract sum and shall conform with the specimen letter of
credit in Annex H
4. The full contract price shall be paid in the following stages:
v Fifteen percent shall be paid within thirty days of the Buyer receiving
a photocopy of the Export License issued by the Seller's government
v
Seventy- five percent shall be paid within thirty days of the Buyer's
bank receiving a complete set of shipping documents as listed in
Annex F
v Ten percent shall be paid within thirty days of the delivery of the
goods DDP
furnish: cung cap
bank guarantee: bao lenh ngan hang
73
YES
NO
YES
q NO
YES
q NO
YES
q NO
YES
q NO
6. The contract says this about force majeure and nothing more.
The Seller shall not be responsible for delay in the shipment of the Goods due
to the occurrence of any Force Majeure event. In case the occurrence lasts more
than ten weeks, the Buyer shall have the right to cancel the contract.
YES
q NO
YES
q NO
74
Part 6
guarantee: bao lanh, bao hanh
guarantee and warranty: = defect liabilities:
trach nhiOm d6i vdri khiem khuye't
75
As a general rule, incorrect use of "guarantee" causes trouble: use the word
only if you mean a third - party guarantee.
Many contracts avoid the problem by speaking of defects liability rather than of
warranty. This is exactly the right concept, as we shall see in the next section.
2. THE DEFECTS LIABILITY PERIOD
A warranty protects both seller and buyer. The seller is protected against the
accusation that he has breached the contract if some goods are defective. The
buyer is protected against defects in the goods he buys. Some defects are
apparent when the goods are delivered, but this is unusual. Most defects are
latent. Defects are of three kinds: workmanship, materials, and design. Failure
to meet specifications is a design defect. Problems caused by misuse or wear
and tear are not defects.
A defects liability provision (or warranty) puts into words what everyone
accepts: not all products are perfect on delivery. This provision covers defects
that are present at the moment of delivery. Normally quality control prevents
products with obvious defects from leaving the factory, so "defects" normally
means hidden or latent defects. Defects may be in workmanship, in materials,
or in design.
The defects liability period (or warranty period) is the period during which the
seller is liable for, and must make good any defects that are apparent on
delivery or that come to light later.
A defects - liability provision, then, covers defective workmanship, materials
and design. Just as important is what it does not cover. The two most common
exclusions are (a) fair wear and tear and (b) misuse by the buyer.
A specimen clause
The defects liability provision below is taken from a standard procurement
contract for a major aircraft project.
hidden:
an
latent: Sn
76
Warranty
The Supplier warrants that each Item supplied under this contract (and each
part thereof) shall at the date of its acceptance:
(i) be free from defects in material
(ii) be free from defects in workmanship including but not limited to
all manufacturing processes
(iii) be free from defects inherent in design including but not limited to
selection of materials, and
(iv) be fit for the purpose for which the Item is normally used
If it is discovered in the Item or in any part thereof any defect or deficiency,
then the Supplier shall either repair or replace such item or rectify such
deficiency
The warranty above is subject to the purchaser having adhered to the
procedures or instructions applicable to the use, storage, installation or
operation of the Item and expressly excludes all damage arising from wear
and tear to the Item in normal use
3. REMEDY
The seller normally wants to control over how he will correct defects. If the
buyer is allowed to repair the goods, the contract must specify the
circumstances exactly.
The defects liability provision allows the seller to put problems right. Usually
the seller can either repair or replace a defective product. Who decides? The
seller likes to include the words "at his discretion"; buyers normally resist this:
If, during the defects liability period, any defect comes to light in any item of
supply, then the seller shall, at his discretion, repair or replace the item
Another common choice, especially for superficial defects is reduction of the
price, with the consent of the buyer, of course.
77
Some contracts allow the buyer to repair the product, perhaps at the seller's
expense. If the repair simply involves replacing a throw - away module, the
seller is probably with this procedure.
Two specimen clauses
The provision below makes the seller's responsibilities particularly clear:
Defects Liability
The Seller shall warrant that the goods are made of the best materials, with
first class workmanship, are brand new, unused, and comply in all respects
with the quality and performance specifications given in Annex B. The seller
shall warrant that the goods, when correctly mounted and properly operated
and maintained, shall give satisfactory performance for a period of twelve
months
If any defect in materials, workmanship or design or any discrepancy with
specifications comes to light during the warranty period, and if the Buyer
makes the defect or discrepancy the subjects of a claim, the Seller shall at his
own cost and expense satisfy the claim, subjects to the agreement of the
buyer, in one of the following ways:
a. Agree to the rejection of the goods and refund to the Buyer the value
of the goods rejected
b. Reduce the price of the goods according to the degree of inferiority,
to extent of damage, or amount of loss suffered by the buyer
c. Replace the defective goods with new goods which conform to the
quality and performance specifications given in Annex B
d. Repair the defective goods to bring them in conformity with the
quality and performance specifications given in Annex B
e. Allow the Buyer or a third party appointed by the Buyer to repair
the defective goods and to bring them in conformity with the quality
and performance specifications given in Annex B at the Seller's risk
and cost
78
Such a clause is tough on the seller. Some contracts go even further especially
in a "Buyer's market". The following clause (from a spare - parts supply
contract) imposes an onerous duty on the seller:
When a latent defect or other warranty claim in the supplies occurs to the
same item of supply more than once, the Supplier shall, at its own expense,
correct or replace all like items already delivered or to be delivered
Sellers are unhappy about such unusual demands; they carefully price the risk
involved and increase the contract price accordingly. This is, of course, a
general rule: the tougher the warranty, the higher the contract price.
4. THE TIMING OF TIIE DEFECTS LIABILITY PERIOD
The defects liability period presents four separate timing problems. Many
contracts regulate only one. What are the other problems, should you regulate
them, and, if so, how?
The parties always fix the length of the defects liability period. Also important,
however, are (a) the time allowed to the buyer to notify the seller of a defect,
(b), the time the seller has to correct the defect, and (c) the period during which
the buyer can raise a legal action. Because national laws differ widely, the
parties often regulate these matters.
The buyer shall notify the Seller of defects without undue delay
or
If any such defect appears or damage occurs, the Employer of the Engineer
shall forthwith notify the Contractor thereof
extent: mCrc db
79
If both parties act in good faith, this "soft - edged" timeframe works well. If a
legal problem arises, the Anglo - American judge makes a fair estimate of
"undue delay", a :'reasonable time" or "forthwith". Such concepts are well
known to the law.
4.2. The Rectification Period
Rectification is similar to notification: the making good of defect without undue
delay" or "within a reasonable time" is a fair and normal contract requirement.
FIDIC (1987) says:
The Contractor shall make good the defect or damage as soon as practicable
and at his own cost @ 30.2).
4.3. The Legal action Period
After a lapse of time, legal claims become unenforceable. This "legal action
period" differs with the applicable law. In Germany, for example the Civil
Code (BGB) defines a legal action period equal to and concurrent with the
defects liability period.
5. WHO PAYS FOR CLAIMS UNDER WARRANTY?
Who pays for making defects good? Normally the seller, but there are
exceptions. Further, if a machine breaks down, the buyer can face enormous
consequential losses. How does the contract handle this problem?
There are no standard defects liability provisions. The parties must negotiate
carefully. The stronger the buyer, the heavier the seller's liability.
A product warranty usually requires the seller to make good defects "at his own
expense". Some warranties, as we shall see in the Comprehension Questions,
are less generous to the buyer. Sometimes, the buyer must share the costs of
repair, must pay for shipping defective parts, or must pay the cost of sending a
repairman to the site. There are no standard clauses - The parties must negotiate
carefully every provision of a warranty.
The real risk for the seller is not, in fact, the cost of repairing and replacing
defective goods. That risk is in the price. The big risk is that he has to
compensate the buyer for "consequential damage" or "consequential loss".
Consequential losses (often called indirect loss) are dangerous. Most sellers try
to include a clause that limits their responsibility to direct losses only, for
example: .
forthwith: tut thi, trong vOng 24 giet
concurrent: 00 hop vai
rectification: diet, chinh, sera chira
lapse: qua di
consequential loss: ton thgt gian tigp (tOn thgt 0 hau qua cem vigc gi dO)
80
A strict line must be drawn between defects liability and maintenance. The
danger of a poorly drafted defects liability provision is that it shades over into a
maintenance clause.
The seller usually words the defects liability provision so that his only duty is
the making good of defects. If the buyer wants maintenance, then the parties
normally conclude a separate maintenance contract.
We have seen that a defects liability provision is normally limited "hidden"
defects in workmanship, materials or design. Sometimes, however, the supplier
agrees to keep equipment running despite fair wear and tear, misuse, accident,
and even force majeure events. This is not a defects liability provision - it is a
maintenance clause.
Under a maintenance clause, the seller says: "Whatever the cause of the
problem, I will keep your machine in working order". Normally the buyer pays
extra for this expensive service. For this reason, maintenance is often the
subject of a separate contract. For the seller, the danger is that: he writes a
warranty so badly that he accidentally adds maintenance to his normal duty to
repair and replace. It is also dangerous for the buyer. If maintenance is
important, then the supplier must carry it out faultlessly merely fulfilling
warranty obligations is not good enough for example.
81
Maintenance Period
a. The maintenance Period is a period of one year starting from the date
of the take - over of the works by the Purchaser
b. To the extent that the Works shall comply in all respects with the
contract, the Seller shall execute all such work of repair, amendment,
reconstruction, rectification and making good of defects,
imperfections, or other faults as may be required by the Engineer
7. COMPREHENSION QUESTIONS
7.1. BEC delivers 200 sets of electronic scales for weighing chemicals. For
Defect in
materials
Defect in
design
No defect
q
q
7.2. These provisions are taken from a contract to provide a key electrical
intent: el& vgi, k doh
imperfection: CO khiam khuy6t
interaction: using haat dOng, phoi hop
associated documentation: tai li6u co lien quan
82
component for a rapid transit system (subway) in a country in the Far East. The
seller was unhappy about both provisions. Can you see why?
If, in the opinion of the Project Manager, it becomes necessary within the
Defects Liability Period to correct a defect in respect of Train design, design
of software or component parts of the Train, or in respect of the interaction
of the various elements of the Train, including the updating of all the
associated Documentation, the Project Manager may instruct the Contractor
within a time specified to correct such defect, free of charge, to the Employer
to the satisfaction of the Project Manager
In the event that the Employer procures spare parts from sources other than
the Contractor, provided such spare parts are fully compatible with the Train
and Works supplied by the Contractor, then the use of such spare parts shall
not invalidate the Defects' Liability provisions of this Agreement
7.3. Compare the two extracts below, and then answer the questions.
Warranty
The Supplier warrants that the Goods supplied under this contract are free of
defects of any kind. The Supplier will repair or replace any Goods of his
supply that are found to be defective during the warranty period
83
Agree
Disagree
7.4. Read this defects liability provision, and then answer the questions.
84
The Defects' Liability Period shall be extended by a period equal to the period
during which the Goods cannot be used by reason of the aforementioned
defect, but not so as to extend the Defects' Liability Period for more than
twenty - four months from the date of first delivery of the repaired or replaced
Goods
1. How long is the defects' liability period?
2. When does the defects' liability period begin?
3. When must defects be notified?
4. When must defects be made goods?
5. Is the defects' liability period increased by the period when the goods
cannot be used?
q YES
q NO
6. Does the defects' liability period begin again when the goods are repaired
or replaced?
q YES
q NO
q NO
85
The Defects' Liability Period shall be twelve months from the date certified
in the Taking - Over Certificate. The Seller shall make good with all possible
speed and at his own expense, any defect in or damage to any part of the
works which may appear or occur during the Defects liability Period.
Transportation costs and the cost of accommodation for the Seller's
personnel will be borne by the Buyer; Any increases in the price for repair or
for replacement parts that may have arisen in the period since the execution
of the contract will be charged to the Buyer; All further rights, and especially
the right to ask for ensuing damages, be it under this contract or otherwise,
are expressly excluded
Which of the following rights do you have? The right to:
q YES
q NO
q YES
q NO
q YES
q NO
q YES
q NO
q YES
q NO
q YES
q NO
q YES
q NO
q YES
q NO
8. Other (Specify).
86
Part 7
BREACH OF CONTRACT
87
is easy to give a figure for the harm, and so the contract specifies compensation
equal to the harm:
Delayed Payment
Liquidated Damages
If the Seller fails to supply any or all of the Goods within the time period
specified in the Contract, the buyers shall notify the Seller that a breach of
contract has occurred and shall deduct from the Contract Price per week of
delay, as liquidated damages, a sum equivalent to one half percent of the
delivered price of the delayed Goods until actual delivery up to a maximum
deduction of 10% of the delivered price of the delayed Goods
This clause covers the basic points: the breach of contract that triggers payment
of liquidated damages. It is required at that the buyer notify the seller that the
breach has occurred and of the amount of the damages and the ceilling. Many
contracts go no further than this. Unfortunately, however, several questions still
lack answers.
88
Liquidated Damages
If the Seller fails to supply any or all of the Goods within the time period
specified in the Contract for reasons for which he is at fault, then the Buyer
shall deduct from the Contract price per week of delay, as liquidated
damages, a sum equivalent to one half percent of the delivered price of the
delayed Goods
89
Or, more favorably for the buyer: "whether or not the Seller is at fault".
The payment of liquidated damages shall not excuse the Seller from full
performance of any of his obligations under this Contract
90
The payment of liquidated damages shall comprise the full and complete
satisfaction of any claim the Buyer may have against the Seller; Any further
remedy, be it under this contract, at law or in equity, is expressly excluded
This is the basic Anglo - American understanding. The buyer, on the other
hand, prefers wording that follows the German line of thought:
The payment of liquidated damages shall not limit the Buyer's right to seek
other remedies under this contract or otherwise; In particular, the right to seek
compensation for consequential damage shall not be excluded
Interestingly, the FIDIC Conditions make no direct reference at all to damages,
or to penalties. The result of late delivery is simply a reduction of the contract
price for each day of delay. The key wordir g is this:
Delay in Completion
... Such reduction shall be to the exclusion of any other remedy of the
Employer in respect of the Contractor's failure to complete within the Time
for Completion
3. TERMINATION
When delay becomes intolerable, the buyer may wish to end the contract.
quick, clean death is better than a long, messy one. How is it achieved?
A full termination -fir - cause provision specifies exactly when the buyer can
end the contract; often it also protects the seller's rights.
According to at:: UCC, cancellation occurs when one party asks a court to end
a contract because the other has breached it. Cancellation is expensive, mesry
and unpredictable. For the seller, the danger is that he/she may receive no
payment for services rendered or goods delivered.
Termination (as the UCC conceives it) is an altogether tidier procedure:
to tt3 exclusion: d6i v6i viec loci trig
intolerable: khong the tha tin? duvc
conceive: nghi ra, tvang tuvng
termination - for - cause: k6t thQc co nguyOn cd
91
contract provision states the circumstances under which the buyer can end or
terminate the contract. Such termination is often "for convenience": in this case,
the contract includes a winding - up procedure for final deliveries, final
payments, and so on. An example:
Termination for Convenience
1. The Purchaser may, by written notice to the Supplier, terminate the
contract in whole or in part, at any time for its convenience; The notice
of termination shall specify the extent to which performance of the work
under the Contract is terminated, and the date upon which such
termination becomes effective
2. The Goods that are complete and ready for shipment within 30 days after
the Supplier's receipt of the notice of termination shall be purchased by
the Purchaser at the Contract terms and prices
Termination 'for default" means that, under closely specified circumstances,
the buyer can end the contract:
Termination for Default
The Purchaser may, by written notice of default sent to the supplier, terminate
this contract in whole or in part:
a. If any delay in delivery due to force majeure exceeds 75 days; or
b. If any delay in delivery for reasons other than force majeure exceeds
30 days
This clause states two events that can trigger termination, but (at least) two
problems remain: (a) how does the buyer obtain the goods he contracted for and
urgently needs, and (b) how is the seller compensated for deliveries made so
far? The clause might go on to specify:
If the Purchaser terminates the Contract in whole or in part, then the
Purchaser may procure, upon such terms and in such a manner as it deems
termination "for default" : ke't th6c vi kh6ng c6 kith 'fang
the Wan
expire: het han
92
93
Delay
For each week of delay, the Seller shall pay 1% of the contract price up to a
maximum of 10% of the contract price
This wording puts a money ceilling on the seller's liability for delay. Another
common ceilling is the extent of insurance cover.
Compensation
The Seller shall be obliged to compensate and save harmless the Buyer for
personal injury and property damage to the extent that the damage concerned
is covered by the Seller's insurance. On the Buyer's request, the Seller shall
hand over for inspection to the Buyer a copy of all relevant insurance policies
Similarly the seller often tries to limit his total liability under the contract:
Total Liability
The total liability of the Seller for all claims for damages made against him
by the Buyer under this Contract or otherwise shall not exceed 10% of the
Contract price
Or
Aggregate Damages
The aggregate amount of all damages (excluding liquidated damages as
referred to in @ 23 of this Contract) costs and expenses recoverable from the
money ceilling: s6 tion 161 da
insurance cover: pham vi bao hiem
total liability: trach nhiem t6i da
aggregate damage: ton that tong hop
94
Notification of Defects
If within twenty - one days of receipt of any consignment from the Seller, the
Buyer does not notify the Seller that the consignment is defective and submit
samples as evidence of defect, then the consignment shall be deemed to
comply in all respects with the specifications and the Buyer shall forego all
rights to reject the consignment
Such provision are usually enforceable provided they are not hidden or
obscurely worded * .
95
For the seller, risk attacks down many roads. The seller tries to block of as
many of these roads as possible. One ocmmon roadblock was discussed in Part
4: the force majeure provision.
Force Majeure
Seller's Liability
The Seller shall indemnify and save harmless the Buyer against any loss or
damage whether direct or indirect suffered by the Buyer as the result of
defective or faulty goods delivered by the Seller
Unusual roads are open in many contract situations; again the seller tries to
block them off. In the clause below, for example, a contractor working on a
power plant in South Africa tries to limit his liability for sabotage: he says, in
effect, that sabotage by his workers is not breach of contract:
96
Contractor's Liability
The Contractor shall be liable for all acts and omissions of his servants,
agents, workmen and personnel. However, damage caused by the willful
intent of Contractor's servants, agents, workmen and personnel shall not give
rise to any claim for compensation for the Contractor
A common problem in international contracts is patent rights. If a French
supplier sells a machine to Verbena and a law suit begins in Verbena because a
local company claims patent rights over part of the machine, then who is liable
and who pays? Both the seller and the buyer have an interest in blocking off
this road. The clause below is from a contract between a Chinese importer and
a German supplier of steel-making machinery. The clause favors the Chinese
buyer:
Settlement of Claims by Third Parties
The Seller shall be responsible for taking up and settling all challenges,
claims or law suits brought by individuals, manufacturers, companies and
authorities of any country in connection with the know - how transferred to
the Buyer under this Contract. The Buyer shall take no responsibility, legal,
financial or otherwise, for such challenges, claims or law suits
The general rule: Wherever you foresee a risk in the contract, draft a roadblock
clause to reduce the risk or exclude it altogether.
4.3. The Iron Curtain
willful: c6 .}"/
97
Limitation of Liability
The Buyer's sole remedies for claims of any kind with respect to the products
furnished under this Agreement and with respect to all other performancs by
the Seller, under or in connection with this agreement or with respect to or in
any way connected with the manufacture, sale, handling use, repair,
maintenance or replacement of the products including liability arising out of
contract, strict liability, negligence, or any other tort shall be limited to those
remedies prescribed in the warranty section of this Agreement
Exclusive Remedies
The Employer and the Contractor intend that their respective rights,
obligation and liabilities as provided for in these Conditions shall alone
govern their rights under the Contract and in relation to the Works.
98
deliberately: c6k
tort: t6n hai
patent licence: Gigy phep sef dung bang sang chg.
licensee: Nguti dutc cap gigy phap
licensor: Nguti cap gigy phap
long as the other side agrees to it. An indemnity simply says: "If anyone makes
me pay, then I will pass the bill to you, and you can pay it". The example below
comes from the procurement contract for an aircraft project:
Product Liability
The Supplier shall fully indemnify and hold harmless the Purchaser from and
against any loss, liability or claim in respect of personal injury to, or the
death of, any person or any loss of or damage to any property of any kind
whatsoever arising out of or in connection with the possession, ownership,
use and operation of the Item by the Purchaser or any third party approved
by the Purchaser whether such Item is installed in an Aircraft or not
The following clause is (lightly) adapted from a contract for the construction of
a hydroelectric project.
Fine Payable
If the Contractor fails to complete the work at the fixed date, a fine shall be
imposed upon him for the period of delay until the work is completed. The
fins shall be as follows:
2% for the first week, or any part of it;
4% for the second week, or any part of it;
6% for the third week, or any part of it;
99
8% per week for the fourth week, or part of it, and for all succeeding
weeks.
The fine shall be calculated on the total contract value.
1. The clause uses the word "fine". Does that tell you with certainty what
kind of clause your are looking at/ (Penalty clause or liquidated damages
clause?)
q YES
q NO
2. How long after a delay does the contractor lose 100% of the contract
price?
... Weeks
3. Do you think this clause is a penalty clause or a liquidated damages
clause?
q PENALTY
q LIQUIDATED
q DAMAGES
4. If the applicable law is the law of the State of New York, would the judge
enforce this clause?
q YES
q NO
5.2. Damages
Is the clause below a liquidated damages clause? If no, what is it 9
Damages for Delay in Delivery or Supply
Should the contractor delay delivery of any item of supply beyond its
specified due delivery date under the contract, the Contractor acknowledges
that, as a result, the Employer will suffer loss and damage, and the Contractor
agrees to pay to the Employer an amount in damages to compensate for such
loss and damage for each day by which actual delivery exceeds the specified
due delivery date under the Contract
5.3. Without Prejudice
How do you think a seller would try to modify the following clause
100
If the seller fails to deliver the goods on the date specified in the contract, the
buyer shall, without prejudice to its other remedies under the contract, impose
as liquidated damages a sum of 1 per cent of value of the delayed goods per
week up to a total of 10 per cent of the total value of the delayed good
5.4. Material Breach
q NO
q NO
prior to: fru&
advance: tien Cmg trutc
101
4. This clause is taken from a contract for the supply of goods and
services. How were the goods apparently paid for under this contract?
5. The clause speaks of "compensation". Is this:
q a. Compensation for the loss of the contract?
q b. Compensation for goods and services supplied so far?
6. Will the Supplier be compensated in full for the work he has done so
far?
q YES
q NO
Study this clause from a consultancy contract. The consultant examined the
heavy electrical equipment requirements of a government department.
Penalty
q NO
2. If the Consultant pays the penalty, can the Ministry also sue him for
compensatory damages?
q YES
q NO
3. If the answer to (h) is "Yes" can the Ministry claim payment in full
apparently: rO rang
consultancy: hi van
portion: Wien, xult
102
q YES
q CONSULTANT
5.6. Contract Terms Inc
Over a period of years, Smith hired equipment from South Wales Switchgear.
Each rental was the subject of a simple form contract provided by South Wales
Swithchgear. The contract stated that General Conditions of hire were available
"on request". In fact, South Wales had produced three editions of these
"General Conditions", the most recent in March 1990.
In 1987, a machine hired by Smith broke down and Smith lost a lot of money as
the result. Smith demanded compensation from South Wales. South Wales
pointed to their current (1990) General Conditions which disclaimed all
liability. Smith sued. The issue was this: Was South Wales' disclaimed all
liability part of their agreement or not?
Smith had never requested a copy of the 1990 General Conditions; however, he
had had a dispute in 1989 with South Wales Swichgear, and he had received at
the time a copy of the 1989 General Conditions (Smith v. South Wales
Switchagear / All ER 18, 1988, modified).
1. What suggests that South Wales' General Conditions are part of the
contract:
2. If the Conditions are part of the contract, which version?
q 1989
q 1990
103
Part 8
FORMATION OF CONTRACTS
1. SOME LEGAL ASPECTS
104
Almost every action a buyer takes has some legal significance, so he does need
to know the consequences of his actions, and must be able to recognize
problems requiring expert legal assistance.
Many orders are preceded by several meetings between the Buyer and the
Seller, settling specifications, approving samples, establishing prices, etc.
Unless these discussions negotiations are conducted with care, the parties could
find themselves contracted orally so the subsequent order becomes merely a
document for accountancy purposes. There is a real danger during these
meetings of creating a legally binding contract with the enthusiasm of
concluding the deal. Remember, as we said before, contracts for the supply of
goods and services do not have to be in writing to be legally enforceable.
Another important point to bear in mind in respect of oral contracts is that any
limitation placed on an individual's power to commit his organization is purely
an administrative device and will not affect the validity of the oral contract
unless the other party knews of the limitation. Unless care is taken during the
negotiation, binding oral contracts in excess of one's limits of authority - either
on the part of the Buyer or, as is equally important, on the part of the Seller can easily be created.
On the other hand many orders, especially for standard components, are placed
without any prior negotiation. They are acknowledged by the Seller. The goods
are delivered, the invoice is passed for payment, and then something is
discovered with respect to the goods which was not quite as expected the Buyer
on questioning the Seller is referred to Seller's Conditions of Sales. Someone
forgot to study the Acknowledgement of Order and the Buyer finds himself
faced with a conflict of conditions.
It is thought that this does not happen in business organisations but it is
surprising how many times it does happen with the pressures Buyers find
themselves under today.
To create a contract there must be an "offer" and an unqualified "acceptance" of
that "offer". The "offer" can be either the Seller's Quotation or the Buyer's
Order depending on which document is the initial one. The "acceptance" can be
either the Buyer's Order or the Seller's Acknowledgement issued in
consequence of an "offer". This is the most common way to conclude a
contract. Unfortunately, in practice, many transactions take place without these
formalities having been completed. However, big contracts are often signed in
to take precedence over: tinh trtrOc den
preced: di trutc, thing trutc
merely: chi la
105
two identical copies by both parties. Every clause has been discussed and
negotiated upon. The risks for conflicting statements in the documents have
been carefully examined but the risks for interpretation disputes can not be
eliminated.
According to the general conditions ECE 188 there are only two situations
when a contract is considered to have been formed.
1.1. Paragraph 2.1. says
"The Contract shall be deemed to have been entered into when, upon receipt of
an order, the Vendor has sent an acceptance in writing within the timelimit (if
any) fixed by the Purchaser".
This says that a contract has been formed when the buyer has issued an order
and the Seller has accepted or acknowledged it. The Seller's written acceptance
or acknowledgment shall be sent by the Buyer within the stipulated time. If
there is no such time limit the Seller is obliged to have sent his acceptance
within a"reasonable" time.
1.2. The other situation is described in paragraph 2.2
"If the Vendor in drawing up his tender has fixed a timelimit for acceptance, the
Contract shall be deemed to have been entered into when the Purchaser has sent
an acceptance in writing before the expiration of such timelimit, provided that
there shall be no binding Contract unless the acceptance to reache the Vendor
not later than one week after the expiration of such timelimit".
The Seller has sent his quotation in which he has stated a timelimit within
which the Buyer must have acceptance to reach the Vendor not later than one
week after the expiration of such timelimit".
The Seller has sent his quotation in which he has stated a timelimit within
which the Buyer must have accepted the offer. The contract is here entered into
when.
- the Purchaser has sent an acceptance in writing
- the acceptance - Order - has been sent within the timelimit.
- the acceptance is received by the Seller not later than one week after the
expiration of such a timelimit.
conflict of conditions: xung dOt giva cac diet' ken
initial: ban deli
identical: giong het nhau
eliminate: /001)6
106
The two rules require activity from the party which has received the order or
the quotation. This stresses the fundamental rule: never to think a party's
passivity binds him.
When the Buyer's Order is the Offer, the Seller's Acknowledgment, if
unqualified i.e. it does not differ in any essential point from the details of the
Order, is the acceptance and a contract exists between the parties. However, if
the Acknowledgement of Order shows that the Seller intends his own
conditions to apply then this constitutes a counter - offer and no contract exists
at that point. A statement on the Order excluding the Seller's Conditions is no
protection for the Buyer and does not legally affect the counter - offer situation.
Always check for a possible conflict of conditions.
An offer may be accepted by conduct, e. g. by dispatching goods in response to
an offer to purchase (an Order) without prior acknowledgement of the order.
Similarly, an offer to supply goods made by the Seller, (this offer may be in the
form of a counter - offer to the Buyer's Order) can be accepted by the Buyer by
the latter taking delivery of, and using, the goods. Where a contract has been
formed by conduct, it is often difficult to say exactly what terms have been
agreed. The Buyer may find himself bound to the Seller's conditions.
Post contract negotiations cannot affect the terms of the contract unless those
negotiations themselves result in an offer and an acceptance constituting a
contract, the intention of which being to amend the previous contract.
The existence of the contract does not necessarily mean that all of the
obligations of the Buyer and the Seller have been fully specified at the time of
forming the contract. There are instances such as variation of orders where,
under the terms of the contract themselves, the subject matter of the contract
may be changed according to procedures set out in the contract.
There is a situation, however, where the roles of Seller and Buyer are, to a
degree, reversed. This is where an inquiry and a tender are involved. An inquiry
is not an offer, it is an invitation to do business (in legal terms "to treat"). The
Seller's tender is the offer and the Buyer's order, the acceptance. Providing the
terms of the tender and the order agree there is a contract, and an
acknowledgement of such an order is merely a courtesy and cannot affect the
contract. Therefore, where a tender and an order have been exchanged and a
contract formed, neither party can introduce any new terms.
The order in which a contract document shall take precedence over other
107
documents should normally be stated in the contract. Such a clause could have
the following wording:
"The folowing documents shall be deemed to form and be read and construed
as part of this Agreement, viz:
a. The Special conditions
b. The Tender
c. The Tender Invitation
d. Technical specifications
e. General conditions;
The conditions of The Contract shall prevail over any of the referred
documents. The above contract documents are to be taken as mutually
explanatory of one another but in case of ambiguities or discrepancies the same
shall taken precedence in the same order they are listed in".
2. THE OFFER
An offer is usually defined as an act on the part of one person whereby he gives
to another the legal power of creating the obligation called contract.
The offer must be carefully distinguished from preliminary negotiation. An
offer can be accepted and can thereby become a contract. Preliminary
negotiations may lead to the making of an offer.
The offer begins to run at the time it is received by the person to whom the
offer is made, unless otherwise stated in the offer. It continues in effect until it
accepted or rejected by the recipient, until it is withdrawn by the offerer, or
until it lapses.
Once an offer is terminated, by whatever means and for whatever reason, it
cannot be revived.
The form of the offer is also important. All documents intended to be
incorporated must be expressly referenced and made a part of the offer. Mere
attachment to or enclosure with the offer will not be sufficient.
An offer if made by a vendor can be equally valid, either in writing or verbally.
108
109
conflict situations. Therefore you should avoid making any changes in the
"system".
6. ECE GENERAL CONDITIONS
The most common general conditions used in international trading are issued
by the United Nations Economic Commission for Europe (ECE) in cooperation
with the International. Institute for the Unification of Private Law (Unidroit)
and the International Chamber of Commerce (ICC).
They are referred to as "General Conditions for the Supply of Plant and
Machinery for Export", ECE 188 for Western European countries and ECE 574
for Eastern Europe. (See Appendix on Page 440).
The main differences between the two are:
- the transfer of risks of damage to the goods, in case ECE 574 does not
refer to Incoterms.
- reliefs (force majeure), in case ECE 574 does not include any examples
of cases of reliefs.
- the arbitral proceedings shall according to ECE 574 not automatically
be conducted according to the arbitration rules of the ICC.
7. APPLICABILITY
110
will: y chi
keynote: then ch6t
acquisition process: qua trinh mua ban
Always specify in the inquiry order that it is a condition of the order that the
standard conditions are to be accepted. If the Seller raises any objections, these
can then be the basis for negotiation, subject to legal guidance. Avoid
attempting to amend the Seller's conditions to meet one's own requirements.
The above represents the ideal. It is recognised that on occasions, as a matter of
commercial expediency, risks will have to be taken and departures made from
the practice and principles set out above. Such deviation, however, should be
the exception rather than the rule.
9. COMPREHENSION QUESTIONS
1. The other
to the contract
law.
is getting ?
exception: ngoai le
111
2. Delivery
i.
6
will delivery be made?
ii. What
7
as delivery?
iii. What is the
8
of delivery?
iv. When do risks and title pass?
v. What
9
is excusable?
vi. What are the consequences of unexcused
10
11
i. What
12
as defects?
ii. What does not count as defects?
2. Remedies
i. What
13
action is required?
ii. Who decides what corrective action to
3. The timing of the Defects
15
14
period.
party?
26
?
_ _
_27-
7. Entire agreement
_ _
8. Language
Which language will be authentic?
9. Total Liability
i. Can the seller set a ceiling on his total liability under the contract?
31-- all rights and duties not expressly included?
ii. Can the seller
10. Settlement of Disputes
agreement clause worth including?
32
i. Is an
ii. Is a conciliation procedure worth including?
a dispute themselves, how will it be
33
iii. If the parties cannot
settled?
113
Part 9
Why should five unpackaged contracts be written when one "umbrella" contract
can also do the job? One obvious advantage of unpackaging is that local
companies can carry out part of the constructions work; this increases local
skills and saves foreign currency.
A popular approach to large construction contracts today is for the employer
and the contractor to join forces and form a joint venture. Let's take an
example: a small island in the Vietnam is made of almost pure marble. Vietnam
Rock approaches an Italian quarrying company for know-how necessary to set
up the quarry and export the marble. It can draft the specifications and invite
tenders for the construction work.
Thus we have three approaches to construction contracts:
1. The Turn-key project
2. The unpackaged project
3. The joint Venture contract
All the three approaches generally involve Tendering: inviting suppliers or
contractors to bid for the job.
Tendering, in the best international practice, is a highly regulated procedure. In
brief the system is this: in an optional first step, the employer (i.e. the party
paying for the work) invites companies, usually by means of a public
advertisement, to prequality for tendering. Companies that want to tender must
now show (a) that they have the expertise to do the job, and (b) that they meet a
number of formal requirements, for example they must be registered
companies, have no record of bankruptcy, and so on.
Next, the employer issues an invitation to tender. This invitation is often public,
or it is perhaps restricted to certain firms, for example, those who prequalify, or
companies on a list of acceptable contractors. A company that wants to tender
receives a list of the tender documents, specimens of documents, and a
statement of the tendering procedure.
An effective tendering system also establishes sub-procedures to regulate such
issues as:
1. The submission of tenders that comply with the invitation;
2. The submission of alternative or partial (non-compliant) tenders;
3. Withdrawal of a tender;
4. Posting of guarantees;
5. Opening, examination and evaluation of tenders;
6. Acceptance and rejection of tenders.
115
Tendering and negotiation: the two procedures are hard, but not impossible to
reconcile. The most important principle is that the tendering procedure must not
become so rigid that it makes a first-class agreement impossible. Well
conceived tenders often leave specially sensitive areas such as training open for
later negotiation with the successful bidder.
The effect of tendering process on the shape of the contract is well known: a
short contract and many volumes of contract documents.
The government of Vietnam hereinafter called the Employer and the Supper
group hereinafter called the Contractor hereby agree that in consideration of the
price specified in Annex B being paid to the CONTRACTOR by the
EMPLOYER, the CONTRACTOR shall complete the work specified in Annex
A in accordance with the agreed General and Special Conditions
Singed, for and on behalf of...
A handful of words are, often, the "contract". The technical specifications in the
Annexes are beyond our present scope. What lies within the General and
Special Conditions is explained in the next section.
2. THE PARTIES
In a simple sale, two parties are involved, buyer and seller. In building a plant,
countless technical experts, subcontractors and suppliers all confuse the picture.
How does the contract regulate so many different interests and levels of
control?
The employer (the buyer) uses an engineer to supervise the works. The contract
must specify in careful detail the relationship between the engineer and the
contractor (the seller). The suppliers and subcontractors are normally within the
responsibility of the contractor; the contract considers their work as if it were
the contractor's own work.
Construction of a large plant takes many years and involves often hundreds of
suppliers and subcontractors. For these two reasons, time scale and complexity,
a plant construction contract differs, at least superficially, from the "standard"
Purchase Contract we have discussed so far.
The principal parties to a plant construction contract are two: the Employer (or
the purchaser) and the constructor (or supplier). However, other parties, the
engineer and any number of subcontractor, play a central part.
117
who oversees the works on behalf of the employer. Often, more than one kind
of expert is needed: an architect perhaps, a civil engineer, an electrical
engineer, and so on. These specialists work directly under the engineer. (Some
international contracts call these specialists the engineer's representatives) With
so many lines of control running between employer and'contractor, conflicts are
a matter of certainty.
Obviously the contract must specify the exact degree and nature of this control.
Some extracts from the Conditions of Contract for Electrical and Mechanical
Works published by FIDIC offer a possible model:
Engineer's Duties
2.1. The Engineer shall carry out the duties specified in the Contract...
Except as expressly stated in the Contract the Engineer shall have no authority to
relieve the Contractor of many of his obligation under the Contract
2.2. The Engineer's Representative shall be appointed by and shall be responsible
to the Engineer and shall carry out only such duties and exercise such
authority as may the delegated to him by the Engineer
2.3. The Engineer may from time to time delegate to the Engineer's
Representative any of the duties vested in the Engineer and may at any time
revoke such delegation
Any such delegation or revocation shall be in writing and shall not take effect
until a copy thereof has been delivered to the Contractor and the Employer...
2.4. Whenever under the Contract the Engineer is required to exercise his
discretion by:
a. Giving his decision or consent, or
b. Expressing his satisfaction or approval, or
c. Determining value, or
d. Otherwise taking action which might affect the rights and obligations of
the Employer or the Contractor;
He shall exercise such discretion impartially within the terms of the Contract and
having regard to all the circumstances
2.5. The Contractor shall proceed with the decision and instructions given by the
Engineer in accordance with these conditions
2.6. The Contractor may require the Engineer to confirm in writing any decision
or instruction...
118
During construction, the Building site is under the control of either the
employer or the contractor. Each must allow the other's access to the site. The
contractor obviously needs access to carry out the works, and the employer
needs access to inspect the progress of the works. To prevent
misunderstandings, most contracts regulate this access. Where several
contractors and subcontractors are working on one site under several contracts,
access provisions require careful coordination.
Provision of Construction Equipment
Who provides the construction equipment? It is easier for the employer to make
the contractor responsible for selecting and providing the equipment, but it may
be less expensive for the employer to provide the equipment himself. In any
case, this question must be regulated in the contract.
Insurance
Fixing the price and payment terms for a project that is to run for many years
and involves many risks is extremely difficult. What techniques insure that the
employer gets a fair deal?
The more risks the contractor takes, the higher the contract price is. Skillful
pricing shares the risks and lowers the contract price. Payments are made in
stages: this is a problem for the accountant rather than for the lawyer.
As in simple purchase contracts, the main duties of the employer are found in
the price and payment provisions of a construction contract. The time scale and
complexity of the project create a number of problems.
4.1. Price of the Contract
The lump-sum price is stated in advance as a total for the whole project. This is
the normal, familiar method for fixing the price for a job. In calculating this
price, the contractor looks at all the risks he is taking in performing the work.
The contractor puts a price on each risk and, if possible, adds it to the total
contract price. Because they cover so many risks, lump-sum prices are usually
high. Obviously, reducing the contractor's risk is one way to reduce the contract
price. Two approaches to reducing risk are common; unit price and costreimbursable price. Both are different from the lump-sum price in that they are
not fixed in advance for the total project.
Unit Price
Unit prices are agreed prices for certain units of performance, for example:
cubic meters of concrete poured, work-hours used in excavation work or in
digging a tunnel. With this method of pricing materials, in the construction of a
tunnel, for example, no one knows what will happen when tunneling begins.
The tunneling contractor needs a large safety margin, so he quotes a high price
for a lump-sum contract. The figure for a unit-price contract (price per workhour) is usually lower because it carries no risks for the contractor. The
employer, on the other hand, accepts a risk. If the work is quickly done, he
122
saves money. If there are major problems, he loses money. The problem for the
employer is obvious. However, if the contractor is paid by the hour, he has no
incentive to work quickly.
Cost Reimbursable Price
-
A well drafted contract creates a procedure for changing the scope of the work.
It also regulates the necessary adjustments to the contract price. A mechanism
for price revisions is necessary when the value of a currency is likely to change
or when inflation is necessary when the value of a currency is likely to change
or when inflation in one country is likely to upset the balance of the contract.
The final shape of a construction project seldom follows the original designs
exactly. Let's take the Island marble quarry as an example.
The Italians are interested in the project because they want a source of marble
in East Asia-export from Europe is uneconomic. A harbor is planned for Island
in a small bay. To allow heavily loaded ships to leave the harbor, the contractor
must blast a deep channel with dynamite.
Unfortunately, a reef of rare coral blocks the entrance to the bay. The Ministry
of science and Environment hears about the plan to destroy the reef only days
before dynamiting is scheduled, the Ministry immediately forbids the
destruction of the coral. The plans must be changed. In another development,
half-way through the project, Vietnam Airlines begins a helicopter service to
the islands. The plans for the administration building are upgraded to include a
helicopter landing pad. Finally, a plan to drill a deep well is abandoned when
test drillings produce only salt water. Three variations are now necessary, each
one of a different type:
1. Alteration
2. Addition
3. Deletion
These variations all require changes to the scope and to the price provisions.
The contract (or the general conditions) must establish a mechanism for making
such changes. Some of the toughest and most expensive disputes occur when a
change is necessary, but the parties did not agree in advance on a mechanism
for change. How does such mechanism work?
First, does the employer have the right to require major changes in the contract?
Some contracts are very clear on this subject:
Variations
The term "variation" as used in this contract means any change in the scope
of construction or technical characteristics of the equipment, materials or
construction services to be supplied by the Contractor
Any variations ordered by the Employer must be implemented by the
Contractor in accordance with the provisions of this article
124
Price Revisions (i.e., recalculations of price for eactly the same work) are a
feature of any contract that runs over a prior of years. Price revisions have two
main sources: (a) an increase (or less commonly a decrease) in the price of the
materials or services, and (b) a change in currency rates.
Where the contractor fears rapid price increases, he will not tender on the basis
of a fixed and constant price. He will want price to be indeed. In principle,
indexation is simple: if the price of a commodity, for example cement,
increases by 10%, then the price calculation exactly reflects this increase. For
example, if cement costs accounted for 20% of the original price, then a 10%
increase in the cost of cement raises the total contract price by 2%.
125
127
For building works, on-site inspection takes the place of scheduled tests. This
kind of day-to-day inspection is performed by the engineer. The contract
usually includes the details of inspection procedures in the clause that describes
the duties of the engineer or the engineer's representative.
The final testing procedure most often occurs immediately before take-over or
acceptance. The contract must specify this testing procedure closely. The
normal steps are set out:
1. A procedure for naming the day on which the final tests take place.
2. A procedure for continuing tests without the other party (if necessary).
3. A procedure for repeating the tests if the works fail the tests.
4. Consequences of repeated failure of the test.
128
129
CONTRACTUAL DOCUMENTS
Article 1 Object of the contract and Scope of Supply
Article 2 Contractual Documents
Article 3
130
Article 1:
Object of the contract and scope of supply
131
Article 2:
Contractual documents
132
Article 3:
Obligations of the seller
3.1. The Seller shall be responsible for the project concept, designing and
technical documents to be supplied to the Buyer. These documents are
specified in Annex 7 and shall be supplied in 5 copies of each kind of
document.
3.2. The Seller supplies equipment, materials and spare parts for the project to
CIF Danang port as per scope of supply mentioned in Annex 3.
3.3. The Seller shall deliver the equipment, materials and spare parts in
conformity with standards and specifications mentioned in Annex 3, to
Danang Port on CIF basis as per Article 5 of the present Contract.
3.4. The Seller shall provide all instructions necessary for the construction of
the plant building as per Annex 7.
3.5. The Seller shall undertake to conduct and supervise the erection of
equipment and to carry out the test run, commissioning and operation of
the plant as per Article 11 of the present Contract.
3.6. The Seller shall undertake to train the Buyer's personnel as specified in
Annex 6 of the Contract.
3.8. The Seller shall supply to the Buyer without any extra charge equipment or
machine parts or carry out replacement or repair, if necessary, in order to
complete his obligations, provided that such supply, replacement or repair
are not the obligations of the Buyer under this Contract.
133
Article 4:
Obligations of the Buyer
134
Article 5:
Conditions and time of delivery
5.1. The Seller shall deliver equipment, materials and spare parts mentioned
in Annex 3 and Annex 4 and technical documents mentioned in Annex
7 of the Contract in accordance with the dates mentioned in Annex 8
5.2. Delivery of the equipment materials and spare parts is to be made on the
basis of CIF Danang port, SRV (in accordance with the INCOTERMS
of 1953, Edition 1990)
The Seller shall try to avoid transshipment. If this is impossible, the Seller
shall inform the Buyer thereof and make suitable arrangement. The Seller is to
bear and pay all costs, fees, taxes and expenses regarding the transportation of
the goods to Danang port, SRV. The goods shall be insured from the Seller's
warehouse to the Buyer's warehouse at Danang port
The vessels carrying the goods supplied under the Contract shall comply with
the following conditions:
Such vessels have been in use for not more than 15 years or must be classified
as first class for ocean going ships by one of the international classification
societies as mentioned in the Lloyd's Instute classification clause 1.7.1978
Shipment in containers to be allowed
The Seller shall at least two weeks before shipment inform the Buyer by cable
or telex of compliance of the vessel with the foregoing and nationality thereof
The Seller shall in favour of the Buyer insure the equipment materials and spare
parts shipped under the Contract 110% (one hundred and ten per cent) of the
CIF contract value in accordance with Lloyd's Institute Cargo Clause (all risks)
payable in the currency stated in the Contract with a reputable insurance
company
5.3. The equipment shall be delivered with full accessories and spare parts in
accordance with the delivery schedule to ensure the erection and testing
of the project on time and in the most rapid and rational manner
5.4. The date of the relevant clean on board Bill of Lading is considered as
the delivery date of the goods. In case of airfreight of the technical
documents the airway bill will replace the ocean Bill of Lading and the
date of the airway bill is considered as delivery date for technical
documentation
135
5.5. The Seller shall notify the Buyer by cable or telex 10 (ten) days prior to
shipment of the goods. The contents of notification shall be as follows"
- Contract number
- Port of shipment
- Scheduled delivery date
- Value of the goods to be shipped
- Number of cases and/or containers
- Total gross weight
- Total volume
- Other information and/or instructions
The contents of the above cable or telex shall be confirmed by registered letter
within 10 (ten) days after dispatching of the cable or telex
5.6. The Seller shall notify the Buyer by cable or telex of the shipment
within 5 (five) days after the sailing date of the vessel from the port of
shipment
The contents of such cable or telex notification shall be as follows:
- Contract number
Confirmation and/or variation, if any, of the telex under paragraph 5.5
- Item number of equipment and materials shipped in accordance with
Annex 3
- Number of cases and/or containers
- Total net/gross weight in kg of each container or case
- Total volume in m 3
- Note concerning the cases of over-dimensioned and over-weighed
equipment such as from 10 (ten) tons and more in weight and/or
from 10 (ten) meters in length and/ or from 3.2 meters in height
and/or from 2-8 meters in width.
- Total value of the goods delivered
- Date and number of Bill of Lading
The above mentioned cable or telex notifications shall be confirmed by
registered airway letter which shall be sent to the Buyer within 3 (three) days
after the date of dispatching the cable or telex
136
5.7. Within 10 (ten) days after the sailing date of the vessel the Seller shall
send to the Buyer's address by courier service the following documents:
- Commercial invoice:
4 copies
4 copies
- Packing list:
4 copies
- Inspection report:
3 copies
- Certificate of Quality:
3 copies
- Certificate of Quantity:
3 copies
Besides one set of packing lists, kept in a strong and waterproof envelope, shall
be sent through the captain of the vessel
5.8. In case of delivery by air the Seller shall inform the Buyer by cable or
telex 10 (ten) days before dispatching the goods of the number of
Contract, the expected delivery date, place of dispatching, description
of the relevant goods and its quantity
5.9. The Seller undertakes to advice the buyer by cable or telex on the same
day of dispatching of the relevant goods the following:
- Number and date of Contract
- Number and date of airway bill
- Name of air transport company and flight number
- Description of the goods
- Number of cases
- Net/gross weight
The Seller shall send to the Buyer, together with the goods, all necessary
transport documents such as copy of airway bill and packing list to ensure a
safe receipt of the goods at the airport of destination
5.10. The Seller shall be responsible for any damage and/or any additional
expenses caused by the absence of the above mentioned notification.
5.11. All expenses related to the notification as well to obtaining and
dispatching of all documents as mentioned in this Contract shall be
borne by the Seller
5.12. On deck storage shall be allowed for items which according to
international commercial customs are not or cannot be stowed under
deck
137
5.13. After the arrival of the goods at the port of destination the Buyer has
the right to entrust the inspection of quantity and/or quality to the
"Vietnam Superintendence and Inspection Company VINACONTROL" with respect to the goods the packing of which is
damaged or defective. This inspection shall be done by.
VINACONTROL itself
A report thereof shall be issued by VINACONTROL as an evidence for making
a claim against the Seller
A Seller's representative can be present at the inspection. In case there are
damages and losses of the goods during the transportation, loading and
unloading which are not imputable to the Seller. The Buyer, in the period of
insurance, shall invite VINACONTROL to inspect the said goods and supply
the Seller with claim documents concerned enables him to make claim against
the carrier or insurance company and to re-supply at his own expenses. The
Buyer with the replacement goods on the conditions stipulated in his Contract
within 6 (six) months from the date of receipt of claim documents supplied by
the Buyer
Claim documents shall consist of:
- COR (Cargo Outturn Report)
- ROROC (Report on Receipt of Cargo)
- Survey report
- Bill of Lading
- Packing list
- Other necessary documents
138
Article 6:
Packing and marking
6.1. The equipment and spare parts are to be shipped in export sea packing
covering the requirements of each particular type of equipment and
climatic conditions in the SR Vietnam
6.2. The packing is to secure full safety of the goods from any kind of
damage and corrosion during transportation by sea, railway and
combined transport taking into account transshipment, if any, during
transportation and proper long storage conditions in the SRV (with
maximum time of 10 months)
6.3. The packing shall be suitable for bring loading by crane, autocars,
trucks and manually in so far as the weight and volume of individual
packages allow
6.4. Before packing all machine parts of equipment and spare parts are to be
protected with anti-corrosion coasting to prevent them from any damage
and corrosion in transportation and to ensure a 10 months time storage
in the Buyer's country
6.5. The Seller shall be responsible for any damage or breakage of the goods
that is caused by initially poor packing or for corrosion which is due to
initially improper or insufficient coating
6.6. Every case or crate is not to exceed the following dimensions:
- Length: 10,000 mm
- Width: 3,000 mm
- Height: 3,200 mm
In any case weight is not to exceed 20 tons for each container or case; in case of
containers the dimensions of the same will be standard ones of 20 feet
6.7. Tubes, pipes and sectional steel or similar materials which due to
international practice could be delivered without packing shall be
bundled tightly according to sizes in order to avoid breaking during
transportation, transshipment and confusion upon arrival at the plant
site in Vietnam
6.8. The packing list will contain the following information:
- Contract number
- Item number (according to Annex 3)
- Weight (net/gross)
139
- Case dimensions in cm
- Name of Consignor and Consignee
6.9. The cases in which the equipment and spare parts are packed are to be
marked on 4 sides: on the top of the case and on 3 adjacent sides.
6.10. The marking shall be clearly made with black indelible paint in
English as follows: (Words and figures not less than 10 cm in size if
the dimensions of the package permits).
- Consignee:
TECHNOIMPORT HANOI
S.R. Vietnam
- Contract No.:
- Net/gross weight in kg:
- Volume in m3 :
- Case dimensions in cm:
- Case number:
- Item number (according to Annex 3):
- Consignor:
DANBREW/DAN
- Port of shipment:
- Port of destination
Port of Danang
S.R Vietnam
- Transport mark:
10/NA/P7
TECH/DAN
Article 7:
Prices and payment terms
7.1. The total value of the Contract is as follows:
Equipment, spare parts
Documentation materials
Supervision and training
D E M x,000,00
D E M xxx,000
D E M xxx,000
D E M x,000,000
7.2. The above grand total price is understood CIF Danang port S.R. Vietnam
and its firms and not subject to any alteration.
7.2.1. Packing will be made in 20 foot one-way containers except big items
which cannot be put into the containers.
7.3. Price list
Item No
1.0 Malt handling equipment
Price
D E M xx,000
141
Price
Item No
3.0 Wort handling
D E M xx,000
D E M xx,000
D E M xxx,000
D E M xx,000
D E M xx,000
D E M xxx,000
D E M x,000,000
Item No
Price
9.9 Inspection
9.10 Lubrication
9.11 Control system
9.12 Production control
10.0 Utility plant:
10.1 Cooling plan
D E M xxx,000
D E M xx,000
D E M xxx,000
D E M xxx,000
Free of charge
D E M xxx,000
D E M xx,000
D E M xxx,000
D E M xxx,000
D E M xx,000
D E M x,000,000
D E M x,000,000
Supervision/Commissioning
D E M xxx,000
Insurance
D E M xx,000
D E M x,000,000
10% (ten per cent) of the grand total price, amounting to DEM xxx,000 payable
after commissioning of the plant against presentation of
1. Signed commercial invoice 2 originals and 2 copies
2. Acceptance Certificate confirming commissioning has taken place
signed by representatives of Buyer and Seller
However in any event this instalment shall be available to beneficiaries 17
months from opening of the Letter of Credit:
1. Signed commercial invoice in 2 originals and 2 copies
2. Beneficiaries simple receipt
7.5 The seller shall within 30 days from the signing of the Contract obtain an
irrevocable Bank Guarantee Securing the 15% down payment as per article
7.4.1. The Bank Guarantee is to be issued by the Seller's bank with the
Content as Annex 9 of this Contract
7.6 All expenses charges and commissions in Vietnam will be borne by the
Buyer. All banking charges and commissions outside Vietnam shall be
borne by the Seller
All expenses and charges related to any prolongation and/or modification of the
above mentioned Letter of Credit shall be borne by the faulty part
145
Article 8:
Penalties for delivery delay
8.1 Should the Seller, due to reasons solely imputable to him, fail to deliver
all kinds of equipment, materials and spare parts on the dates stipulated
in the delivery schedule (Annex 3) the Seller is to pay to the Buyer
liquidated damages for delivery delay as follows:
At the rate 0.5% for each full week of delay from the end of the expected
delivery date stipulated in the delivery schedule. The total sum of liquidated
damages for the equipment, materials and spare parts shall, however, not
exceed 5.5% of the value of the equipment and/or materials delayed
8.2 The above rates of the liquidated damages are not to be reduced or
increased by arbitration
8.3 The liquidated damages will be paid by the Seller against the Buyer's
invoice within two months after receipt thereof
8.4 The Seller is not to be relieved from his obligations stipulated in the
present Contract by paying the agreed and liquidated damages
8.5 If for reasons solely imputable to the Seller the delivery of equipment,
materials and spare parts is delayed by more than 3 months, the
contractual parties shall have to find out the measures to be taken for
the continuation of the Contract within one month from the last date of
the 3 months
146
Article 9:
Inspection before delivery
9.1 The Seller shall carry out at his expenses the inspection of the equipment
at his or his sub-contractors works
9.2 The Seller shall issue the inspection report confirming that the
equipment has been manufactured in strict conformity with the terms
and conditions of the Contract and according to metric systems
9.3 Prior to shipment the Seller is to make the control assembly and the
check of the mechanical function of the most essential equipment.
Should any machine or unit be shipped in a dismantled state the Seller
is to supply, together with the equipment, at his expenses all special
means and facilities to assemble the equipment at the plant site under
the supervision of the Seller's Chief Erector
9.4 Final tests and acceptance of the equipment for operation are to be made
at the plant site in Vietnam in accordance with Article 11
147
Article 10:
Guarantee
10.1 The Seller guarantees:
10.1.1 That the supplied equipment and technical documentation will ensure
the achievement of the guaranteed performance as stated in this
Contract
10.1.2 That the supplied equipment and technical documentation as well as
automation and mechanization of the production process will be of the
latest world technical achievements for this particular type of the plant
which will be available to the Seller at the time of delivery
10.1.3 That the materials used for manufacture of equipment and spare parts,
workmanship thereof as well as technical execution and assembly
must be of high quality
10.1.4. That the supplied equipment and spare parts are brand new and are
manufactured in full conformity with the description, technical
specifications and conditions of the present Contract and is so proven
in commercial operation of the plant
10.2 If, after the fulfilment of the technical documentation or during the
manufacture of the plant equipment a technical modification or
improvements become known and available to the Seller, the Seller
shall submit to the Buyer free of charge the comprehensive technical
documentation and supply these in manufacture after receiving the
Buyer's written consent
10.3 The guarantee period for the plant, provided that all operating manuals
and all instructions supplied as stipulated in this Contract are
observed, shall be 12 months from the date of signing Performance
Acceptance Certificate but not later than 20 months from the date of
last shipment
This period will be extended accordingly if the plant operation has been
stopped due to the Seller's fault
10.4 If during the guarantee period for the plant any equipment proves to
have any defects or to be incomplete, wholly or partly, or if it is not
made in accordance with the terms and conditions of the Contr,1 :t
during the test run of the equipment, the Seller undertakes, at the
Buyer's request, to eliminate the detected defects without any delay
148
within a reasonable period agreed upon between the parties for such
elimination and without any additional payment on the Buyer's party.
The Seller is to revise or replace the technical documentation and/or
repair or replace, at the Seller's cost, the defective or incorrect
machines, equipment or spare parts thereof
10.5 All expenses related to delivery of the relevant machines, equipment or
spare parts for such replacement on delivery basic of CIF Danang
shall be borne by the Seller, the guarantee period for the replaced or
repaired machines, equipment or spare parts is 12 months from the
date of start of operation
The defective machines, equipment or spare parts replacement by new one (s)
may be sent back to the Seller if he requests at this expenses on CIF Danang
basic within the time agreed on by the parties
10.6 If the Seller fails to eliminate the defects claimed by the Buyer, as
referred to in paragraph 10.4, the Buyer has the right to eliminate
these defects by himself, at the Seller's expenses, without releasing the
Seller from his obligations concerning the guarantee mentioned in this
Article. In this case, the Seller is to cover actual expenses for repairs.
Any small defects, the elimination of which is urgent and does not
require the presence of the Seller will be removed by the Buyer and
notified to the Seller by cable or telex and actual expenses will be
charged to the Seller's account
10.7 If the defects as per Article 10.4 cannot be removed for the Seller's
fault, the Buyer has the right to request the Seller to replace a machine
or a piece of equipment or spare parts at the Seller's expenses on the
condition of CIF Danang
10.8 The Seller guarantees that:
a. The total production capacity will be 30,000 hl/year which will
materialize as:
- 50 hl brew batches, brewed 3 times/day, 240 days/year
- Fermentation and storage in 175 hl (gross) combi-tanks
- Filling in bottles in one shift (6,000bph, nominal capacity)
b. Product: international standard Lager beer (Pillsner type), 12 P, 4%
alcohol w/w, bitterness approx. 21 IBU, in normal conditions of
operation
Production consumption as pet Annex 11
149
150
Article 11:
Erection, performance test and acceptance
11.1 Erection
11.1.1 Before erection packages shall be opened for checking with the
presence of the Buyer and the Seller's Site Managers. In case of
components mentioned in the packing lists are found missing or
damaged, a report signed by the Buyer's and the Seller's Managers
shall be prepared, also giving a detailed description of the packing at
the time of checking.
11.1.2 If, according to the above report, say, components are found
damaged and/or omitted and the packing is in good condition, bear
no signs of having been opened then the Seller shall repair or deliver
free of charge CIF Danang port the replacement and/or supplement
components as soon as possible.
11.1.3 In case of missing and/or damaged components caused by the
Buyer's side, then the Buyer and the Seller shall make an agreement
on the condition of delivery or replacement(s) and the terms of
payment thereof.
11.1.4 The Buyer undertakes to clear and transport, at his own expense, all
machinery, equipment and spare parts from Danang port of Vietnam
to the erection site and provide all facilities, manpower and
whatsoever necessary to carry out the erection of machinery and
equipment.
11.1.5 The erection of all the equipment supplied by the Seller shall be
carried out by the Buyer's personnel under the supervision and
technical instruction of the Seller's technical personnel (according to
Annex 6) in accordance with the manufacturing design, drawing,
specification, instruction manual, all supplied by the Seller and/or
given by the Seller's personnel. The two site managers shall agree
upon a time schedule for all erection work as well as for no-load
running test of the machines and the whole plant.
11.2 Performance Test
Within 7 days from the completion of crectio,i, which is to be certified by the
two Site Manages, the Buyer will provide all facilities, manpower, raw
151
materials, etc, according to the Seller's written request two months in advance
so that the performance test of individual or group of machines can be carried
out by the Seller's personnel as follows:
11.2.1 Capacity Test
Each machine or group of machines will run with a load continuously for
7.5 hours/day for two consecutive days under the technical conditions as
indicated in Annex 3 in order to prove that the average hourly production
is not lower than the one specified in Article 10.8 for the relevant
machine(s)
In case the guaranteed production capacity as indicated in Article 10.8
could not be achieved, the capacity test shall be repeated by Seller's
personnel and at the Sellers' costs and expenses
11.2.2 Mechanical Test
All the machinery of the plant will be loaded and run with load
simultaneously for 12 hours/day for 6 consecutive days under the
technical condition , as indicated in Annex 1 to prove the mechanical
efficiency of the machinery
11.2.3 Should one or more machines fail to accomplish with the
guaranteed performance due to the defects of machinery the
Scller undertakes to replace at his own cost the defective parts or
machine(s) in order to finally obtain the guaranteed performance
of the production capacity
152
Article 12:
Import/export licences
12.1 The Seller shall at his expenses and risks obtain, in due time, from
respective committees of origin any necessary export license for
exportation to and utilization in SRV of the plant equipment, materials,
spare parts, technical documents and replacements, if any, and for the
purpose of the Seller's obligations of the Contract in general
12.2 All necessary export licences for the shipment shall be submitted by the
Seller to the Buyer within 30 days after the effective date of the Contract
In case export licence is not necessary for exportation to SRV of the plant
equipment, materials, spare parts, technical documents, replacement parts
instead of licence, the Seller shall submit to the Buyer a letter stating that
export licence is not necessary for the shipments
12.3 The validity of the export licence shall be longer than the time of the
Seller's obligations under this Contract by at least 60 days. The Seller
shall at his own expenses and risks prolong the validity of such export
licence by the time of any delay occurred in the execution of this
Contract
12.4 The Seller is to bear and pay all export duties and/or charges being
imposed outside SRV whether these are prevailing at the time of signing
the contract or an being levied on the exported plant equipment,
materials, spare parts technical documents, replacement parts, if any, as a
result of a new law and/or order and/or statutory instrument and the like
issued by the government or any other authority outside SRV without any
interference from the part of the Buyer
12.5 The Buyer shall at his own expenses and risks obtain any import licence
required by the authority in SRV both for importation of all plant
equipment materials spare parts technical documents and replacement
parts, if any and for the purpose of the Contract in genera)
12.6 The validity of the import licence shall be longer than the time of
execution of the Buyer's obligations under this Contract by at least 60
153
days. The Buyer shall, at his own expenses and risks prolong the validity
of this import licence by the time of any delay occurred ir ' 1 execution
of this Contract
12.7 The Buyer is to bear and pay all customs and import duties, fees and/or
any other charges being imposed in SRV whether these are prevailing at
the time of signing the Contract or are being levied on the importation of
the plant equipment materials, spare parts, technical documents and
replacement and the like issued by the government or any other authority
in SRV without any interference from the part of the Seller
154
Article 13:
Arbitration and applicable law
13.1 If any time, any dispute or difference should arise from or in connection
with the present Contract either party shall give to the other a written
notice of the existence of such dispute or difference. The parties, after
having received such written notice, shall in principle try to settle the
dispute or difference amicably by mutual consultation in good faith and
in good measures. If an amicable settlement cannot be reached between
the Seller and the Buyer, the dispute or difference shall be submitted to
an arbitration of the International Chamber of Commerce in Paris in force
on lst June, 20
The arbitration body shall be composed of 3 Arbitrators, two of them shall be
respectively selected by each of the contracting parties, and the third Arbitrator
(umpire), acting as Chairman of the Court, be selected by a joint decision of the
arbitration of the two contracting parties
The Umpire shall be of the nationality other than the contracting parties and of
the nationality of a country having diplomatic relations with contries of both
contracting parties
The party who desires to refer the dispute or difference to arbitration shall
notify the other party about the decision by a registered letter stating the name
and address of the subject of the dispute, date and number of the Contract
The other party shall if not otherwise agreed, in writing within 4 weeks from
the date of dispatching of the above said letter appoint his Arbitrator who may
also be the citizen of any country and shall, by registered letter, notify the first
party about the name and address of the Arbitrator appointed by him
Should the party who has received the notification of the dispute or difference
being referred to arbitration fail to appoint the second Arbitrator within
indicated period or should two Arbitrators of contracting parties fail to appoint
the third Arbitrator (umpire) within 4 weeks from the date after the designation
of the second Arbitrator, then those Anbitraters, at the request of the parties
concerned, shall be appointed by the President of the International Chamber of
Commerce in Paris, France
13.2 The award of the arbitration court shall be decided by majority vote as fast
as after the Umpire has been chosen or appointed in accordance with the
conditions of the paragraph on the basis and in accordance with the terms
155
156
Article 14:
Force majeure
14.1 All occurrences and circumstances which happen after the present
Contract has come into force and which are due to unforeseen and
unavoidable facts of an extraordinary character beyond the will and the
control of the parties hereto and directly as much affect the execution of
the obligations under the present Contract are to be considered as cases of
force majeure. In the frame of the above mentioned the case of force
majeure are e.g: hostilities or war whether declared or not, earthquake,
fire, flood, strong storms, explosions, epidemics, general strikes and/or
other strikes officially organized by the Trade Union of the industrial
branch concerned and other natural disasters
The following cases shall not be considered as cases of force majeure: technical
accidents in fabrication (rejection of defective casting, rectification after the
defect), shortage of personnel, of raw materials, of means of transport and of
energy, delay and/or failure of the Seller's sub-contractors, the local strikes not
organized by the above mentioned Trade Union, breakdown and stoppage of
the work
14.2 The party claiming relief from performance of an obligation under the
present Contract due to force majeure shall notify the other party thereof
by cable or telex immediately but not more than 10 days after the
beginning and cessation of force majeure. This cable or telex notification
containing proof of the occurrences, nature of such circumstances and
their commencement and termination date. Consequences shall be
confirmed by registered airmail letter within 10 days after the date of
dispatching of the said cable or telex. Such letter shall be certified by a
relevant Chamber of Commerce (and Industry) attesting the existence,
duration and correctness of the notified circumstances
14.3 At any time during the continuance of the present Contract, if either party
is unable to perform totally or partially any obligation under this Contract
because of any circumstances of force majeure as defined herein above
and said force majeure has been notified correctly as agreed upon, the
party claiming relief from performance of their obligations under this
Contract due to force majeure shall be excused for delays in their
performance of the obligations and shall automatically be extended for a
period equivalent to the period of the delay caused by the force majeure
157
14.4 If the formalities mentioned paragraph 14.2 are not observed, the months
claiming to be affected by force majeure shall forfeit his right to claim
relief from performance of his obligations due to said force majeure
14.5 If the said force majeure continues for more than 3 consecutive months,
then both contracting parties shall during the 4th month confer with one
another and decide the steps to be taken in order to prevent further delays
14.6. In the event of no agreement is reached between both contracting parties
within that month or if due to force majeure the delay continues more
than 5 months the two parties shall meet again in order to find out a final
solution
158
Article 15:
General conditions
15.1 All Annexes mentioned in and attached to the present Contract are
integral parts of this Contract
15.2 All amendments and addenda to the Contract are valid only when in
writing and signed by both contracting parties
15.3 The Seller warrants to the Buyer that he is in the possession of complete
rights for relevant patents and inventions for the equipment technical
documents, technological processes, knowledge and experiences to
submit them at the Buyer's disposal so that the subject of the control
should be freely used for the purpose intended that third parties did not
include any organization or individual of the SRV Vietnam
In case any claim is made lay third parties upon the Buyer or his Clients in
SRV Vietnam based on such infringement the Buyer shall immediately notify
the Seller of such a claim and the Seller shall at his expenses and risk take
measures to settle this claim
15.4 After signing the Contract all previous verbal and written agreements are
nul and void
15.5 All taxes and other duties due to performance of this Contract shall be
borne by the Buyer if incurred in Vietnam and shall be at the Seller's
charges if incurred in other countries
15.6 Any claim arising from implementation of this Contract can only take
place after coming into force of this Contract
15.7 All claims under the present Contract shall be made in writing and sent by
registered airmail letter. The date of such registration at the post office
shall be considered as the date of introduction of such claims. The reply
to such claims shall be given immediately not later than 30 days after the
receipt. In urgent cases the claims should be done by cable or telex and
be confirmed in written form as outlined in this paragraph
15.8 The Seller and his Specialists shall keep in secret all drawings data
information furnished or given by the Buyer and/or taken by themselves
during their stay in the Buyer's country
The Seller and his Specialists shall not have the right to divulge the drawings
159
160
Article 16:
Coming into fore of the contract
The Contract is subject to both Buyer's and Seller's confirmation within 40 days
from signing of the Contract
The Contract comes into force when the Seller has received both the 15% down
payment and the Letter of Credit
161
Article 17:
Legal addresses of the parties
162
(signed) O.Danbrew.
(signed) Le Vuong.
ANNEX 1
GENERAL PROCESS DESCRIPTION
Product:
Consumption
For one batch of 50h1 cold wort the following amount of raw materials is
consumed:
Mail (76% extract as is) : 600.0kg
Rice (80% extract as is) : 250.0kg
Hops (7% acid as is) : 4.6kg
50kg malt and 250kg rice are milled in the rice mill and mixed, with 12.5 hl
water in the rice kettle at 50 C. The content is heated to 75 C and a pause of 10
min, is kept, then the content is heated to 100 C and boiled for 30min
In the meantime 550kg malt is milled through the malt mill and mashed in the
wort/mash kettle with 17.5 hl water at 47 C. The content from the rice kettle is
now pumped to the wort/mash kettle and the temperature of the mixture is
thereby increased to 67 C. This temperature is kept for 6 min and the mash is
then heated to 76 C and kept for 5-10 min until negative iodine reaction
The total mash is transferred to the lauter tun where the clean wort is separated
from the spent grains. After drawing off the first wort the grains are now
sparged with water of 76 until the gravity in the wort kettle is around 10 11 P. Total amount in the wort kettle should be around 55 - 58 hl. During
sparging the heating up of the wort kettle has been started and when the kettle
is full the temperature is 100 C
The hops are added boiling continuously for approx 90 min. Until the gravity is
12 - 12.5 P. The spent grains from the lauter tun is emptied in a small trolley
and thereafter sold to the farmers as cattle feed
When the wort boiling is completed the wort is pumped to the whirlpool where
the hot trub is separated
163
After 30 min. rest in the whirlpool the wort is pumped through the wort cooler
from 94 to 10 C in one hour. The cold wort is aerated by approx. 35 ml air/ itre
wort. The aerated wort is sent to one of the fermented (combinetanks) which
can contain 3 brews, i. e. 150 hl net. With the first brew to a tank all the yeast
required for three brews is injected, i. e. 150 litres. The yeast is kept in two
yeast storage tanks with cooling jackets and agitators and can be reused up to
10 times. Each time the yeast is used in a fermented the amount doubles. The
excess yeast can be treated with 2% propionic acid and sold to the farmers as
pigs' feed
The wort now in the fermented will start fermenting and the temperature is
allowed to increase to about 16 C and the pressure to 1.3 - 1.5 bar where it is
then kept automatically. After 4 days the beer is end-fermented. It is then kept
for 48 hours at 16 C in order to reduce the diacetyl to less than 0.15ppm (mg
per kg) before cooling down in the tank till -1 C is initiated. As soon as the
cooling is started the yeast will sediment and it is then immediately taken out
and pumped to one of the two yeast storage tanks. When the beer in the
fermented has reached -1 C it is kept there for 1-2 days. Before the beer is
pumped to the kieselguhr filter, the final sediment in the tank, approx. 1 hl, is
drained. The beer filtration takes place in a kieselguhr filter and a trap filter.
The beer is checked for taste and CO2 before it is released for filtration
The filtered beer is lead to the two bright beer tanks into which it is filled under
CO2 counterpressure of 1.2 bar. When the beer has been tested for CO2 taste
and turbidity it is released for filling
The filling line comprises equipment for filling of bottles.
The bottling equipment is suitable for handling of 0.51tr. returnable bottles with
a nominal capacity of 6,000bph
Returned bottles are manually unpacked and then conveyed to the automatic
bottle washer where they are cleaned with caustic soda and water
The cleaned bottles are visually inspected and then sent to the filler/crowner
where the beer is filling in and the crown cork applied. The full bottles are now
sent to the tunnel pasteurized where the beer is gently pasteurized
The bottles out of the pasteurizer are inspected for any leakage before they are
conveyed to the labelling machine where a body label is applied. The labelled
bottles are now manually packed in crates and sent to the full bottles
warehouse.
164
Sanitation
The brewing equipment is cleaned by a CIP plant using recovered water for
first rinse and caustic soda and acid for cleaning following by clean water rinse
Utilities
Water of good quality is available from the town supply and the main line to be
the brewery and in the brewery will be local supply
A hot water tank is included for recovery of hot water from the wort cooling
The cooling plant comprises two NH3 compressors which via a heat exchanger
produce glycol water of -4C to -5 C which is then used for wort cooling, yeast
storage tank cooling and fermenting tank cooling
The steam is generated in a steam generator and supplies the brewhouse, the
filling line and the CIP plant
Compressed air is generated by an air compressor and is used for wort aeration,
emptying of fermenters and for automatic valves
CO2 recovery is included and it will be possible to recover 60 tons CO 2 per year
of which 20-30 tons will be consumed by the brewery whereas the rest can be
sold for various purposes, i. e. welding and soft drinks carbonation
Power is available from the authorities as 3 x380 V + 0 + earth and the brewery
will be equipment with a main distribution board with fuses and breaks as well
as local operation panels for each department
The automation is based on manual operation of the brewhouse and beer
processing but automatic temperature control for brew vessels, wort cooler and
fermented
The cooling plant, steam plant, air compressor and CO 2 recovery plant are all
fully automatic
For the filling line each machine is automatically regulated for temperature
control and stops.
Laboratory Equipment
The most basic equipment is included like CO2 Gehaltemeter, hazemeter,
platometers, thermometers, pH meter and various glassware and alcohol testing
equipment
165
ANNEX 2
166
Original extract, P
12.0 + /-0.2
67 + /-3
Colour, EBC
7 + /-1
pH
4.2 + /-0.2
Bitterness
21 + /-3
0.7
VDK, ppm
_. 0.15
CO2 , w/w
0.50 + /-0.03
Alcohol, w/w
4.0 + /-0.2
ANNEX 3
Origin
BRD
DK
DK
DK
DK
Description
4 roller malt mill, 600/800 kg/h
Grits bin, 800kg, milt steel
Elevators, 1,000kg/h, mild steel.
Malt pre-cleaner, ventilator and cyclone,
mild steel.
With pushbuttons for start/stop, painted
steel
Buyer supply
BRD/DK
BRD/DK
BRD/DK
DK
BRD/DK
BRD/DK
DK
DK
DK
DK
DK
DK
DK
GB/DK
168
DK
BRD
NL/DK
DK
DK
DK
DK
DK
DK
9.5 Filler/Crowner
9.6 Pasteurizer
DK
DK
9.9 Inspection
DK
9.10 Lubrication
DK
DK
DK
DK
DK
DK
DK
DK
DK
All
pipes,
fitting,
hoses,
pumps,
accessories and insulation for connecting
the process equipment and utility plant.
Beer pipes in mild steel. Excluding water
pipes which are local supply.
11.2
DK
170
171
ANNEX 4
SPARE PARTS
A lump sum of 3% of the FOB value has been set aside for spare parts
operation. The actual scope of spare parts is to be mutually agreed between the
Buyer and the Seller based on the Seller's quotation for spare parts which shall
be sent to the Buyer not later than 6 months from the effectiveness of the
Contract
172
ANNEX 5
MATERIALS AND SUPLIES
102.0 tons
1,125.0kg
3. Kieselguhr
1,792.0kg
: 20pcs
140.0kg
7. Yeast culture
: 3pcs
8. Various chemicals
: 2.4 tons
9. Glue
: 0.5 tons
All other consumables like rice or sugar, bottles, crowns, lables, cartons, crates,
etc. will be supplied by the Buyer
173
ANNEX 6
LIST OF SELLER'S PERSONNEL
AND BUYER'S PERSONNEL
The Seller will send one supervisor for 8 weeks for installations and
commissioning of the plant and one brewmaster for two months training the
Buyer's personnel
The Buyer will himself erect the plant
174
ANNEX 7
TECHNICAL DOCUMENTATION
175
ANNEX 8
IMPLEMENTATION SCHEDULE
FOR DELIVERY, ERECTION, COMMISSIONING
AND OPERATION
176
ANNEX 9
SPECIMEN OF LETTER OF GUARANTEE
ISSUED BY THE SELLER'S BANK
Buyer:
Re:
Beneficiary: Buyer:
With reference to Contract No
(hereinafter called "the Contract")
signed by the Technoimport, Hanoi (hereinafter called the Beneficiary) and
Danbrew Ltd. (hereinafter called "the Seller") on 200.... for the supply of
equipment, materials, technical services and technical documentation,
amounting to DEM... (say ... German Marks) we, at the request of the Seller
hereby open our irrevocable letter of Guarantee No... in favour of the
Beneficiary.
We hereby guarantee you, irrevocably and as for our own debt for a sum up to
DEM... in security of repayment, in full or in part, of your advance payment in
the event of our client's faiture to fulfil their obligations towards you.
Our liability under this Letter of Guarantee shall be limited to DEM.... (say:...
German Marks only).
This Letter of Guarantee shall become effective as soon as we have received
the payment of DEM... to the free disposal of Danbrew Ltd. Under reference to
Guarantee No...
In the event that Danbrew Ltd. should raise any objection to disbursements
under this Guarantee, payment thereof mush await agreement between the
parties or adjudicial decision.
We are informed that the Bank of Foreign Trade of Vietnam shall open an
irrevocable documentary credit for DEM... in favour of Danbrew Ltd., payable
at Den danske Bank A/S, Copenhagen, Denmark. This irrevocable documentary
credit represents 85 percent of the total value of contract No... for DEM.
The Guarantee will be reduced automatically on presentation to Den danske
Bank A/S of shipping documents under and in compliance with the
177
178
ANNEX 10
10.1. The Buyer shall construct all buildings, etc. and erect all the equipment
supplied by the Seller according to erection instructions
10.2. All normal tools, welding equipment and consumables, including
scaffoldings, cranes, etc. for the erection shall be supplied by the Buyer.
The Seller is to specify the requirements to the Buyer
10.3. The Buyer shall secure supply of electric power, 3x380 V-0, E, 225kw,
the Seller is to specify the requirements to the Buyer
10.4. The Buyer shall supply necessary assistance for the Seller's specialists
during their stay on the site
179
ANNEX 11
: 12,9kg
: 5.7kg
180
: 150grammes
4. Chemicals
100grammes
5. Kieselguhr
: 250 grammes
6. Filter sheets
: 0.01m2
7. Additives
13 grammes
8. Water
15h1
9. Power
: llkwh
: 7 litres
11. CO2
: 1kg
ANNEX 12
SUPERVISION SERVICES AND TRAINING
OF THE BUYER'S PERSONNEL
12.1. The Seller undertakes to send to SRV 2 skilled, experienced and healthy
engineers (in Contract refereed as Specialists) for the purpose of
supervision for erection, performance tests and plant acceptance as well
as training the Buyer's personnel during erection, performance tests and
acceptance of the plant
12.2. The Seller shall point out a Chief of the Specialists who will act as the
Seller's Site Manger. The Manager will give general instructions and get
in touch with the Buyer's Site Manager to discuss and settle everything
related to erection, test run and acceptance of the plant
12.3. The Seller shall, at least 20 days before the date of departure of the
Specialists concerned, telex the Buyer visa details of those who come so
that the Buyer could arrange visa application for them
12.4. Seller shall provide his Specialists with working clothes and insure them
at his own expenses for the period of their stay in Vietnam against
illness, accidents and death
12.5. The Seller shall be held completely responsible:
a. For accuracy, completeness and correctness of the information,
instructions, advice, consultation and/or technical documentation
shown and given by the Specialists
b. For technical damages and expenses caused by the incorrect and
inexact technical documents for the services given by his Specialists
12.6. The price for supervision and training services mentioned in Article
7 includes:
a. Air tickets from Denmark to Vietnam and vice versa for the Seller's
Specialists
b. Expenses for meals of the Seller's Specialist during their stay in
Vietnam
c. Daily salaries and allowances
181
12.7 In case of illness or accidents during the Specialist's stay in Vietnam the
Buyer shall provide the sick and injured Specialist with medical care in
Vietnam with the exception charges for fitting false teeth, spectacles as
well as taking tonics. In the event of the Seller thereof work exceeding
14 days the Buyer shall immediately inform the Seller thereof by telex
and continue to guarantee medical care at the Seller's expenses and the
Seller shall replace the incapable to work by another qualified
Specialist in such manner that the work concerned shall not be effected
by the absence of the respective Specialist. In the event of death
occurring to any Specialist the Buyer shall arrange all formalities so that
the Seller is able to repatriate the deceased. All the cost of the above
mentioned repatriation and replacement shall be borne by the Seller
12.8. The Buyer shall provide the permits, visa, etc. for the Seller's Specialists
for their entries, stays, re-entries and departure to, in and from SVR
12.9. The Specialists, during their stay in Vietnam, are obliged to adhere to
labour safety regulations and obey the rules, law, regulations and habits
all as the Buyer has made them known to the specialists or they know
them from other sources
12.10. Should any of the Seller's Specialists be incompetent or have
unsatisfactory conduct, the Buyer shall take the right to ask the Seller to
replace him by another qualified Specialist. All the cost of repatriation
and replacement shall be borne by the Seller
12.11. The Buyer shall, during implementation period of the erection and
commission of the plant, provide the transport facilities, free of charge,
between airport and the site and between the lodging and the plant site
for the Seller's personnel. The buyer shall provide, free of charge,
suitable office rooms at the site and every person with single room with
air condition, bathroom and laundry service
12.12. Training of the Buyer's personnel during the stay of the Seller's Brew
master in the plant he shall instruct and teach the Buyer's personnel the
brewing procedures and analyzing procedures for beer
182
ANNEX 13
BUYER'S TRADE MARK - TRADE MARK
REFERENCE AND USE
183
4 ma hieu
184
185
186
187
188
191
6.10. Mac ma se phai viet ro rang bang son den khOng phai bang tie'ng Anh
nhu sau:
(Cac chit va con s6 khOng nh6 hon 10cm n'6u kich thirac cita kien cho phep)
- Ngueri nhan:
1ECHNQIMORT,
Ha NO CHXHCNVN.
- S6 hop &rig:
10/NA/P7
10/NA/P7
'1ECH/DAN
193
DEM xxx.000
DEM xxx.000
DEM x.xxx.000
7.2. Gia tong Ong tren &rot hidu la gia CIF tang DA NAng CHXHCNVN
va la gia co dinh va khOng phu thuOc vao bAII4 su si:ta gia nao.
7.2.1. Bao bi se duoc thuc hien trong cac cOng-te-no 20 foot mot chieu trit
cac danh didm Ion khOng co thd dua vao cong-te-no ducic.
7.3.Ban ke gia ca
S6 danh didm
1.0. Thiel bi chuydn malt
Gia ca
DEM xx.000
DEM xx.000
DEM xx.000
DEM xxx.000
DEM xx.000
DEM xxx.000
DEM xxx.000
DEM x.xxx.000
DEM xxx.000
DEM xx.000
195
DEM xxx.000
DEM xxx.000
DEM xxx.000
KhOng tinh tier'
DEM xxx.000
DEM xxx.000
DEM xx.000
DEM xx.000
DEM x.xxx.000
DEM xxx.000
DEM xx.000
DEM x.xxx.000
DEM xxx.000
Viec thanh toan d6i voi gia tong Ong nhu neu trong dieu 7.1 se duot thuc
hien nhu sau:
7.4.1. Tien dat coc 15% (mued lam phan tram)
gia t6ng Ong len toi s6
tien xxx.000 DEM, se duoc tra bang dien chuydn tien trong yang 60 ngay tit
khi ky hop dong nay can cu vao viec trinh cac tai lieu sau day dm Nguoi Ban:
a) 1-loa don chinh cua NguOi Ban thanh 5 ban
b) Gig)/ bao lanh cua Ngan hang nhu phu lye 9 - do Ngan hang Nguad Ban
phat hanh - giri cho NguOi Mua...
7.4.2. D6i voi 85% (tam muoi lam phan tram) cua gia t6ng Ong tren, len
toi s6 tien x.xxx.000 DEM; Nguoi Mua se yeu cau Ngan hang Ngoai thuong
Viet Nam (Vietcombank) phat hanh mot tin dung thu kh6ng hUy ngang tra tien
ngay cho Ngued Ban duoc Ngan hanh Ngued Ban xac nhan trong \tong 60 (sau
muoi) ngay tit ngay 14 hop citing nay
Tin dung thu tren se duoc thOng bao bang telex hoac dien tin (day du not
dung) cho ngan hang tren
Tin dung thu nay se co hieu luc sau:
75% (bay muoi lam phan tram) cua gia t6ng Ong,
DEM, se tai 10 thang sau khi in6 tin dung thu tren
196
len toi
s6 tien x.xxx.000
10% (magi phan tram) caa gia t6ng cOng, len tgi s6 tien xxx.000 DEM,s'e
tdi 18 thang sau khi m& tin dung thu tren
7.4.3. Viec thanh toan s6 tien tong Ong tren se dugc thuc hien sau:
75% (bay magi lam phan tram) cua s6 tien ghi trong h6a dun cua moi
chuye-n giao hang, c nghia 1a khOng vugt qua x.xxx.000 DEM, tra can ea viec
trinh cac tai lieu giao hang sau:
1) Floa don thuong mai c6 chit 14, 2 ban chinh va 2 ban sao
2) Van don sach da xep hang len tau c6 ghi "phi van tai da tra" da lam va
theo lenh va ky hau de trong, toan be ban chinh va 2 ban sao.
3) Ban ke clang goi, 3 ban chinh va 2 ban sao
4) Bao cao giam dinh do Ngugi Ban phat hanh, 3 ban chinh va 2 ban sao
5) Cluing chi pham eh& do Nguen Ban phat hanh, 3 ban chinh va 2 ban sao
6) Don hoac gia.y chting bao hiem 3 ban c6 ky hau de trong cho 110% gia
tri phi hop vgi dieu (moi rui ro) ve hang hoa dia T6 chile LLOYD neu ro cac
khie-unai duo'c tra bang chinh dong tien ghi trong tin dung thu
7) Ban sao thOng bao giao hang cila Ngued Ban, 3 ban sao. 10% (mtred phan
tram) dm gia t6ng Ong tren, len toi s6 tien xxx.000 DEM, dugc tra sau khi van
hanh nha may can cif viec trinh:
(1)146a don thuong mai c chit ky, 2 ban chinh va 2 ban sao
(2) CinIng chi nghi4n thu xac nhan viec van hanh cra dugc thuc hien do cac
dai dien cua Ngued Mua va Ngued Ban 14
Tuy nhien, trong bgt kS7 tinh hu6ng nao s6 tien nay se phai c6 san cho ngued
thu hugng 17 thang ice tir khi mg L/C nay:
(1) Floa dun thuong mai c6 chit 14, 2 ban chinh va 2 ban sao
(2) Gigy bien nhan cua Nguoi thy hueng
7.5. Trong vong 30 ngay ke tir ngay 14 hop (long Ngued Ban se co dugc thu
bao dam ciia Ngan hang khOng huy ngang, bao lanh cho 15% tien dat coc tren
nhu diet' 7.4.1. Thu bao dam; Ngan hang nay se dugc Ngan hang Ngugi Ban
phat hanh yen not dung nhu tren trong phu luc 9 cila hop dong nay
7.6. Moi phi ton ve Ngan hang va phi hoa hong trong Viet Nam se do
Ngued Mua chiu. Moi phi ton va phi hoa hong v6 Ngan hang ngoai nuot Viet
Nam se do Ngued Ban chiu
Moi chi phi va phi ton lien quan den viec keo dai va/hoac sita d6i ve tin
dung thu not tren se do ben c6 16i chiu
197
198
199
200
Cac may, thiet bi. hoac phu ding hu hong sau khi &roc thay the bang cai
moi c6 the duot giri lai cho Ngueri Ban neu nguoi do yeu cau vdi chi phi dm
ngu6i do tren co' so' gido CIF DA Nang trong thoi gian do hai ben thOa thuan
10.6. Neu Ngkr6i Ban khOng khir b6 &roc cac hu hong ma Ngu6i Mua khi6u
nai, nhu neu o (loan 10.4. thi Ngtr6i Mua c6 quyen to .mlnh khir 1)6 nhiing hu
hOng nay vdi chi phi cna Ngkr6i Ban ma khOng giai thoat Ngu6i Ban khOi nhang
nghia vu lien quan den bao hanh neu trong dieu nay; trong nhfing tru6ng hop
nay Ngtr6i Ban phai chiu cac chi phi thuc t6 cho viec sira chila. Bat kST sy hu
hong nhO nAo can khir 1)6 gap ma khOng can sir co mat dm Ngtr6i Ban se duoc
Ngued Mua thkrc hi'en va bao cho Ngu6i Ban bang dien tin hoac telex va Ngu6i
Ban se chiu nhang chi phi thkrc t6
10.7. Neu nfrang hu hong nhu neu d diet' 10.4. khOng hu hong bO duot do
16i Ngkr6i Ban, Ngkr6i Mua c6 quyen yeu cau Ngkr6i - Ban thay th6 may hoac mot
phan cYa thiet bi hoac phy tiing vdi chi phi ciia Ngubi Ban theo dieu kien CIF
Da Nang
10.8. Ngtr6i Ban bao dam la:
a) COng suat san xuat tong Ong la 30.000h1/nam se &roc vat chat hoa nhu
sau:
+ Cac me naubia 50h1, nau 3 tan m6i ngay, 241 ngay moi nam.
+ Viec len men va chda dyng trong cac thYng lien hop175h1(ca vO)
+ Viec nap chai lam trong 1 ca (cong suat bieu kien la 6.000 chai m6i gib)
b) San pharn: Bia Lager tieu chuan qu6c t6( loai Pilsner)12 P, 4% ruou w/w.
DO clang khoang 21 IBU trong dieu kien san xuat binh thu6ng
thay the thiet bi hoac phu tong c6 lien quan bang nhirng phuong tien thich hop
trong yang 60 ngay nham dat dugc cOng suat duoc bao hanh; nett khOng dat
duoc cOng suat nay, hai ben se gap nhau giai quye't van de nay
r
Trading hop hai ben khOng di den th6a thuan, viec tranh chap nay se duoc
dua ra trong tai nhu diet! 13 dm hop clang nay
10.11. Trong van hanh neu c6 bat 1(3/ phan nao cUa thie't bi hoac may m6c
khOng neu trong Hop &Mg nay nhung can thiet cho viec van hanh nha may,
Nguai Ban se bang chi phi cUa minh giri nhiing thu nay tai dia diem nha may
trong vOng 60 ngay tit khi nhan duoc thOng bao cita Nguai Mua
10.12. Nguai Ban se chiu trach nhiem cung cap bat IcS/b0 phan thiet bi hoac
may m6c hoac phu tong thay the nao theo yeu cau cua Nguai Mua va chi phi
cua nguai do sau thai han bao hanh
10.13. Nguai Ban bao dam rang thiet bi phu tro, thiet bi dien hoac phu tong
thay the cung cap theo hop dang nay la clang 1)0 va phi' hop vai viec van hanh
va bao duong cita nha may dongbO duoc cung cap theo hop clang nay
10.14. Truang hop c6 khieu nai Nguai Mua c6 thd th6ng bao cho Nguoi
Ban cham nhat trong \Tong 45 ngay sau khi ket thtic thoi hart bao hanh mien la
viec hu hong xay ra trong thai gian bao hanh
10.15. Khi ke't thac thai han bao hanh Nguai Mua se phat hanh mot thu xac
nhan ke't thtic thai han bao hanh
202
duqc thl viec thir nghiem c6ng swat se du6c rihan vien Nguai Ban lam lai va v6i
chi phi cUa Ngued Ban
11.2.2. Thir nghiem co khi:
Tat ca may m6c cua nha may se duqc chat tai va chay c6 tai lien tuc trong
12 tieng/ngay trong 6 ngay lien trong cac dieu kien k y- thuat nhu neu ct phu luc
1 de chang minh hieu suit co khi cUa may mop
11.2.3. Neu mot hoac nhieu may nick khOng dat du6c chtic nang du6c bao
hanh, do cac hu hong cUa may, Nguoi Ban chiu trach nhiem thay the cac 1)0
phan hong hoac may mop bang chi phi cUa c6ng suit san xuat
204
205
208
Wong nay cho ben thin ba; tuy nhien, cac nha chile trach va cac ngan hang se
kh6ng &roc coi la ben thd ba
15.9. Ngueri Ban se chiu trach nhiem d6i vdi t6n thgt va hu hong d6i vdi tai
san ma chinh la nha may cid 14 hop (long nay cling nhu voi thuong tat cac
chuyen gia, gom ca cai chat do su bat can cua cac chuyen gia NguOi Ban trong
pham vi bao hiem nghia vu dan su cua minh thy theo cac truong hop cu the
15.10. Ngutii Ban se khOng chiu trach nhiem d6i vdi cac t6n thgt kh6ng truc
ti6p nay
209
Hop (long nay tit)/ thuqc vao sir xac nh4n cua ca Ngued Mua lan Ngueri Ban
trong yang 40 ngay tir khi kY hop dong nay.
Hop dong vao hi4iltrc khi Nguqi Ban nha'n duqc ca tin dat coc 15% va tin
dung thu.
210
211
Phu lyc 1
San pham:
Nghien 50kg malt va 250kg gao bang may nghien va trOn vai 12,5h1 mrac
trong n6i nau gao & nhiet dO 50. H6n hop do &rot dun den 75 C va loft gift 6 t()
trong10phui
tie-p tac &roc dun den 100C va de s6i trong 30 plait
Cling hic do nghien 550kg malt bang may nghien malt va ngam trong not
ngam/hem v6i 17,5h1 nu6c o nhiet dO 47 0 C. I-16n hop fir n6i nau gao hic nay
dtroc born den n6i ngam/hem va & do nhiet dO cua h6n hop nay dugc tang den
67 C. Nhiet dO do &rot Wu gift trong 60' va roi h6n hop ngam duqc dun den 76
gift tir 5 den 10 phut den khi c6 phan t.ing i 6t am
CvaHsu
T6ng hon hop ngam &roc chuyen den not loc, a do hem tinh khiet &roc
tach khOi cac hat do. Sau khi da tach hem lan dau ra, bay gib cac hat &roc rac
nuac 76 C den khi nong dO trong not nau hem khoang 10-11 P; tong chat chtla
trong not hem khoang 55 den 58h1; trong khi ra.c nu& clO ming cua n6i nau hem
bat &du tang va den khi not day thi nhiet do IA 100C
Bay gia Hap-lOng dtroc cho vao va tie'p tnc dun sOi khoang 90 plait den khi
ming dO la 12 den 12,5 P. Nhirng hat ba tir not loc &rot nit het vao xe day nh6
va sau do ban cho nOng dan lam thdc an gia suc
Khi viec nau hem hoan tat thi hem &rot bum tai thong khugy & do cuc von
&roc tach ra
212
Sau 30 plait luu lai tai thUng khuay hem dugc barn qua may lam lanh hem,
sau 1 gib nhiet dO ha dr 94 C xu6ng 10 C, hem lanh dugc th6i khi bang viec
th6i khi hem khoang 35m1 khi/lit hem, hem da dugc th6i khi dugc chuyen den
mot trong nliling tilting len men (cac thUng len men lien harp) ma no c6 the U
dugc 3 me, tirc la 150h1 tinh
Vdi me nail thd nhat den mot thUng len men nao day, toan 1)0 s6 men can
cho 3 me flu phai dugc phun vao, tilt la 1501it; men do dugc giu trong 2 tilling
chira men c6 do lam lanh va may khugy va c6 the dung den 10 Ian; m6i Ian men
dugc dung trong mot thong len men, thi s6 lacing tang gip 2 Ian. Ba men c6 the
dugc xir ly vdi 2% a-xit propionic va ban cho nOng dan lam thirc an cho lon
Bay gib hem trong thUng len men va nhiet do cho phep tang den khoang 16
C,dpsuitkhoang13e,5br&dontOgucirla.S4nyb
ket thdc giai doan len men, r6i thi no dugc luu lai trong 48 gib or 16 C de giam
b6t chat diacetyl den mix thap dudi 0,15ppm (mg moi kg), MI& khi bat dau
viec ha lanh trong thUng xu6ng -1 C, ngay khi viec ha lanh nay bat dau thi men
se ling xu6ng va ngay lap tut dugc lay ra va born den mot trong 2 tilling chtia
men, khi bia trong thiing len men da dat den -1 C thi no dugc luu lai or do tir 1
den 2 ngay; truecc khi bia dugc barn den may loc dat (kieselguhr), lop can cuoi
ding trong thUng, khoang lhl, dugc thao ra ngoai; viec loc bia xay ra trong may
loc &it va loc xi-phOng; bia dugc kiem mUi vi va dO CO 2 trudc khi dua ra de loc
Bia da loc dugc dua den hai thimg chira bia trong ma bia nay dugc nap day
vao hai thUng nay trong viec doi ap cUa CO2 0 1,2 bar; khi bia dal dugc kiem tra
ve CO2 min vi va 010 due, no dugc clan den day chuyen chi& chai
Day chuyen chi& chai bao gbm thiet bi de chi& chai
Thiel bi chief chai phu hop cho viec van chuyen loai chai 0,5 lit dung nhieu
Fan vdi cOng suit danh nghia la 6.000chai/gier
Nhimg chai mua ye dugc da bang tay va chuyen bang bang chuyen den
may rda chai to dOng, & do chai dugc rira sach bang mit va nu6c
Nhimg chai sach dugc kiem tra bang mat roi dugc chuyen den may
chief/dung nut, & do bia dugc dien day va dugc (long nut. Bay gib chai thanh
pham dugc chuyen den may dan nhan. Chai da dan nhan dugc thing bang tay
vao ket thua va chuyen kho chda thanh pham
Ong chinh dan toi nha may bia va he th6ng 'Ong trong nha may se do nha may
tu cung cap
Met thing nu& nong duoc cung cap dung de thu hoi nu& n6ng tin may
lam lanh hem
Xuang lam lanh boa gem hai may nen NH3 ma no trung chuyen qua met
may chuyen dei nhiet, san xuat nuoc gly-col to -4C den -5C de sau do dung
cho viec lam lanh hem, viec lam lanh thUng china men, lam lanh thUng len men
Hai ntrOc duoc tao ra to nei hoi va cung cap cho nha nal bia, day chuyen
chief chai va tram ve sinh CIP
Khf nen duoc sinh ra nhO met may nen kW va duet dung cho viec thei khi
nen, viec lam can cac thOng len men va cho van tu Ong
Thik bi thu h6i CO2 c6 dtroc cung cap va thiet bi do c6 the thu hoi duck 60
tan CO2/nam, trong do 20 den 30 tan se duoc dung cho nha may bia, phan con
lai c6 duoc ban ra ngoai cho nhung muc dich khac nhau, till du: han hoi va viec
carbonate hoa cac loai nuac giai khat
Nguon dien c6 duec tit cac don vi cap dien 3 x 380V + 0 + da.t, va nha may
bia se dugc trang bi met bang phan ph6i dien chinh c6 cau dao, cau chi cling
nhu cac bang nhanh van hanh cho ding be phan
Viec tu deng hoa dua tr'en co so van hanh bang tay nha nau bia va the bier'
bia con thOng nail, may lam lanh hem va thing len men dux diet' khien to
deng ve nhiet de
XuOng lanh, xtrOng hoi, may nen Ichi va xtrang thu hoi klif CO 2 hoan town to
Ong
DOi voi day chuyen chiet chai rnoi may dtroc to dOng cho viec dieu khidn
nhidt va ngang may
Thiel bi cho phang thi nghiem:
Cac thi6t bi co ban nhat dugc cung cap nhu: Dong h6 do nOng dO CO 2 do
dO mu, may do dO deo, nhidt 1(6, may do dO pH, do thay tinh cac loai va thi6t bi
thir dO con
914
Phu lyc 2
- Ming do 'P
12,0 +/-0,2
67 +/-3
7 +/-1
- pH
4,2 +/-2
- DO clang
21 +/-3
- DO ma cuoi ding,
EBC /07
- VDK, ppm
0,15
- CO2 ,
- DO con
4,0 +/-02
215
Phy lyc 3
216
Kieselguhr
217
8.1. Cac thOng chUa bia trong hinh try Hai thOng bAng thep khOng gi, co ao lam lanh va
cach nhiet, cac chi tigt khac nhu 5.1, dung tich ca
- con
v: 175h1.
8.2. He th6ng dieu khign nhiet dO
9.5. May chigt chai, may clang nut May nap bia va dong nut lien kW vdi tong sugt:
6.000 chai x 0,5 lit mot gid. 24 van nap voi viec rut
chai
than khOng sobO va 6 d5u clang nut.
Gay trot ludi don, kgt eau so cap b5ng thep khOng gi.
9.6. May thanh trong
Dua tren ca cau b5ng chuyen 23 dai b5ng thep khOng
gi, dai 10,6m. COng sugt danh nghia: 6.000chai/gid.
9.7. May dan nhan
9.8. Ban clang ket
9.9. Kim tra
9.10. BOi ton
218
MOt may nen khi co may say khOng khi, tong suat:
0,7m3/phOt.
Cac 6ng, barn d5u n6i, 6ng mem, cac phu kien va
chat cach nhiet de ghep n6i cac thi6t bi cong nghe
va xuang phu trg. 6ng chuy6n bia b5ng thep kh6ng
gi, cac ong phu trg b5ng thep mem. Trir 6ng nudc
la do dia phuang to cung cap.
MO bang phan ph6i dien chinh va mot bO hoan
chinh va cap va cac khay cap de n6i cac thi6t bi.
Phy lyc 4
PHU TUNG THAY THE
M64 s6 tien la 3% cUa gia tri FOB dd &roc danh cho phu thug thay the.
Pham vi thuc to cua phu ding thay thE se duoc thoa thuan girra NguOi mua va
Ngubi Ban tren co so ban chao gia cho cac phu tang thay the. Ban nay se duoc
girl cho Nguoi Mua kh6ng cham qua 6 thang ke tit khi hop along vac) hieu lkrc.
220
Phy lyc 5
NGUYEN LIEU CHO 3 THANG DAU
DO NGU'OI BAN CUNG CAP
102 tan
1.125kg
1.792kg
200 t6
5. Tui loc
20 chi6c
140 kg
7. Men cay
3 chi6c
2,4 tan
9. HO clan
0,5 tan
Tgt ca cdc nguyen li6u can thiet khdc nhu gdo hoc du6ng, chai, nit, nhdn,
thUng cat tong, thUng g6 thug... do Ngu6i Mua ter cung cap.
221
Phu lyc 6
NHAN SU. CUA NGUtii BAN VA
CUA NGUOI MUA
Nguoi Ban se cif mot chuyen gia giam sat trong 8 tun de giam sat viec lap
may, va chay thin nha may va mot chuyen gia ndu bia thed gian 2 thang de dao
tao nhan su cua Nguoi Mua.
Nguoi Mua se to lap dat may.
222
Phy lyc 7
TAI LIEU KY THU8T
NguOi Ban se cung cap cho Ngu'&i Mua tai lieu kSi thuat sau:
1. Trong \Tong 2 thang tit khi hop (long vao hi"Cu lu'c:
- So' do tang the cling truOng, tY le: 1:200
- Ban ve, tY le: 1:100, bao gom cac vi tri caa mo de lap may.
- Ban ve m6ng may: 1:50
- M6 to chung ve nha xtrOng, till du: Yeu cau ve hoan thien va nguyen vat
lieu can thiet. Tren co se( do Nguari Mua c6 the thiet ke va bat ddu viec xay dung
nha xu&ng.
2. Trong yang 5 thang tit khi hop (long vao hieu
- So (16 ding nghe
-
do dien
223
Phu lyc 8
LICH TR1NH THVC HIEN VIEC GIAO HANG,
LAP RAP, CHAY THU VA VAN HANH NHA MAY
224
Phu lyc 9
MAU TH1U'BAO LANH DO NGAN HANG
NGU'en BAN PHAT HANH
Mau: Thu bao lanh cho lan thanh toan thin nhgt (tien dat coc) va viec giao
hang.
Cho: Nguii Mua...
Ve viec: Thu bao lanh khOng the hug, ngang cua chung tOi s6
Ngu6i thit htong: Ngu6i Mua...
Can cu vao h6p dong s6.....
day goi la "Hop d6ng" dugc ky giita
TechnOimprt Ha Ni (dtr6i day goi la nguoi thu hung) va COng ty Danbrew
Ltd (duoi day goi la Nguoi Ban) ngay.... ve viec cung cap thie't bi, nguyen lieu,
dich vu ky thuat. Tdng s6 tien DEM... (bang chit...) theo yeu cau cua Nguai
Ban chung toi m6 sau day mot thu bat) lanh khong huY ngang s6.... cho ngtr6i
thu hung &rot hdong.
Sau day cluing tOi bao lanh cho cac Ong khOng the huY ngang xem nhu la
khoan no cua chinh chung tOi cho mot s6 tien... DEM
dam bao an toan cho
viec hoan tra, toan b0 hay mot phan cua s6 tien ma cac Ong dat coc trong truOng
hop khach hang chting tOi khOng thuc hien ducic trach nhiem cua ho diii vdi cac
Ong.
Trach nhiem cua chimg tOi theo nhu bao lanh nay se duqc han dinh den
DEM... (bang chit...)
Thu bao lanh c6 hieu luc ngay khi chting tOi nhan duot viec thanh toan....
DEM cho viec sir dung vO dieu kien cua Cong ty Danbrew Ltd theo tham chieu
d6i v6i bao lanh s6...
Twang hop COng ty Danbrew Ltd dua ra bat ky nhimg viec tir choi tra tien
thuOc bao lanh nay thi viec thanh toan phai chi thoa thuan giira hai ben hoac
phan guy& cua Toa an.
225
Chung tOi duoc thOng bdo la Ngan hang Ngoai thuong Viet Nam se ma mot
thu tin dung chting tir khOng huY ngang cho tong s6 tien DEM cho nguoi
thu huOng la COng ty Danbrew Ltd, thanh town tai DEN DANSKE BANK A/S,
COPENHAGEN, DENMARK. Thu tin dung chting tix khOng hay ngang nay la
85% T6ng tri gid dm hop dung s6 la DEM.
Bao lanh nay duqc to &Ong giarn can cu vao viec xual trinh nhang chting tir
giao hang den Ngan hang DEN DANSKE BANK A/S thu6c va phit hop Arai thu
tin dung chang tit da ke tren bang 15% cUa tri gid hod don cua nhiing chirng tit
nhu vay ma khOng c bat ky six xac nhan nao tir phia Technoimport HANOI.
Thu bao lanh het hieu Ittc 60 ngay sau chuyen giao hang cu6i ding thu0c
hop (long. Tuy vay, nen khOng c vuong mac gI tru6c do, thi thu bao lanh het
theri hieu vao ngay.... hoac ngay sau khi giam den het den s6 0 tit) , theo th6i han
nao xay den truck. Neu co khien nai thi chting tOi phai nhan duqc mu0n nhat la
vao ngay het tiled hieu caa thu bao lanh. Neu khOng nhan khien nai nao thi trdch
nhiem phdp ly cua chting toi thuOc thu bao lanh nay se het.
Khi het thei hieu caa thu bao lanh nay de nghi chuyen tra thu nay cho
chting tOi.
226
Phu lyc 10
DANH MUC CUNG CAP CU' A NGUOI MUA
1. Ngtrai Mua se xay dktng nha xtrang... va lap dat toan bQ trang bi do
Ngutri Ban cung cap theo chi dan lap dat cua Ngtrai Bdn.
2. Tat ca do nghe thOng thutmg, thi& bi han va cac pha kien lien quan, bao
g6m dan gido, can cau... cho viec lap dat do Ngutri Mua cung cap. Ngtr6i Bdn
sechi ti& hod nhang yeu cau cho Ngtrai Mua.
3. Ngtrad Mua se dam bao cung cap nguOn dien 3x380 V-O-E, 225KVA
den cac bang dien cua Ngutri Bdn. Ngtrai Mua se cung cap toan b0 dung 6ng
mr6c lanh ben trong nha may va dam bao cung cap mr6c chat luong tot tit nguon
nu& dia phttang mile dap nhat 1a 30m 3/gia.
4. Ngtrai Mua se h6 tro giilp d6 can thi& cho chuyen gia Ngtroi Bdn trong
theri gian ho 6 cOng tru6ng.
227
Phu lyc 11
BANG CHi SO TIEU THU NGUYEN LIEU
TREN 1HL BIA
228
12,9kg
5,7kg
150 gram
4. Hod chgt
100 gram
250 gram
6. Gigy loc
0,01m2
13gram
8. Nuac
15h1
9. Dien nang
11 kw/gier
7 lit
11. CO2
1kg
Phy lyc 12
1. Ngued Ban chili trach nhiem cir 2 ky su giOi nghe, c6 kinh nghiem va stk
khoe sang Viet Nam (nhu trong hop MI-1g theo phan chuyen gia) vcli muc dich
giam sat viec lap dat, chay thir va nghiem thu nha may ding nhu clao tao nhan
su cua Ngued Mua trong thed gian lap dat, chay thir va nghiem thu nha may.
2. Ngued Ban se chi dinh mot truerng doan chuyen gia nhu la chu nhiem
cOng trinh, Ong nay se dieu hanh chung va lien N thueing xuyen vdi chu nhiem
cOng trinh cita Ngued Mua de ban bac va giai guy& moi viec lien quan den viec
lap dat, chay thir va nghiem thu nha may.
3. Cham that 20 ngay, truck kin chuyen gia cua cOng trinh vao Viet Nam,
Ngubi Ban se dien cho Ngued Mua chi tiet de xin VISA cho ho de Ngueti Mua
thu xep.
4. Ngued Ban se cung cap cho chuyen gia cUa ho quart do bao ho va chi phi
d6i vdi ho khi 6m dau, tai nan va chet trong thai gian ho Viet Nam.
5. Ngithi Ban hoan toan chit' trach nhiem d6i
a) DO chinh xac, tinh hoan thien va thing clan dm cac thOng tin, huong clan,
thOng bao, to van va/hoac cac tai lieu Icy thuat do cac chuyen gia hiking cran va
dua ra.
b) Nhilng hu hong trut tiep va chi phi do cac chuyen gia cua ho gay ra do
tai lieu Ic y- thuat khOng chinh xac va khOng dung.
6. Chi phi cho viec giam sat va cOng viec dao tao ghi trong dieu 7 bao
a) Ve may bay tir Dan Mach den Viet Nam va ngtroc lai cho chuyen gia
Ngueri Ban.
b) Chi phi an u6ng cho chuyen gia trong thOi gian ho er Viet Nam.
c) Tien luong va cac khoan phu cap khac.
229
7. Twang hop 6m dau hoac tai nan trong tiled gian chuyen gia a Viet Nam,
Nguoi Mua se cham soc thu6c men cho nhung chuyen gia bi cam cum hoac bi
thucrng tar cac chi phi trong rang, thay kinh mat cling nhu cap thu6c b6. Trong
tru'Ong hop khOng con kha nang lam viec qua 14 ngay Nguoi Mua se" lap nit
thong boo cho Nguoi Ban ve viec d6 bang telex va tie!) tuc cham s6c thu6c men
voi chi phi do Nguoi Ban chiu Ira Nguoi Ban se thay vao do mot chuyen gia c6
dU trinh d0 de cong viec lien quan se khOng bi anh huang do chuyen gia 6m
dau.
Trong throng hop bi 061 xay ra v6i bat cu mot chuyen gia nao, Nguoi Mua
se thu xep moi thU tuc de Nguoi Ban c6 the cho h6i huang xac chet. Tat ca moi
chi phi cho viec hoi huang tren va viec thay chuyen gia Nguoi Ban chiu chi phi.
8. Nguoi Mua se thu xep giSy phep, VISA... cho chuyen gia de ho vac, Viet
Nam, di lai, luu tru va roi Viet Nam.
9. Trong theri gian or Viet Nam, cac chuyen gia phai tuan thu ve quy dinh an
toan lao &Ong va tuan theo quy tic, lot le , quy dinh va tap guar' khi ma NguOi
Ban ph6 Wen cho ho hoac ho duac bier tit nhang nguon khac.
10. Bat kST mot chuyen gia nao khOng c6 nang ittc hoac to cach dao arc
khOng tot, Nguoi Mua se c6 quyen de nghi Nguoi Ban thay the chuyen gia khac
co chal lacing pha hop. Moi chi phi cho viec h6i huang va thay the" do Nguoi
Ban chiu.
11. Trong giai doan thuc hien viec lap may va chay thir nha may, Nguoi
Mua se cung cap phuang tien di lai gifra san bay va cOng twang va glib nai an,
o cua chuyen gia den cOng throng cho nhan skr cUa Nguoi Ban. Nguoi Mua se"
b6 tri mien phi phong lam viec thich hop tai cong truong moi chuyen gia c6 mot
phOng c6 trang bi dieu hoa nhiet do , bail-1g tam va dich vu giat la.
12. Viec dao tao can bq cho Nguoi Mua trong thoi gian chuyen gia cUa
Nguoi Ban a tai nha may, Ong to se chi clan va truyen kien thtic cho can 130
Nguoi Mua ye quy trinh san xuat va quy trinh phan tich bia.
230
Part 10
EXAMPLES OF CONTRACT
GALLUCK LIMTED
Flat A. 3/F Causeway Tower,
16 - 22 Causeway Road
Causeway Bay HONGKONG
Tel: 8153084, 8955992; Fax: 5764980
- Moisture: 14,5%
- Foreign matter: 0,4%
- Crop: 20 ... - 20...
3. Quantity:
4. Price:
2 USD xxx per metric ton, net for June September 2005
Shipments, (xxx USD/MT)
9. Loading terms:
a. Buyer shall advise vessel's ETA and its particulars 15 days and
Captain shall inform vessel's ETA, quantity to be loaded and other
necessary information 72/48/24 hours before the vessel's arrival at
loading port
b. Laytime to commence at 1.PM if N.O.R. given before noon and at O.
AM next working day if N.O.R given in the afternoon during office
232
234
12. Arbitration:
Any discrepancies and/or disputes arising out or in connection with this
contract not settled amicably shall be referred to Arbitration in accordance with
the Rules and Practices of the International Chamber of Commerce in Paris or
such other places agreed by both sides
(Signed/sealed)
Nguyen Duc
(Signed)
Eddy S.Y.Chan
235
Hai ben cang dong Y ye hop (long mua va ban gao voi cac lieu kien nhu sau:
1. Hang 'loci: Gao trdng Viet Nam
2. Quy cacti ph 6117 chat:
4. Gici
9 - 19 ...
a. Lot hang, cot tinh vao khoan cua cha tau/ngued mua
b. Chi phi kidm kien tren cau cang dugc tinh vao tai khoan caa ngtr6i ban
(Do ngugi ban chiu)
c. Chi phi kidm kien tren tau dugc tinh vao tai khoan caa ngtr6i mua/cha
tau
d. Tat ca cac khoan tht6 xuat khan b nu& xuat xd do ngu6i Ban chiu
236
e. Tdt ca cac khoan thug nhdp, thue khdc & nuesc den v.v... Nth & cac ntrac
ben ngoai Viet Nam se duroc tfah vao tai khoan cua nguii mua
5. Theri han giao hang: 20 - 25 ngay sau ngay m& L/C
6. Bao bi: Gao phai dugc dung trong bao day din mai trong lucing tinh mei bao 50
kg, khoang 50,6 kg ca bi, khau tay & mieng bao bang chi day xe doi thich hap cho
viec b6c vac va van tai dyeing bien; nguii ban se cung cap 0,2% bao day mai mien
phi ngoai tong s6 bao cluot xep len tau
7. Bdo hi : Nguii mua se phai chiu
8. Ki e'm tra vet xOng kit& hang hod:
a. Gidy chang nhdn.chat Wong, trong lugng va bao bi do Vinacontrol cap
cang xep hang c6 tinh chung thdm va chi phi do nguii Ban chiu
b. Viec x6ng khoi hang hod phai duqc thuc hien tren boong tau sau khi
hoan thanh viec b6c hang vii cac chi phi do nguii ban chiu. Nhung cac
khoan chi tieu cho doi thus' thit & tren bi trong tiled gian xOng khoi gem
ca cac chi phi ye an u6ng, cite & va di lai & khach san chit tau phai chiu
c. Thii gian x6ng khoi khOng tinh la thi gian xep hang
9. Ccic di'eu khodn ve xep hang:
a. Nguii mua se thOng bao ETA elm con tau va cac not dung chi tiet dm no
15 ngay (sau khi tau nh6 neo) \Ta thuyen truing se thOng bao ETA cita
tau, kh6i luong se ducrc xep len tau va ratting thong tin can thiet khac
72/48/24 gii nu& khi tau den cang xep hang
b. Thii gian xep hang bat dau tinh tir lh trua neu NOR duqc trao truck bu6i
trua va tit 8h sang cita ngay lam viec tiep theo neu nhu NOR &rot trao
vao budi chieu trong gib lam viec, trong truing hey tau dcri de tha neo vi
cang tdc nghen thi thbi gian xep hang ductc tinh sau 72 gii ke tir khi trao
NOR
c. T6c dO xep hang: 800 MT m6i ngay lam viec lien tuc 24h thbi tier cho
phep lam viec, chit nhdt, ngay nghi duqc trir ra thdm chi nett c6 sir dung,
tren ca sei co it nhdt 4 den 5 ham tau/ham hang lam viec binh thu'ong va
tat ca can cdu/can true NIA cuOn day tin san sang trong trang thdi tot, neu it
holt thi tinh theo ti le
d. Nguii ban se thu xep mot dia diem be neo an toan tai mot cang an toan
cho con tau c6 sac china tir 10.000 MT - 20.000 MT de boc hang
e. Khoang thbi gian tir 17h chieu thtl bay va ngay truck mot ngay nghi cho
den 8h sang elm ngay lam vied tiep theo khOng tinh la thin gian xep hang
thdm chi c6 sir dung
237
f. Tilt& khi trao NOR, con tau 'phai c6 giay phep qua cang, ngay sau khi
tau cap (b6 neo), thuyen throng se yeu cau Vinacontrol kiem tra cac ham
tau/ham hang va cap gig)/ chi:mg nhan cac Mm tau/ham hang sach kh6,
kh6ng c6 cac tac nhan gay hai va thich hop
ch6 luong thuc va nhiing
chi phi nhu vay se &tic tinh vao tai khoan cua chif tau va thari gian khOng
tinh la thai gian xep hang
g. Phat xep hang cham/thfrang xep hang nhanh neu c6, se theo nhu mac
quy dinh trong hqp (long thud tau chuyen; nhung t6i da la 4.000/2.000
USD mot ngay hoac tinh theo ty le va phai clitqc giai guy& (thanh toan)
truc tiep giaa ngit6i mua va ngued ban trong yang 90 ngay ke tir ngay ky
B/L
h. De c6 ditqc nhung chfing tir giao hang nhu:
-
Ben c6 trach nhiem phai thong bao cac chi ti6t ve giao hang bang dien
tin/telex/Fax trong yang 24h sau khi hoan thanh giao hang
Van don se duqc cap ngay sau khi hoan thanh viec giao hang va tilt& khi x6ng
khoi va ditqc giao ngay cho ngutri mua de mua bao him
i. Trong truerng hop hang hod da son sang de xep len tau nhu da duot du
dinh trong hop MI-1g nay nhung ngittri mua khong chi dinh tau de b6c
hang thi tat ca rui ro, thiet hai, nhung chi phi c6 lien quan den hang hod
do ngubi mua chiu tren co s6 dOi boi thiterng thuc to cua ngutri ban;
nguqc lai, neu khong co hang de b6c len con tau da duqc chi dinh cang
b6c hang, thi cuqc kh6ng se do nguoi ban tra tren co s6 ban doi boi
thterng dux to cila ngfroi mua va ngutti mua se xuat trInh nhiing cluing tir
sau cho Vietcombank de nhan P.B (theri gian duot tinh tir 20-25 ngay ke
tit ngay mo L/C)
-
Bien ban chtqc ky giCra thuyen truerng va ngir6i ban xac nhan rang con
tau ditqc chi dinh da den cang xep hang de nhan s6 hang trong hop
dong nhung nguiti ban khong c6 hang bCic len tau.
a. Sau khi ky ket hop dong nay, ngutri mua hoac ngutri duqc ngiroi mua chi
dinh (SHYE LIAN (HK) MANUFACTURING CO. LTD hoac ngueri
238
dugc chi dinh khac) se telex de nghi ngtrgi ban ma P.B vgi 1% tong gia
tri LC tai Vietcombank HA Noi trong yang 2 ngay ngtrai ban se ma P.B
va th6ng bao cho ngtrai mua, sau do, 4 ngay sau khi than dugc xac nhan
cUa Vietcombank, ngtrai mua se lap tilt mei mot LC dugc xac nhan,
khOng hu57 ngang bang dien tin phi' hop vgi hgp dung nay tai ngan hang
qu6c te' hang nhat thanh toan ngay bang T.T.R c the chap nhan dugc dOi
vgi 40.000 MT cho Vinafood Hanoi hirC'ing qua ngan hang Ngoai thong
Viet Nam
Dgi vgi 60.000 MT nguai ban cling chap nhan rang ngtrai mua hoac ngtrai dugc
ngtrai mua chi dinh se ma mot thu tin dung thanh toan ngay c6 the chuyen nhuong
dugc kh6ng ht6'7 ngang bang dien bao phi' hop vgi hop dung nay c6 the chap nhan
vgi chuyen den bang dien. Trong twang hgp ngtrai ban yeu cau xac nhan L/C, L/C
se dugc xac nhan cho nguai ban hung
Trong twang hop bgn ngay ke tir ngay ngugi mua nhan dugc xac nhan cua
Vietcombank, nhung L/C kh6ng dugc ma thi ngtrai ban se thu hoi P.B tir
Vietcombank va sau do hqp dung nay to dOng dugc xod be.
Ngued ban se thu hoi P.B tren co sa xuat trinh cac chirng tir van tai cho
Vietcombank
b. Viec xuat trinh nhling chirng to sau day cho Ngan hang Ngoai thuong Viet
Nam, dugc thanh toan trong vOng 3-5 ngay lAm viec cua ngan hang sau
khi nhan dugc bCrc telex da dugc kiem tra tir Vietcombank chimg to rang
nhiing chirng tir nay da duoc kiem tra va hqp vgi cac dieu khoan cua
L/C
-
Mot 'DO day dit van don sach da x'ep hang len tau ba ban g6c c6 ghi
"Ctrgc phi tra sau"
Gig)/ chirng nhan hang hod dugc x6ng kh6i do nguai (co quan Viet
Nam) c6 tham quyen cap, dugc lam thanh 6 ban
Giay chirng nhan ye sinh do co quan Viet Nam c6 tham quyen cap
duqc lam thanh 6 ban
Nhling chi ti6t th6ng bao gin hang bang dien tin/Telex/Fax trong \Tong
24h sau khi hohn thanh viec b6c hang
239
Ngubi ban
Giam d6c
(dd 4/dong
Nguyen Dirc
240
Nguiri mua
Giam doc dieu hanh
(dc114)
CONTRACT No 01292
Singapore December 29th, 20...
Item
Lubricants
Quantity
01
GR MU3
02
CR MU3
CFR HCM
CFR HP
850 USD/MT
870USD/MT
The above prices are expressed in US dollars per metric ton net CFR port of
Vietnam, deliveries as per Art. 6 below, and remain fixed during the term of
this contract and provided that an Irrevocable L/C in respect thereof has been
notified to Seller by Singapore Indosuez Bank prior to 31/10/20...
2. Specification of Lubricants
The specification of lubricants in drums supplied under this Contract shall
conform to the specifications set out in Appendix 1 attached to hereto, which is
an integral part of this Contract. Origin of products will be Italy, Holland or
Singapore at SELLER'S option
241
3. Packaging
Packaged products will be delivered in AGIP standard new steel drums, of
about 1.2/1.0 mm thickness. The drums will be filled at 180 kg net weight
4. Payment
4.1. SELLER will be paid by Irrevocable L/C opened by Vietcombank
Hanoi and advised to Seller through Indosuez Bank in Singapore
payable at sight against first presentation of full set of shipping
documents
4.2. SELLER shall effect first shipment within 30 days from the date
SELLER receives notification of irrevocable L/C
4.3. All costs of L/C in Singapore shall be for SELLER'S account
4.4. All L/C amendment's cost (if any) caused by the failure of the Buyer
to follow the terms and conditions of payment will be for BUYER'S
account
4.5. The under mentioned documents will be forwarded to BUYER's Bank
immediately after loading date
a. Signed commercial invoice in 3 originals
b. Clean "Shipped on Board" Ocean Bill of Lading in complete set of
at least 3 original 3 and non- negotiable copies signed made out to
order of "Vietcombank" Hanoi
c. Quality/Quantity certificate issued by the Chamber of Commerce in
triplicate
d. Packing List in triplicate
e. Confirmation of cable advise for shipment in triplicate
f Receipt of shipmaster acknowledging due receipt of all documents
in triplicate non - negotiable copies of each document, for handing
same over to PETROLIMEX Haiphong or PETROLIMEX
Hochiminh City
5. Penalties
In case of delay in payment (if any), BUYER shall remit to SELLER interest
calculated from the date of presentation of documents to the bank in Singapore
to the date of effective receipt of due amount. The interest will be calculated at
LIBOR RATE (6 months) plus 1.5 per cent
242
6. Deliveries
Products will be delivered in partial shipments to be agreed upon.
In case of transshipment SELLER shall give BUYER all necessary detail and
information.
7.Insurance
Insurance shall be effected by BUYER
8. Delivery Terms
CFR Vietnamese ports as per Art. 1. Goods to be delivered in partial shipments
accordance with Art. 6
9. Claims
In case of non - conformity of the quality of the products actually delivered by
SELLER with the Contract specifications, any claim concerning the quality of
the goods must be presented to SELLER within three months from the date of
delivery.
No claims shall be accepted by SELLER party after expiry of the above period.
10. Contingencies
Should any circumstances arise which prevent the complete or partial
fulfillment by any of the parties of their respective obligations under this
contract, namely: fire; ice conditions or any other acts of the elements, war,
military operations of any character, blockade, prohibition of export or import
or any other circumstances beyond the control of the parties, then the time
stipulated for the fulfillment of the obligations shall be extended for a period
equal to that during which such circumstances last
If the such circumstances last for more than 20 days, any delivery or deliveries
which are to be performed under this contract within that period may be
cancelled on the declaration of either party, and if the above circumstances last
for more than 40 days, neither party shall have the right to make a demand upon
the other Party for compensation for any possible damage
A party unable to meet its obligations under this Contract shall immediately
advise the other party the time of commencement and the termination of the
circumstances preventing the fulfillment of its obligations
Certificates issued by the respective Chamber of Commerce of SELLER's or
BUYER's country shall be sufficient proof of such circumstances and their
duration
243
11. Arbitration
All disputes and differences which may arise out of the present contract or in
connection with it shall be settled, if possible, in an amicable way
In the event that it is not possible to settle them in an amicable way, the parties
shall refer the matter to Arbitration in the International Chamber of Commerce
in Paris
12. Other Conditions
12.1 Neither Party is entitled to transfer its right and obligations under the
present Contract to a third party without the other Party's previous
written consent
12.2 After the signing of the present Contract, all previous negotiations and
correspondence between the Parties in connection with it shall be
considered null and void
12.3 All amendments and additions to the present Contract are valid only
if they are made out in writing and signed by both Parties
12.4 All taxes, customs and other duties levied in Vietnam on the
contracted Products shall be for BUYER's account.
SELLER:
BUYER:
PETROLIMEX
(Signed)
(Signed)
Patrick FOK
Nguyen Manh
Lubricants Manager
APPENDIX I
Product:
NLGI consistency:
Agip Gr Mu3
Worked penetration:
230 dmm
195C.
Hop (long nay duqc lap gifta T6ng Cong ty xang dau (PERTROLIMEX) s6 1
Kham Thien Ha NOi, COng hoa xa hOi chit nghia Viet Nam, dia chi lien tin
"PERTROLIMEX HANOI" (sau day goi la ngtrai mua) va AGIP PETROLI S. P. A
- Chi nhanh Singapore (sau day goi la nguai ban), bang hop thing nay hai ben da
clang y nhu sau:
,
STT
Ma bOi trait
S6 luong
01
GR MU3
02
CR MU3
Gia CFR HP
850 USD/MT
870USD/MT
Gia o tren duqc tinh bang USD in& MT theo dieu kien CFR cang Viet Nam,
giao hang nhu dieu 6 duai day, va van khOng thay d6i cho den khi chuyen hang
cu6i ding &roc thuc hien vii dieu kien mot thu tin dung (L/C) khong huy ngang da
&roc thong bao cho ngtrai ban qua ngan hang Indosuez tai Singapore air& ngay,
31/01/19...
2. Chi tieu chat luong ctia ma bOi tam
Chi tieu chat Wong cita ma bOi tron dong trong phuy giao theo hop dong nay se
phit hop v6i cac chi tieu chat luong quy dinh trong phu luc 1 kern theo day, phtt luc
nay la mot 1)0 phan can thanh dm hop dong nay. Xuat xt'r caa son phdm se la Italia,
Ha Lan hoac Singapore do nguai ban chon
3. Bao bi
San phdm c bao bi se duqc giao trong phuy theft mai tieu chudn cita AGIP, c6
245
dg day dm thep khoang 1,2/1,0 mm. Cac phuy nay se dugc barn 180kg mg, trong
luting tinh
4. Thanh toan
4.1. Ngugi ban se dugc thanh Loan bang thu tin dung khOng hu5, ngang do
Vietcombank mo thgng qua ngan hang Indosuez tai Singapore, do
Vietcombank mg tra tien ngay khi xudt trinh 1 b0 day dit cac cluing tit
van tai
4.2. Ngugi ban se giao chuyen hang dau tien trong vong 30 ngay kd tir ngay
ngueri mua nhan dugc ihgng bao ve L/C khOng hu5/ ngang
4.3. Tdt ca cac chi phi ve L/C & Singapore do ngugi ban chiu
4.4. 'at ca cac chi phi ve sira dgi L/C (nen co) do ngugi mua chit'
4.5. Cac cluing tir sau day se dugc chuydn tai ngan hang cita ngtrgi mua ngay
sau ngay b6c hang
a. Ba ban g6c hoa don thong mai
b. Mgt b0 van don dugng bien sach da b6c hang it nhdt c6 3 ban gOc, 3 ban
copi khgng thanh toan dugc da 14 lap theo lenh cua Vietcombank Hanoi
c. Ba ban gidy chting nhan s6 luting/chat luting do Phong Thuong mai cap
d. Ba ban phial &rig g6i
e. Ba ban xac nhan thong bao giao hang bang dien tin
f. Bien lai cita thuyen trugng xac nhan du ba ban copi khOng thanh toan
dugc cUa mOi cluing tir, cua tat ca cac chung tir, de giao cluing cho
PETROLIMEX HAIPHONG hoac PETROLIMEX HOCHIMINH.
5. Plug
Trong trugng hgp chdm tra tier' (nen co), ngugi mua se chuydn cho ngtrgi ban s6
tien lai tinh tir ngay xudt trinh cluing tir den ngan hang tai Singapore den
ngay nhan dugc thut su toan b0 so tien; tien lai se dugc tinh bang lai sudt Libor (6
thang) cgng 1,5%
6. Giao hang
Cac san phdm se dugc giao tirng phan va se dugc hai ben (Ring y sau
Trong trugng hgp chuydn tai ngugi ban se thOng bao cho ngued mua tat ca cac
chi tier va thOng tin can thi6t
246
7.Bdo hi e'm
Viec bao him cho hang hoa do ngutd mua thuc hien
8. Dien kien giao hang
CFR tang Viet Nam nhu di8u 1; Hang hoa se duoc giao tang phan theo quy
dinh & Dieu 6
9. Khien nai
Trong truing hop chat luong san phdm &roc thuc t8 giao bgi ngugi ban khOng
pha hop vii cac chi tieu chat Wong dm hop ail-1g, bat kY khieu nai nao ve chat
Wong cila hang hoa phai dugc xuat trinh cho ngugi ban trong vOng 3 thong ke to
ngay giao hang
Cac don khieli nai se khOng dugc chap nhan b&i ben ban sau ngay het han cila
khoang tiled gian not tren
10. Bdt khd kheing
Neu bat kY tInh hugng nao nay sinh ma can tr6 viec thkrc hien mot phan hoac
toan bO nghia vu caa cac ben theo hop &Ong nay, cac tInh hugng nay nhu: Choy,
tInh trang dong bang hoac cac hanh Ong khac caa cac yeti t6 thien nhien, Chien
tranh, hoat ding quan su dugi bat ky clang nao, bao vay phong too, cam nhap khdu
hay bgt kY mot tinh trang nao d6 nom ngoai su diet' khidn cua cac ben, thi th6i gian
quy dinh cho viec that hien nghia vu do se dugc gia han mot khoang th6i gian bang
vdi khoang th6i gian ma tinh trang do keo dai
Neu tInh trang tren keo dai tren 20 ngay hoac nhang dot giao hang ma phai
dugc that hien theo hop dong nay trong khoang th6i gian d6 c6 the dugc huY 1)6 khi
co tuyen b6 caa bat kY ben nao, va neu tinh trang tren keo dai tren 40 ngay, moi
ben c6 quyen khong that hien tidp toanbO cac trach nhiem cila minh theo hop (long
nay va trong throng hop nhu vay khOng ben nao co quyen yeti du ben kia den ba
v8 cac thiet hai co the xay ra
Ben khOng thd thkrc hien &roc cac nghia vu cua minh theo hop clang nay phai
ngay lap tIrc thOng bao cho ben kia ve diem bat dau va ket thilc cua tinh trang can
tr& va viec thkrc hien cac nghia vu cila minh
Gigy Chung nhan do Ph6ng Thuong mai Wong (mg 6 nugc ngugi mua hay ngued
ban cap se la bang thong day du cho tInh trang tren va th6i gian keo dai cua tinh
trang do
11. Trong tai
Tat ca cac tranh chap va mau thuan ma c(, tie nay sinh tir hop dong nay hay
lien quan den hop (ong nay se duqc giai quyk, fle"u c6 the, bang con throng thuong
Wong hoa giai
247
Trong twang hop khOng giai quy6t dtrgc bang con throng thucmg luting hoa
giai, cac ben se dua van de ra Hoi (long Trong tai cila PhOng Thugng mai qu6c to
tai Paris
Nguoi mua
PETROLIMEX
(Dc7 14)
(Dc74)
PATRIKC FOK
NGUYEN MANH
PHU LUC 1
248
San ph d' m :
Mo AGIP MU3
DO quanh NLGI:
D6 lun kim:
230dmm
195C
3. ABCCORPORATION'S CONTRACT
SALE CONTRACT
ABC CORPORATION, as SELLER, confirms having sold to BUYER the
following goods by contract made on the date below and on the terms and
conditions SET FORTH HEREUNDER AND ON THE REVERSE SIDE
HEREOF.
BUYER
CONTRACT NO
DATE
BUYER'S REFERENCE NO.
GOODS:
QUANTITY
UNIT PRICE
TOTAL AMOUNT
- Time of Shipment
- Port of Loading
- Port of Destination
PACKING:
MARKING:
PAYMENT:
The letter of credit shall bear this Contract's number as reference
INSURANCE: To be covered by Buyer/Seller
INSPECTION:
OTHER TERMS & CONDITIONS:
ACCEPTED ON
20...
BY:
(BUYER)
(SELLER)
249
The rights and remedies of Seller hereunder are cumulative and in addition to
Seller's rights, powers and remedies existing at law or in equity or otherwise.
5. Intellectual property rights
253
HOP DONG SO
NGAY
SO LONG:
DON GIA:
TONG GIA:
GIAO HANG:
Bol:
. NGU.61 MUA
Xin kY va girl lai mot ban
XIN XEM DIEU KIEN
254
NGU'OI BAN
2. Thanh Wan
N6u viec thanh toan cho hang hoa dugc tidn hanh bang L/C, Ngtrgi mua se mg
cho ngnOi ban hating mot L/C kh6ng hu/ ngang qua mot ngan hang loai mot c6 uy
tin Vit tren qugc t6 ngay sau khi k/ k6t hop dong nay dugi clang va theo cac dieu
khoan thoa man dgi vgi ngugi ban
Ndu ngugi mua khong thanh toan tien hang dung han, khOng mg L/C, hoac
khOng thtrc hien cac nghia vu khac theo hop (long nay mgt cach hop 1/ ma tinh
truck (lucre, Ngugi ban c6 the dgi Ngugi mua trong khoang thgi gian hop 1/ phai
dua ra nhung bao dam day NI hoan toan thoa man dgi vgi Ngugi ban ve nhung viec
thut hien clang dan cac nghia vu cua minh theo hgp citing nay thl Ngugi ban cling
c6 the ngimg viec giao nhung hang hod chua giao cho ddn khi nhiing str bao dam
nhu vay dua ra
255
Ngued mua se tra theo gia cua hop &Ong nay kh6ng hoan bat, kien lai, hoac trir
bat hay bat ky mat quyen tuong to nAo ma ngtrai mua c6 the c6 de chang lai nguai
ban. Nht-mg quyen nhu vay se dugc thuc hien rieng gida Ngtred mua, Ngtrai ban vai
nhau
Bat ky nhting chi phi ve cuac phi piny mai nAo, chi phi them (nhien lieu, tien te,
hoac flitting phi danh them kiic) thue, thue hai quan, thue nhap khdu hoac xuat
khdu danh them hoac IA nhiing khoan khac thu bed nhA nudc hoac la phi bao hiem,
nhfing thd nay c6 the bi tra bed ngtrai ban cho hang hoa sau khi ky ket hop clang se
do ngued mua chiu va se dtroc hoAn lai cho ngtrai ban bed ngued mua khi yeu cau
Neu ngueri mua kh6ng thanh toan cho hang hoa phii hop ved hop dang nay,
Ngtrai mua se tra cho ngued ban mot khoan tien nhu IA s6 136i thuang flirting thiet
hai chd khOng phai lA lai suat ngan hang cho s6 tien qua han vai tY le thdp hon
trong 18% moi nam hoac muc lai suat cao nhdt cho phep bed luat cua nuac nguai
mua, tinh tir ngAy den han thanh toan cho khoan tien do den ngay thuc sir thanh
toan, tinh tren co sa mot nam c6 360 ngay dai vat tang s6 ngay thin te da qua
3. B6t kha khang
1\16u viec thuc hien cac nghia vu theo hop clang nay dm nguai ban bi anh hung
true tiep hoac gian tiep hay can tra bed bat kha khang, bao gam nining kh6ng han
the den: Thien tai, thing dat, song thug trieu, la ddt, hoa hoan, benh dich, tai hoa,
han the kiem dich, tai hoa cda Men, chien tranh (tuyen b6 hay khOng tuyen b6)
hoac su de doa cua chien tranh, dan bien, bao vay, bat gift hoac cam gift cita Chinh
nha Cam quyen hay dan chung, tich thu tau thus' hay may bay, dinh cling, be
xtrang, sty pha hoai ngdm, hay la nhting tranh chip lao dOng khac, no, tai nan hay
hong hoc toan 1)0 hay mot phdn may mac, nha may, cling cu van tai hay phuong
tien b6c hang, yeu cau cira Chinh phil, chi din, menh lenh
hay sty quan cda Chinh phn, su khOng san c6 cac phuong tien van tai hoac cling
cu bac hang, su pha san hay khOng tra &roc no dm nha san xuat hoac IA ngueri cung
cap hang, hoac IA bat ky nguyen nhan nao hoac trong nhdng twang hop bat ky nAo
vuert kha nang khong cite hop lY cua ngued ban hoac la nha san xuat hoac nhA cung
cap hang hoa, khi do ngudi ban se khOng chiu trach nhiem dai vai thiet hai hu
hang, hoac sty khOng thuc hien hay thuc hien cham tre nhting nghia vu cda minh
theo hop clang nay, va c the tuY y minh keo dAi thdi han giao hang hoac la v6 dieu
kien ket thtic hop (long ma khong c6 nghia vu doi voi phin chua thin hien theo hop
clang nay trong mot chimg muc bi anh huang hay can tra tren
256
ii. Tuyen b6 tat ca cac nghia vu cua ngtrbi mua ve cac khoan tien phai tra ngay
lip tirc
iii. Ban lai cho ngtrbi khac s6 hang nay
iv. Gift hang hoa lai vai chi phi va rui ro do ngtred mua chiu
v. Dinh chi viec giao hang
hoac
vi. Gift nhang hang hoa Bang tren cluOng di va ngtroi mua se phai hohn lai cho
ngued ban toan 1)0 thiet hai phat sinh truc tip hay gian tidp nay sinh tir
trueing hop khOng thirc hien nghia vu nhu vay
Quyen lcti va trach nhiem cim ngired ban hang theo hop (long nay la cOng don
cua guyen loi, quyen va trach nhiem truck phap 101, theo le c6ng bang hoac nhang
thin khac
5. Quy6n sa hiru tri tue
KhOng c6 dieu kien nao trong hop (long nay khOng cluqc hidu la viec chuydn
giao bat ky mot Patang, nhan hieu thuong mai, kidu clang sir dung, guyen tac gia,
nhang cOng trinh chua cong b6 khac hay bat ky guyen s& him tri tue noa khac trong
hang hod, tat ca nhiing guyen nay &roc guy dinh ro rang danh rieng cho ngudri so'
hilu hop phap va dich thirc cua cluing
257
Ngtred ban se khOng chin trach nhiem hay c6 nghia vu d6i veri bat kS , su vi
pham hoac la viec sir dung khOng duac pile') bat 14 Patang, bib arcing thuang mai,
model sir dung, kidu dang quyen tic gia, nhung cang trInh chua cang b6 hay bat kS ,
,
guy&serhtinaokdc
6. Bao hanh va khieu nai
Trir nhung quy dinh rei rang ten hap clang nay, Ngueri ban kh6ng ro rang hay
ngu y bao hanh ve tinh thich hap cho bat kS , mat muc dich sir *dung nhat dinh cim
hang hod hay kha nang ban dugc cila hang hod
Neu nhu c6 mat su bao dam nao, nghia vu cua Ngtreci ban se chi han cite trong
viec thay the hoac sira chfra s6 hang hod, khuyet tat nay. Bat IcS1 mat khieu nai nao
cua Ngueri mua ye bat kS, mat nao dm hang hod nay sinh theo hoac co lien quan den
hap (Ring nay se dugc lam bang thu may bay bao dam trong yang 30 ngay sau khi
hang hod den cang der hang va chi v6i nhang khieu nai ye hang hoa trong vemg 6
thing tir ngay tau den cang b6c hang, bat 1(5/ khieu nai nao nhu vay phai co tat ca
nhung ban tuerng thuat chi tiet day dit ding voi bang chting cluing nhan, bat
mat
ngtreri giam Binh dtrac quyen lam dieu nay
7. Han the
Ngu6i ban khOng chin trach nhiem, cho du trong hap (long trong bao hanh,
theo dan luat hoac tren cac co ser khdc, vori Ngueri mua ve thiet hai gian tiep, truc
tiep, bat nger, dac biet, va trong bat IcS/ trtrerng hap nao t6ng s6 tien b6i thuerng cua
ngtrbi ban d6i voi bat IcS7 hay toan 1)0 cac khieu nai cua Nguai mua cling se khOng
vactt qua gid ca cila hang hod
8. Nhiing diet' khoan chung
1. Tat Ca nhung tranh chap, mau thuan nay sinh tir hay lien quan den hoat clang
nay hay mat su vi pham hoat clang nay ma khOng the giai quy& bang su d6ng
yt dm Ca hai ben va khang cham tre bat hop ly nhirng thd nay se dirge giai
quy& bang trong tai TOKYO, JAPAN, theo 1'14 ve cac thit tuc cua Hiep hOi
trong tai thuang mai Nhat Ban. Phan quy& cita trong tai se la Chung thdrn va
rang buOc d6i vdi ca hai ben va su xet xir trong nhirng phan quy& nay co the
dua ra bat kS, toa an nao co quyen tai phan den voi nhiing phan quy& nay. Ve
mai mat, hap thing nay chiu su diet' tiet va hieu theo lust Nhat Ban
Nhiing thuat ngfr bu6n ban sir dung & day nhu FOB, CIF, CFR se dugc giai
thich theo "INCOTERMS 2000"
258
2. Viec Ngtroi ban khOng doi hOi Nguoi mua thuc hien day dit cac nghia vu
(dm cac dieu kien & day) vao met th6i di6m nao do se khOng anh huOng
den quyen cua Ngubi ban bat thi hanh nhang diet' nay. Su khugc tir bat k/
sit vi pham nao cua bat k/ diet' khoan nay cua NgtrOi ban se khOng dugc
hien la sit khugc tir bat k/ sit vi pham tiep theo cua diet' khoan nay hay la
khugc tir ban than chinh diet' khoan nay
3. Hop deng nay lap len sit thoa thuan hoan toan gifra cac ben cua hop deng
nay va thay the tat ca nhimg cuec giao tiep, thoi thuan, hay loci hira throe
day va hien tai dei vgi chit dm hop &Ong nay. Hop &Ong nay khOng th6 b6
sung hay ket thtic trir khi bang sit thoa thuan bang van ban glib Ngued mua
va Ngtr6i ban
4. Ngubi mua se khOng dugc chuy6n nhuong toan be hop thing hay met phan
cua hop deng nay ma khOng co sit (long / bang van ban cua NgtrOi ban.
259
Party B:
A. The Contract
1. Party A undertakes to manufacture the garmer is specified in the separate
contract or appendix of the contract (to be) signed by both the parties in
accordance with the present general terms and conditions also for the
delivery time stated in the above mentioned contract or its appendix
2. Party A shall be responsible for the delivery time provided that all
materials and accessories to be supplied by party B arrive at Haiphong
port in reasonable time prior to starting production of a new style
3. Any factories to be used for production of orders by Party A shall be
approved/accepted by Technicians from Steilmann.
B. Material supply
1. Party B and Steilmann will be responsible for supplying all the fabric
materials (shell/lining/Acrylic Boa/pocketing lining) and accessories in
due time for starting production together with the following extra items:
- Fabric materials 2%
260
1.0%
- Fusing
2%
3.0%
5.0%
- Others items not mentioned above and the wastage will be confirmed
later
All the above-mentioned fabric material's and accessories' wastage are only
for replacement of any defective items. After the factory fulfils all the orders
and quantity, these wastage percentages can be retained by the factory
2. Party B shall be responsible for sending the import documents 3 days
before vessel carrying the goods referred to in A3 hereof ETA. As soon
as the materials/accessories have arrived in the port, part A shall be
responsible for applying for the import-license; the tax-free permit, and
take the goods out of Customs to the factory within 10 days
3. After the arrival of the materials in Party A's factories, the factories
should inform Party B and then both parties shall jointly check the
contents of each carton and bale within one week and shall prepare the
Checking Report - which should be signed by both parties and passed to
Party B immediately
4. Party A shall be responsible for the fabrics and accessories from the date
of receipt until the date of shipment and shall compensate party B the
full invoice value for any loss or damage (Force majeure excepted)
C. Sewing instruction and inspection
1. Party B will supply the original samples, sketches, sewing instructions
and paper patterns to party A's factories from 5 to 7 days before Party
A starts production of each style/order enabling the factories to make a
sample
2. Party A's factories should make 3 counter samples based on supply
instruction and paper pattern and send to Party B's technician to
evaluate
3. Party A's factories should show Party B's technician the marker for each
style and must have the said technician's approval before cutting
4.
5. Any problem against paper pattern and sewing should be advised to B's
technician immediately before production proceeds
6. An authorized representative from party B will come to inspect the
goods during production and before shipment
7. Party A's factories shall inform party B and their technician that they
may make the final inspection 2 days before Shipping. If after
inspection is made garments have been rejected, factories still have time
to repair and maintain the delivery date
8. After finished garments delivery, Party A's factories should send 2
samples (small size) of each style to Party B as shipment samples
9. In the event that Party A produces an unacceptable quality standard, or
damages the fabric which has been delivered by Steilmann, it is
herewith agreed that party A should pay for the fabric and accessories
cost against the full invoice value. The quality standards are based on
the approved sample confirmed by Party B or the Steilmann technician
(in this case technician shall give technical guidance)
D. Shipment
4. For appointed sea forwarder: Eac-Saigon Shipping Service Ltd. All the
shipping documents included inspection certificate issued by Steilmann
technicians
E. Payment
All the payments shall be made by irrevocable Letter of Credit at sight. The
Letter of Credit must be established 30 days before shipment.
F. Arbitration
1. The two parties shall amicably settle all the disputes arising during the
performance of the contract. Should no settlement of disputes or such
262
Generalexim
(Signed)
(Signed/sealed)
D. Ellen
Thanh Tung
General Manager
Dep-General Director
263
Annex No: 01
Party B:
ELLEN CO.LTD
1508-1510 Star House,
Salisbury Road, Kowloon,
Hongkong Hereinafter called "Party P"
Today 5 th Aug... 20 ..., the two Parties have agreed to sign this Annex to the
above-mentioned Contract on the following terms concerning the materials and
accessories for the processing of the commodity:
Article I: MATERIALS AND ACCESSORIES FOR THE PROCESSING
OF THE COMMODITY
Side B shall supply all the materials and accessories to side A as the following
calculation (Based on CIF HAIPHONG or CIF NOIBAI)
- Fabric: 100,000 Metres
- Accessories: worth 100,000.00 USD
Article II: TIME OF DELIVERY
All the materials and accessories supplied by Side B must be delivered at
Haiphong Port 10 days prior to starting production for each style, from the end
of September, 20 .. to the end of November 20 .. and to address:
- Consignee and Notify party:
264
265
Annex No: 02
TO GENERAL TERMS
AND CONDITIONS ON BASICS OF C.M.P
No: 08/Gen - ellen/20...
Party A:
Party B:
Ellen co.LTD
1508-1510 Star House, Salisbury Road, Kowloon,
Hongkong (Hereinafter called "Side B")
Today 5th. August, 20..., the two Parties have agreed to sign this annex to
the above mentioned contract on the following terms and conditions concerning
the commodity and quantity, price and time of delivery
1. Article I:
Commodity
Jacket
Quantity
(3%
C.M.P price
Amount
Style No:
54011-2
3,270
2.40
7,848.00
54011-5
3,357
2.40
8,056.80
54423
2,758
2.10
5,791.80
Total
9,385 Pieces
USD
21,696.60
(CMP price side A undertakes for packing such as: outer carton, plastic bands
and or/PE bag/ctn sticky tape only).
2. Article II: Time of delivery
266
Ben B:
A. Ve hop (tong
1. Ben A dam nhan san xudt du quan do dugc quy dinh trong hop clang hoac
phu kien hop clang rieng dugc ky ke't gifra 2 ben plat hop vai nhiing didu khoan NIA
dieu kien chung nay, thai gian giao hang cling dugc xac dinh trong hop clang hay
phu kien dm hop clang da not & tren.
2. Ben A chili trach nhiern ve tiled gian giao hang vai didu kien ben B cung cap
tat ca nguyen lieu va phu lieu clang be ding met luc c16n cang Hai Phong trong thai
gian hop 1/trtrac khi tidn hanh san xudt mat hang mai.
3. Moi nha san xudt theo don dat hang dia. ben A se phai dugc ky thuat vien
cita cling ty Steilmann clang //chap thuan.
2%
1%
- Me-ch dinh
2%
267
3%
5%
- Nhang nguyen lieu, phu lieu khOng not & tren va mdc hao but se xac nhan sau
Moi mac hao but ve nguyen lieu not & tren chi
thay the cho nhitng mat hang
c6 sai sot. Sau khi nha may da hoan thanh tat ca cdc dan dat hang va s6 ltrqng, s6
phan tram hao but d6 co thd thuOc ye nha may.
2. Ben B chiu trdch nhiem giri cdc chdng tir nhap khdu 3 ngay truck ngay tau dd
kien den. Ngay sau khi nguyen lieu va phu lieu den cang ben A phai chiu trach
nhiem xin gigy phep nhap khdu, gigy mien thug NIA nhan hang hod qua hai quan den
nha may trong yang 10 ngay.
3. Trong yang 1 tuan sau khi nguyen lieu den nha may ciia ben A, nhang nha
may nay phai thOng bao cho ben B biet va ca 2 ben se ding kiem tra nQi dung cita
tirng horn carton, ding kien va se th6ng bdo bien ban kidm tra duqc ki ket gifra 2
ben va giri cho ben B ngay lap tdc.
4. Ben A chiu trdch nhiem ve vai va phu lieu td ngay nhan hang den ngay giao
hang va phai den bu cho ben B toan 1)0 gid tri hod dan vai moi mat mat hu hong
(loai trd bat kha khang).
C. liming din va kidm tra may
1. Ben B se cung cap man g6c, sa d6 (ban ve), huang dan may va man tren gigy
cho cdc nha may cna ben A, td 5 den 7 ngay truck khi bat dau san xuat m6i mat
hang/dan dat hang
cdc nha may lam man thin.
2. Cac nha may cda ben A phai lam 3 man d6i tren ca s& huang dan va mdu
tren gigy va giri cho nhan vien ky thuat dm ben B ddnh gia ky thuat.
3. Cdc nha may cila ben A phai xuat trinh cho ky thuat vien cda ben B xem mau
ciia mai mat hang va phai duqc ky thuat vien thing y truac ktii cat.
4. Trong twang hop sir dung vai ngoai hoac vai lot, phu kien nhieu hay It han
phai c6 su d6ng y bang van ban oh ky thuat vien trudc khi nen hanh cat may. Neu
khOng ben B se di-1h tra lai trong truang hop kheng c chfr ky cua ky thuat vien.
5..Moi phat sinh ye man tren gigy va may se phai thOng bdo ngay cho ky thuat
vien ciia ben B biet truac khi tiep tuc san xuat.
6. Dai dien dugs tuy quyen dm ben B se den kidm tra hang hod trong luc san
xuat va tilt& khi giao hang.
268
7. cac nha may cita ben A phai thong boo cho ben B NIA ky- thudt vien cua ho
kidm tra hang Ian cuai ding 2 ngay trtrac khi giao hang. N6u sau khi ket thtic kidm
tra, mot phdn bi tir ch6i, cdc nha may van c thai gian de sira chita va dam bao giao
hang.
8. Sau khi giao thanh phdn cac nha may Oa ben A se giri 2 mdu cer nho dm mai
mat hang giao cho ben B lam mdu giao hang.
9. Trong twang hop ben A son xuat hang khOng phit hop chat lugng chudn hoac
lam hong vai do Steilmann giao thi hai ben thoa thudn rang ben A phai tra tien vai
va phu lieu theo tri gia hod don. Chat lugng chudn dugc duo tren co stir cac mdu da
thong qua va dugc ben B hoac ky thudt vien cua Steilmann xdc nhdn (twang hop
nay icy thot vien se hating don ky thudt).
D. Giao hang
1. Thai gian giao hang cho tirng mat hang trong yang 30-45 ngay (pho thuec
vao s6 luting mai man/don dal hang gia c6ng) sau khi cac nha may dm ben A nhdn
duct nguyen pho lieu dongb0.
2. Ben A c tra.ch nhiem thong bdo thai gian du kien hang thanh phdm sin sang
giao cho ben B truac 7 ngay.
3. "chi dinh nguai giao nhdn hang khOng" Schenker.
Tat ca cac chting tir giao hang gac bao gom van don hang khOng g6c, giay
chang nhdn xuat xtr goc, hod don g6c va phien clang goi g6c se dugc gin den tong
ty Schenker (long thai khi hang hod di.
4. Chi dinh ngtrai giri hang &rang bidn: EAC-Saigon Shipping Service Ltd.
Tat ca cac chting tir giao hang Om ca giay chung nhdn kidm tra hang hod do
dieu le trong tai cua t6 chile Trong tai Ngoai caa nu6c thu ba theo thoi thu4n cua ca
hai ben.
2. Quyet dinh cua trong tai la chung tham va rang buQc d6i vOi 2 ben, va Dieu
kien chung nay tren cc sot CMP duac14 thanh 9 ban bang tieng Anh. M6i ben gift
3 ban co gia tri tuang duang, c6 hieu luc tit ngay ky kept. Ben A se giri 1 ban cho
cac nha may tham khao.
Hop oolong nay lam tai HAN0i, ngay 5 thang 8 nam 20 ...
270
Ben B
H6m nay ngAy 5/8/19 .. ca hai ben da thoa thuan ky phu kien theo hop &Mg not
tren va theo nhihig dieu khoan lien quan tai nguyen lieu va phu lieu de gia cOng
hang hoa
Dien 1: Nguyen phu lieu cho qua trinh gia cong hang hoti
Ben B se cung cap tat ca nguyen lieu, phu lieu cho ben A theo tinh toan sau
(tren co s& CIF Hai Phong hoac CIF NO BAi)
- Vai
100.000 m
- Phu lieu tri gia
100.000 USD
Dien 2: Thai gian giao hang
Tat ca cac nguyen lieu do ben B cung cap se dtroc giao tai cang Hai PhOng 10
ngAy truac khi bat dau san xuat timg ma tir cuai thang 9/20 .. cho den cuai thang
11/20... theo dia. chi:
Nguai nhan hang NIA ben thong bao:
T6ng cOng ty XNK tang hop
4.6 Ng6 Quyen HA Noi - Viet Nam
dieu khoan
hop clang
ii) TuyeA b6 tat ca cac nghia vu cua nguai mua ve cac khoan tien phai tra ngay
lap tac
iii)
lai. cho ngtrai khac trong viec thay the hoac sira chfra so hang h6a,
khuyet
nay. Bat 1(5, mOt khieu nai nAo cua Nguoi mua ve bat kS7 mat ilk) cua
hang hOa leu la diet' kien lien quan tai hang hod, s6 Wong, gia ca va
han giao
hang
27-1
1/ Hang hoa
S6 lining
Ao Jacket
Ma s6
54011-2
54011-2
54423
TOng cong
( 3%)
S6 den
Gia CMP
(FOB Hai Phong hoac NO Bai)
3.270
3.330
2.758
9.385 chi&
7.848,00
8.056,00
21.696,60
2,40
2,40
2,10
(tinh being USD. Gia CMP: ben A cung cap bao bi nha: cac tong ngoai, ttii
plastic valhoac PE, being dinh)
2. Th6i gian giao hang:
Th6i han giao hang thanh phdm tir thang 11/20.. tai cu6i thang 12/20..
3. Noi hang din: COng hoa Lien Bang Dilc
Nhilng dieu kien khac khong neu trong phu luc nay chieu theo hop dung s6
08/Gen-Ellen/19 ..
BEN A
272
BEN B
DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT dated the last day of January 19 .. by and between AGIP
PETROLI SPA Singapore branch having a place of business at 302 Orchard
Road 14-02 to 14-04 Tong Building Singapore 0923 ("AGIP")
And xxxxxxxxxxxxxxxxxxx whose registered office is xxxxxxxxxxx
("DISTRIBUTOR")
Witnesseth:
AGIP and DISTRIBUTOR hereby covenant and agree as follows:
1. Definitions
As used in this Agreement the following terms shall have the meaning set forth
hereafter:
a. "Products" shall mean AGIP Lubricants for Automotive and Industrial
application and Special Products as listed in the First Schedule for the
distribution by Distributor in Consumer Packages (as hereinafter
defined) carrying the registered AGIP trademarks and/or it is agreed by
the parties hereto that AGIP or AGIP Affiliates (as hereinafter defined)
may from time to time without assigning any reasons thereto make
improvements to or changes in the Products during the currency of this
Agreement. Such improvement or changes even if resulting in a change
in the characteristics of the Products shall not affect the status of the
Products as the Products and AGIP shall notify DISTRIBUTOR of such
improvement or changes
b. "Territory" shall mean the Socialist Republic of Vietnam
c. "Consumer Packages" shall mean such original standard packages from
time to time adopted by AGIP
d. "Affiliate" shall mean any entity which is controlled by or in control of
or under common control with another specified entity
273
3. Distributor's undertakings
a. The Distributor shall during the continuance of this Agreement purchase
all its requirement of the Products from AGIP and shall diligently and
faithfully serve AGIP as its distributor in the Territory and shall
improve and promote the sale of the Products for Automotive and
Industrial application (excluding international marine application)
to customers through the Territory and to ensure the best possible
display of the Products in all marketing and sales outlets
b. The Distributor shall ensure in all events that the minimum order for the
Products for delivery to the Distributor shall be that set out in clause 6
(f) hereinafter set out in the Second Schedule hereto
274
c.
d.
The Distributor shall not alter or treat in any way whatsoever the
content and Consumer Packages of the Products and will supply
Products only in Consumer Packages form and get up in which they are
supplied to the Distributor by AGIP; The Distributor shall procure
similar undertaking from all its marketing and sales outlets accordingly
and shall be responsible for and stand liable for the compliance thereof
e. The Distributor shall maintain sales records in respect of its outlets and
supply each month a sales and stocks return and such other further
records and reports all in the English Language as may be specified by
AGIP from time to time
f. The Distributor shall ensure that its salesmen visit regularly the business
premises of present and potential marketing and sales outlets/customers
for the Products in the Territory and in addition, attempt to obtain
orders for the Products from any persons to whom they may be directed
by GIP
g. The Distributor shall be responsible for ensuring that the Products reach
the consumer in the best possible condition and shall take all positive
precautions to avoid contamination or alteration of the Products and the
Consumer packages and shall educate and procure similar undertaking
from all its salesmen and marketing and sales outlets accordingly and
shall be responsible for and stand liable for the compliance thereof
h.
275
o. The Distributor shall not directly or through any agent sell any of the
Products for marine application or knowingly or having reason to
believe that they would be resold, sell the Products to any person or
body corporate or incorporate
P. The Distributor acknowledges that it is not competent to and will not
incur any liability on behalf of AGIP or in any way pledge or purport to
pledge AGIP's credit or accept any order or make any contract binding
upon AGIP
q. The Distributor shall present a draft annual marketing advertising and
promotion plan to AGIP for comment and approval prior to its
implementation. It is understood that approval by AGIP does not
amount to an acceptance of liability whatsoever or howsoever
thereunder and the Distributor undertakes to fully indemnify AGIP at
all times accordingly
r.
s.
t. The Distributor shall fully indemnify and keep AGIP fully indemnified
and harmless at all times and from time to time and against any and all
loss damage claim penalties whatsoever and howsoever or liability or
expense (and if soliitor's fees on a solicitor and client's basis to be
taxed) suffered or incurred by AGIP resulting from a breach of any of
the terms herein by the Distributor or otherwise whatsoever and
howsoever in relation to or arising out of this Agreement
4. Principal's undertakings
a. AGIP shall use its best endeavour to supply the Distributor with the
Products ordered by the Distributor
b. AGIP warrants Distributor that the Products will comply with the given
277
5. AGIP's reservations
AGIP reserves to itself notwithstanding anything to the contrary herein
contained the following rights:
a.
b.
278
a. Prices quoted to the Distributor for any of the Products are set out
against the Products in the First Schedule hereto and are subject to
change by AGIP at any time prior tc ')istributor's firm order
b. AGIP shall have no liability whasoks\ er for any delay in delivery or
performance caused by war, industrial disputes, fire, force majeure or
any other circumstances whatsoever beyond its control
279
c. Without prejudice to any other rights under this Agreement AGIP shall
be entitled to withhold further supplies without liability whatsoever
while payment of any sums due from the Distributor remains
outstanding
d. Distributor shall submit its estimated requirements for the Products
during successive four month's periods to AGIP at least two months
prior to the commencement of each such period
e. For shipments of the Products to Distributor under this Agreement
Distributor shall submit its firm orders with irrevocable confirmed
Letters of Credit established and received and further acceptance by
AGIP as follows:
- not later than the 10 th (tenth) day of the month preceding the month in
which order is to be shipped and for Products to be supplied exSingapore plant
- not less than 6J (sixty) days prior to the desired delivery date for
Products to be supplied ex-Italy
The terms of the irrevocable confirmed Letters of Credit shall be prescribed and
approved by AGIP from time to time.
f. The first Contract Year of this Agreement shall commence on the
effective date hereof and subsequent Contract Years shall commence on
anniversaries of said effective date; during successive Contract Years
Distributor shall purchase from AGIP no less than the quantity of the
Products set out in the Second Schedule
Minimum quantities for subsequent renewal terms shall be agreed upon
between the Parties hereto no less than 6 (six) months prior to the
commencement of the renewal term in question or if not so agreed shall be the
minimum quantity for the immediately preceding Contract Year or the actual
quantity sold during such year whichever is the higher to be increased by 10%
every subsequent renewal year up to 20...
g. Distributor's orders for the products may specify delivery at one time
but no requested delivery shall be for less than 1 (One) Container of
Products
h. AGIP reserves for itself and the AGIP Affiliates the right to discontinue
280
a. Unless otherwise agreed the risk to the Products shall pass to the
Distributor as soon as or when the Products or part thereof are deemed
delivered or ready for delivery to the Distributor and/or the Products or
part thereof are deemed to be in the Distributor's possession
b. Notwithstanding the aforesaid and without prejudice thereto the Title to
the Products only pass to the Distributor upon full payment of the price
of the Products to AGIP
c. Until full payment and prior to the Distributor's sale of the Products the
Distributor shall keep and/or store the Products in such manner
consistent with AGIP's ownership and manifested to all third parties
8. Payment terms
a. The Distributor agrees to pay for all Products of AGIP ordered by way
of irrevocable confirmed Letters of Credit through a bank payable at
sight to AGIP in United States Dollars payable in Singapore or
elsewhere as AGIP may determine from time to time
b. All amounts required to be paid by the Distributor shall be paid without
deduction or abatement whatsoever
281
9. Stocks
Agreement
The Distributor shall at all times during the continuance of
carry stocks of no less than one month's supply of the Products and ensure that
all orders received by the Distributor's marketing and sales outlets are supplied
without due delay. The Distributor shall take all reasonable steps to ensure that
the stocks are properly stored at all times and that a continuous stock rotation
policy is maintained for all stocks in all warehouses to ensure the quality of the
Products is preserved.
10. Trade marks and patents
a. It is agreed that all rights in the trade marks appearing upon or used in
relation to the Products and of the goodwill attaching thereto are and
shall remain the exclusive property of AGIP or its associated
companies; the Distributor shall only use the said trade marks in
conjunction with the Products and in accordance with the provisions of
this Agreement. The said trade marks shall not be used in any manner
liable to invalidate the registration or lessen the value thereof. The right
to use the said trade marks in connection with the Products is
onlygranted to the extent that AGIP is able to do so without
endangering the validity of the registration or lessening the value. The
Distributor shall immediately inform AGIP of any and every improper
or wrongful use or any actual or potential infringement in the Territory
of AGIP's patents trade marks, designs, models, or similar industrial or
commercial monopoly rights which come to the Distributor's notice and
shall provide full co-operation to AGIP at all times
b.
282
The Distributor shall ensure that its employees and dealers and
marketing and sales outlets are aware of and observe the provisions of
this clause both during the subsistence of this Agreement and thereafter
Distributor shall be responsible for and stand liable for the compliance
thereof. The obligations of this Section shall not apply however to
information which:
i. prior to the transmittal thereof to Distributor was of general public
knowledge or
ii.
ii.
vii.
286
16. Non-Competition
During the term of this Agreement the Distributor shall not distribute
manufacture develop or occupy itself in any other way directly or indirectly
with goods of a nature competitive with the Products inside or outside the
Territory without prior written consent from AGIP
17. Appointment of sub-distributors
a. The Distributor shall have the right to appoint Sub-Distributors and
outlets to store and distribute the sales of the Products within the
Territory on behalf of Distributor
b. The Distributor shall also ensure that all Sub-Distributors and outlets
shall at all times observe and comply with the terms and conditions as
stated in this Agreement which are applicable to themselves as
distributors and the Distributor shall be responsible and stand liable for
the compliance thereof
18. Non-Waiver
It is understood and agreed that the failure of delay on the party of AGIP to
require performance or compliance of the Distributor of any provisions of this
Agreement shall not affect AGIP's right to require performance or compliance
which has been waived in writing
19. Assignment
This Agreement shall be binding on the successors and assigns of each of the
parties hereto, provided however that this Agreement shall not be assigned,
transferred or sold in whole or in part by Distributor unless the terms and
conditions of such assignment transfer or sale are approved in writing by AGIP
20. Savings of terms
a. Notwithstanding termination herein the terms conditions warranties
undertakings and indemnities contained or referred to herein shall
continue to subsist and bind the parties and each individual thereof
insofar as same or any part thereof remain unfulfilled or to be
performed or outstanding or for the purpose of giving effect to each and
every one of them
b. The several undertakings of the parties shall survive and shall be treated
288
e. The Clause headings in this Agreement are for ease of reference only
and will not affect the interpretation hereof
24. Notices
Any notices required to be served hereunder shall be sufficiently given if
forwarded by registered post, recorded, delivered via cable, telex or telegraph to
the address set out at the head of this Agreement or such other address' as may
have been notified in writing to the other party for such purposes
25. Execution
This Agreement may be executed in any number of counterparts. Any single
counterpart or a set of counterparts executed in either case by all the parties
hereto shall constitute full and original agreement for all purposes
IN WITTNESS WHEREOF the parties hereto have caused this Agreement to
be executed in counterpart original by their duly authorised representatives on
the day and year first set forth above.
SIGNED by
SIGNED by
On behalf of
On behalf of
290
DISTRIBUTOR
AGIP va Ngabi phan ph6i (NPP) da 14 k6t hop &Mg nay va dong y nhu sau:
hien luc cua hop dong dOc quyen mua dd phan ph6i va tieu thu lai trong Dia Hat
cac san phdm cua AGIP cho dOng co va trong c6ng nghiep (trir ling dung vao 'iang
hai qu6c to quy dinh cu the trong Bdng danh muc the nhat
b) Viec chi dinh nay se c6 hieu luc vao ngay .../...va se keo dai trong 1 giai
clop x nam tit ngay d6 va se tieP tuc sau thOi gian do cho ddn khi diroc kdt thilc bbri
1 trong 2 ben thOng bao truck 6 thang cho ben kia bang van ban vao bat ky thOi
didm nao trir khi bang cach khac, bi k6t thilc theo cac dieu khoan dm hop (long nay
3. Trach nhiOn (cam ICCI) cua NPP
a) Trong thOi gian hieu luc cua hop d6ng nay NPP se mua cua AGIP a dap
ung tat ca cac nhu cau cua minh ve cac san phdm va se can man va trung thtic coi
AGIP la ngirOi cung cap cua minh trong Dia Hat va se tang cuOng thdc ddy viec tieu
thu cac san phdm cho cac drig dung cua Ong co va cOng nghiep (trir tIng dung hang
hai quoc te) cho cac khach hang cua minh tren toan 1)0 Dia Hat va dam bao viec
trung bay cac san phdm tot nhat co thd trong tat ca cac diem tieu thu va ban hang
b) NPP se dam bao trong moi throng hop don dat hang vOi s6 luong nh6 nhat
giao cho NPP se la so luong quy dinh trong dieu 6 (f) sau day &roc quy dinh trong
bang danh muc thti 2 cua hop dong nay
c) NPP dam bao rang ho se tuan thu moi quy chd, quy tac, quy dinh va cac quy
dinh phap ly lien quan den viec nhap khdu, bao quan, phan ph6i va ban cac San
phdm trong Dia Hat tong thOi ky
d) NPP se khOng thay d6i hoac xu lf bang bat kl cach nao hang hod va Bao bi
tieu dung cua cac San Phdm va se cung cap cac san phdm do chi trong cac dang va
kieu cua bao 131 tieu dung ma AGIP cung cap cho NPP
Do do NPP se yeu cau cac cam ke't arcing to tir cac didm ban hang va tieu thu
san phdm cua minh va se chiu trach nhiem cho viec man thu cac nguyen tac nay
e) NPP se duy tri cac bao cao ban hang dm cac diem ban hang va tInh hInh
cung cap cua minh tong thang s6 luong hang tieu thu va ton kho va cac bao cao
khac nhu vay bang tieng Anh khi c6 thd clugc AGIP yeu cau trong ding thai ky
f) NPP dam bao rang cac nhan vien ban hang dia minh thirOng xuyen ddn tham
co sbr kinh doanh cua cac didm tieu thu va ban san phdm/khach hang hien tai c6 kha
nang trong Dia Hat ngoai cac cuOc vieng tham dd nhan diroc don dat hang mua san
phdm to bat ky ngtroi nao ma c6 thd do AGIP chi dinh
g) NPP chiu trach nhiem cho viec dam bao rang cac San Pham ddn tay ngirOi
tia dung trong dieu kien tot nhat c6 thd va se thirc hien tat ca cac bien phap pheng
cac san phdm vao cac bao
ngira tich cuc dd tranh viec nhiem bdn hoac thay
292
bi tieu dung va se htrang dan va yeu can cac cam ket ming to tir phia tat ca cac
nhan vien ban hang Ira do do se chiu trach nhiem cho viec tuan thu cac cam ket nay
h) NPP se ngay lap tCrc giai guy& on thoa bat kSf cac phan nan lien quan den
viec auk day ban hang hoac viec cung cap cac thOng tin ve ky thuat va tat ca cac
van de khac tiring to nhu vay ve san pham nay sinh trong Dia Hat; NPP se ngay lap
tirc thOng bao AGIP bat ki phan nan hoac cac nhan xet khong binh thuing nao (bat
ki tit hay xau hoac yeu cau cung cap th6ng tin) ho c6 the nhan citric lien quan den
hang hod hoac cac san pham c6 16i; cac ben hieu rang AGIP se khOng chiu trach
nhiem bang bat ki cach nao ve cac phan nan va NPP bang hip ding nay dingy bii
thuing lai hoan toan cho AGIP
i) NPP se dam bao thuing xuyen va lien tuc thOng bao cac tienbO va phat trien
ciaa thi truing cho cac San pham, cho cac hang hod wing tkr, va cac hang hod canh
tranh vii chiing trong Dia Hat va tat ca cac quy dinh luat phap anh huing toi nhap
khau, phan phoi nhan hieu bao bi quang cao va fiat thu caa nhang hang hod do
trong Dia Hat va tat ca cac van de khac anh huing hoac lien quan den viec kinh
doanh cac san pham AGIP trong Dia hat
j) NPP se kh6ng phan phii cac san pham wing to trong Dia hat va ki ket cac
thuing vu canh tranh vii AGIP
cac bao cao day du, &mg dan, va cap nhat bang tie'ng Anh
k) NPP se luu
chi ri rang tat ca cac thu yeu cau, cac thuong vu va cac thu tkic lien quan den quyen
phan ph6i va tai moi thin diem cho phep AGIP hoac cac dai dien cua AGIP tiep can
cac chung to nay
I) NPP i day xac nhan rang hop ding nay la chi Oita AGIP va NPP va se
khOng chuyen nhuing hoac ngam chuyen nhtring quyen lgi dia hip ding nay ma
khing co su dingy bang van ban cna AGIP va su dingy nay se kh6ng citric to
ch6i mat cach phi 11, khing anh huing den cac dieu not tren; cac ben hieu rang mot
su sat nhap cai tao lai hoac thay dii quyen dieu khien hay thay dii quyen si hau
tren 25% s6 co phieu duic hieu la chuyen nhtring va dieu nay nhat dinh phai cc -) su
dingy truck bang van ban dia AGIP
m) Trong viec tieu thu NPP se bi rang buOc vii cac dieu kien ban hang cila
AGIP co hieu ivy trong tang thin ky va cac thay dii cho chfing do AGIP tien hanh
ca ve dieu kien chung cling nhu ve cac vu mua sam cu the va trong viec ban hang se
ki hip ding theo dieu khoan wing to vii nhang dieu nay ding vii bat ki cac thay
dii chung hoac rieng nao cho tang vu ban hang rieng, NPP se khing cam ket xuat
trinh giay bao hanh cho cac san pham tir nhang thu phii hop vii cac dieu khoan nay
hoac &pc AGIP cho phep bang van ban
293
n) NPP se khOng trkrc tieP hoac qua bat ki mot trung gian nao ban bat ki San
Phdm nao ngoai Dia Hat hoac cho cac ca nhan hoac ca quan nao thanh lap trong
Dia Hat c6 muc dich ban tai ngoai Dia Hat ma NPP biet rang hoac c6 1i do de tin
rang chting se duqc ban lai nhu vay
o) NPP se khOng trkrc tiep hoac qua bat ki mot trung gian nao ban bat ki San
Phdm nao cho cac king dung hang hai cho bat ki ca nhan hoac ca quan nao, ma NPP
biet hoac c6 lido
tin rang chting se duac ban nhu vay
p) NPP xac nhan rang khOng du quyen de va cling se khOng ganh chiu thay mat
cho AGIP bat kS/ khoan no nao caa AGIP hoac bat ki cach nao cam co hoac ngdm
cam co uy tin cita AGIP hoac chap nhan bat ki don dat hang nao hoac ki bat ki mot
hap (long nao rang buOc AGIP
q) NPP xugt trinh cho AGIP ke hoach dkr dinh quang cao va Marketing hang
nam de AGIP nhan xet va thOng qua tru6c khi thkrc hien; cac ben hieu rang su
thOng qua cita AGIP khOng duot qui la viec chap nhan cac trach nhiem hoac bat ki
viec nao arcing tkr nhu vay trong viec thOng qua nay va NPP cam ket boi thuang
toan bo cho AGIP tai moi thai diem tuong (mg
r) NPP cam ket rang cac hoat Ong Marketing, quang cao, va thtic ddy cho San
Phdm tai moi thai diem luOn phi' hop vdi luat ap dung va cac tieu chudn cung
nghiep
s) NPP se thuc hien cung viec kinh doanh sao cho tao ra tieng tot ve AGIP va
cac cung ty con caa AGIP cac San Phdm va ten hang hod va tieng tam dm cac thin
not tren va se ding co long tin oh ngtrai tieu dung doi vdi cac San Phdm; NPP se
khOng hoat dOng viec quang cao lira &Si va se khOng theo duoi tham gia va nhan
nhuang cho cac tap doan buOn ban trai vdi quan niem thOng thuang
t) NPP se den ba toan 13.0 va luon dam bao AGIP duac den bit va khOng bi anh
huang tru6c cac thiet hai doi tien phat, cac khoan tucmg to nhu vay hoac cac khoan
na hoac chi phi (va neu phi thue luat su tren co s& khach hang hoac luat su phai
chiu thue) ma AGIP phai chiu lo viec vi pham cua NPP bat ki diet' khoan nao trong
hop clang nay hoac cac viec khac arcing ttr xay ra bang cach khac lien quan den
hoac nay sinh ti' hop (long nay ti' moi thai diem va timg giai clop
4. Trach nhiOn ciia ngtroi uy tithe
a) AGIP se co gang het sac de cung cap cho NPP cac San Phdm do NPP dat
hang
b) AGIP bao dam v6i NPP rang cac San Phdm se phi' hop vai cac chi tieu chat
Wang quy dinh nhir sira doi trong tang thai ki c6 quy Binh trong hop clang nay v6i
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dieu kien bat kSikhieu nai nao ve viec vi pham cac bao dam da not tren phai dugc
AGIP de trinh cho AGIP bang van ban trong Ong 5 ngay sau ngay ke tit ngay lap
don khieu nai, qua tiled han tren cac khien nai nhu vay se khOng dugc xem xet;
ngoai ra hop dong con quy dinh rang trach nhiem cita AGIP ve viec vi pham cac
bao dam not tren se dugc han the trong moi truing hop den gia mua cua NPP Ong
vii cac chi phi van chuyen cac san phdm nay dugc AGIP th6ng qua bang van ban
truOc khi chiu cac chi phi nhu vay
c) TuSr thuOc vao skr thong qua trudc bang van ban cita AGIP ye ke hoach thtic
ddy va quang cao va so tien danh cho viec nay va luOn tuS7thuOc vao viec tuan thit
cac diet' nay trong hop (long AGIP hoan lai cho NPP 1/2 s6 tien not tren hoac s6
tier' thkrc to sir dung tuSi theo s6 nao nhO hon. Sir th6ng qua cita AGIP khOng dugc
qui la viec chap nhan cac nghia vu hoac cac khoan tuong to theo do va NPP cam ket
boi thagng toanbO lai cho AGIP tai moi thin diem
d) AGIP kh6ng dua ra su bao dam nao bao gom ca bac, dam ro rang hoac ngu
kh6ng chi han the den cac bao dam ngu y, ye tinh c6 the tieu tint dugc hoac tinh
phi hop cua san phdm veri muc dich nao cho cac San Phdm chi trir cac bao dam cho
NPP phi hop \Teri (b) o tren phi hop vii dieu kien va thu hieu t6 tang qui dinh & do
e) AGIP dam bao rang cac th6ng tin do AGIP cung cap cho NPP de quang cao
hoac cac muc dich thilc ddy khac do san phdm se chinh xac ve mat that tien vao
thu diem xual ban
5. Cac bac, luu cua AGIP
Cho du c6 trai vii bat ki dieu gi c6 trong hop clOng nay AGIP bao luu cho minh
cac quyen sau:
a) Ti chi hoac chap nhan bat ki don dat hang nao cua NPP va bang viec tir
ch6i nhu vay AGIP khOng chiu bat ki trach nhiem gl hoac cac thd tuong to doi vgi
NPP nett NPP vi pham bat ki mot dieu khoan nao hoac bat ki viec tuong to nao
trong hop dong nay
b) Thay dei bcing Danh Myc This nhdt cita hop (long nay xac dinh cac San
Phdm bang cach hoac rut khOi bang nay mot hoac mot so loci san phdm c ten
trong bang hoac them cac san phdm vao bang nay sau khi thong bao cho NPP ve
mot hoac cac loci san phdm cua AGIP nhu qui dinh trong dieu 1 not tren ma kh6ng
anh huong den tinh tong quit cita hop dong nay, kh6ng dua ra bat ki li do gl va
khOng thOng bao trugc
c) Neu NPP tai bat ki thin diem nao kh6ng dam bao day dit viec tieu thu hang
cho toan bO Dia Hat va khu vac cita Dia Hat, khOng anh hiring den bat ki quyen
nao cua minh theo hop dong nay AGIP c6 the loci trir ra khOi hop &it -1g nay mot
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phdn hoac cac phdn nhu vay caa Dia Hat va/hoac loai trir ra khoi hop (long nay mot
hoac nhieu san phdm xac dinh trong hop &rig nay hoac thkrc hien ca hai hanh dOng
nhu vay ma khOng phai thOng bao voi NPP trir rang ca hai hanh dOng nhir vay
khOng duqc thkrc hien theo dieu khoan nay
d) Tir thkrc hien cac bien phap khi thay c6 the can thiel (bao gom va khOng Anh
hu6ng den tinh tang quat cua quyen duoc bao luu chi dinh mot dai dien trong Dia
Hat)
fink ddy viec tieu thu san phdm trong Dia Hat va thOng bao cho NPP ve bat
ki ngtr6i, cong ty hoac to chile nao c6 kinh doanh a trong Dia hat ma c6 the ddy
manh duoc viec tieu thu san phdm
e) Bdt ddu san xuat hoac ighien cdu thi truang hoac phan ph6i bat ki san phdm
nao hoac viec nhu vay ma kh( ng phai hoi y kien NPP hoac tinh hoa hong cho ngtr6i
phan phi bang bat ki each nao ve cac san phdm nhu vay khi c6 the duoc ban trong
Dia hat
f) AGIP c6 the ban va cung cap true tip khOng can c6 su dong yr truck dm
NPP cac San phdm cho cac cong ty con dm AGIP ma trong cac cling ty nay AGIP
hoac cac cong ty thuOc tap doan AGIP s6 huu it nhat 30% c6 phielr va tham gia vao
cac cuOc dau thdu caa chit-1h pha, khi co, cho viec cung cap va ban cac San Phdm
ma khOng phai tinh hoa hong cho NPP bang bat ki each nao
hang hod dm don dat hang phai duoc giao d6i vgi cac San Phdm duoc giao tir
Singapore
- KhOng qua 60 ngay tru6c ngay giao hang du tinh d6i vgi cac san phdm duoc
giao tir Italia
Cac dien khoan cua L/C khong huY ngang c6 xac nhdn phai duoc ghi 1-6 va
thong qua b&i AGIP tong thbi diem
f) Nam hop dong ddu tien dm hop dong nay se bat clan vao ngay c6 hieu luc
dm hop (long nay va cac nam hop (long tiep theo se bat ddu vao ngay ki them cua
ngay c6 hieu luc da noi; trong cac nam hop clang tiep theo NPP se mua cua AGIP
kh6ng it han s6 lacing cac San Phdm qui Binh trong Bdng lift ke thir hai
S6 Wong t6i thieu trong cac th6i han keo dui tiep theo se duoc hai ben dm hop
clang nay thou thuan (long y tru6c ngay bat ddu cua th6i han keo dui noi tren it nhat
6 thang nen kh6ng dong y duoc nhu vay se la s6 lacing t6i thieu cua nam hop dong
truck ngay sau do hoac la s6 luong t6i thieu nay se duoc tang them 10% moi nam
trong tat ca cac nam duo'c keo dui tiep theo cho den nam 20...
g) Cac don dat hang cho cac San Phdm cua NPP c6 the cu the hod hang se giao
tai mot th6i diem hoac cac thOi gian khac nhau nhtmg lacing hang hod yeu cau phai
lon han hoac bang mgt Container
h) AGIP bac) Itru cho minh va cac cOng ty con cua AGIP quyen dugc ngirng
viec san xuat hoac ban bat ki San Phdm nao hoac thay dei thanh phan cat' tao cua
cac san phdm cua minh tai bat ki thai diem nao ma khong chiu bat ki truth nhi'em
gi dCii vgi NPP trir truth nhiem thOng bao cho NPP
i) Qic San Phdm se duoc giao trong yang 60 ngay ke tir ngay AGIP nhan duoc
va chap nhan L/C khong huY ngang co xac nhan d6i v6i cac san phdm ducic giao tir
Italia va trong \Tong 30 ngay d6i vgi cac San Phdm khong dugc giao tir Singapore
j) N6u vi bat ki li do gi va NPP khOng hoac sao lang nhan hang trong yang 14
ngay tir ngay dir kien (ke Ca ngay nay) sau do AGIP se co quyen coi don hang la
duoc huY va ghi hod don dOi NPP tat ca cac chi phi do AGIP chiu va bat ki sty giam
nao trong gia ban
7. Chu361 riii ro/s6 hiru
a) Trir khi dong y khac di, rth ro d6i vgi hang hod se chuyen qua NPP khi cac
San Phdm hoac mot phAn cua cluing duoc coi la da duoc giao hoac san sang giao
cho NPP va/hoac cac San Phdm hoac met phAn cua cluing dugc hieu la da thugc
quyen ser hith cua NPP
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b) Bat ke didu net tren va khOng anh hu&ng den cac dieu nay guy& s& hint dei
voi hang hoa chi chuydn qua NPP khi thanh toan toan be den hang theo gia cita cac
San Phdm cho AGIP
c) NPP se trir va/hoac lu'u kho cac San Phdm voi quyen s& him cita AGIP va the
hien re diet' nay cho ben thd ba biet cho den khi thanh toan toan be va truot khi
NPP tieu thu cac san phdm
8. Thanh toan
a) NPP clang y thanh toan cho toan be cac San Phdm dugc dat hang cita AGIP
bang L/C khOng ht4 ngang c6 xac nhan tra tier' ngay qua met ngan hang den AGIP
bang USD c6 the thanh toan tai Singapore hoac cac not khac nhu AGIP c6 the xac
dinh tong thei diem
b) Toan be khoan tier' yeu cau NPP tra se dugc thanh toan khOng khau trtr hoac
giam bet hoac cac viec ttrong to
9. Du tril hang
Trong thbi han hieu luc cua hop (long nay NPP se luen luen duy tri met lugng
hang du tar khOng it hcm khei lugng hang cung cap trong met thang va dam bao
rang tat ca cac don hang nhan dugc to cac diem tieu thu va ban hang cita NPP dugc
cung cap khOng cham tr8, NPP thuc hien tat ca cac bien phap hop 11 a dam bao
rang lugng hang du trCr la thich hop va met chit -1h sach quay \Jong du till lien tuc
dugc duy tri d6i vai tat ca cac hang hoa du tax trong tat ca cac kho chtla de dam bac,
rang chat Wong cUa cac san phdm dugc bao ye
10. Nhan lieu thuong mai va cac phat minh
a) Cac ben dong y rang tat ca cac quyen ve nhan hieu thuong mai & tren hoac
dugc sir dung cho cac san phdm va quyen khai thac kem theo day van se la tai san
rieng cua AGIP hoac cac cOng ty con cila minh; NPP se chi sir dung cac nhan hieu
thuong mai da not trong cac cOng viec lien quan den cac san phdm va phit hop vOi
cac didu khoan cita hgp deng nay, cac nhan hieu thuong mai da not se khOng dugc
sir dung theo cach ma c6 the lam mat hieu luc cita viec dang ki hoac giam bert gia
tri cita chung, quyen dugc sir dung cac nhan hieu thuong mai nay cho cac san phdm
chi duet cho phep trong chirng muc ma AGIP c6 the lam nhu vay ma khOng lam
nguy him den hieu luc cua viec dang ki hoac lam giam gia tri dia. no; NPP se bao
ngay cho AGIP ve bat kl sir sir dung khong thIch hop hoac sai hoac sir thuc su vi
pham thuong mai, thiet ke mau cua AGIP ma NPP thay, va se luen luOn Ong tac
chat the vOi AGIP
b) NPP se khOng lam hoac b6 khOng lam bat ki dieu gi ma c6 the giam hoac
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lam nguy hiem den uy tin quyen khai thac lien quan den nhan hieu thuong mai va
NPP se ghi vao tat ca cac an phdm c cac nhan hieu thuong mai mot cau rang cac
nhan hieu thuong mai do la nhan hien thuong mai cud. AGIP (ho4c mot trong s6 cac
tong ty con dm AGIP tuY truing hop) hinh fink cua cac an phdm nay phai dugc
AGIP guy& dinh
c) NPP dugc pile') sir dung ten hinh tuong va cac nhan hieu thuong mai dugc
clang ki cua AGIP lien quan den san phdm trong thin han hieu lirc caa hop thing nay
va trong giai doan tridn khai theo hop dong nay; khOng mot dieu gi & trong hop
clong nay se dugc cho la cho hung hoac se cho NPP huOng bat ki quyen sd hitu
nao hoac la quyen lgi trong ten va nhiin hieu thuong mai hoac la quyen so' him cOng
nghiep khac cua AGIP \Ta clang dugc AGIP hoac cac cOng ty con cua AGIP sir dung
NPP se khOng thirc hien bien phap nao de clang ki bat ki bieu tuong thuong
mai, nhan hieu thuong mai va hinh tuong hoac bat ki cac chit cua AGIP va cac cOng
ty con cua AGIP hoac cac chit va hinh mau khac ma AGIP cho la tuong to vii cac
chit tren. NPP se khOng co quyen sir dung bat ki mot chit hoac hinh mau nao la
hoac mot phan ten thuong mai cua AGIP
d) Khi het thin han hieu luc cua hop (long nay NPP se ngay lap tirc ding viec
sit dung tat ca cac quyen s& him cOng nghiep va sau do se khOng sir dung nhitng
quyen do hoac cac bieu tuong thuong mai ten hieu hoac hinh mau ma AGIP cho la
toting to vii cac thi nay trir viec dung lien quan den viec tieu thu s6 luting cac San
Phdm ma NPP co the a trong kho vao thin diem het han hoac ket thtic hop &lig
11. Tinh ban mat
a) Tai mot thin diem trong hoac sau thin han hien luc dm hop (long nay NPP se
khong va khong dugc phep 66110 cho bat ki ngtrbi nao bat ki mot thong tin bi mat
nao lien quan den viec phan phoi ho4c lien quan den AGIP
b) Bat ki thong tin bi mat ye ky thuat va thuong mai nao do AGIP cung cap de
gitip NPP thut hien nghia vu cua minh trong hop &Ong nay chi diroc sir dung cho
muc dich da neu
c) NPP se dam bao rang cac nhan vien cua minh, cac ngtrOi ban hang, cac diem
tieu thu va ban san phdm biet ro va ton trong cac quy dinh cua dieu khoan nay
trong ca thin han hieu luc cung nhu sau nay
d) Tat ca cac an phdm cung cap thong tin ma AGIP cid chi dinh la bac, mat va
tat Ca cac ban copy cua Ching se dugc tra lai cho AGIP khi ket fink hop dOng nay
e) NPP xac nhan rang tat ca cac thong tin ve cac san phdm dugc AGIP va cac
cong ty con dm AGIP xac dinh la bi mat thuong mai ma NPP da nhan &roc hoac se
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nhan dugc tir hop thing nay vgi AGIP hoac tir cac cong ty con cita AGIP hoac bang
cach khac la chi sir dung vgi muc do can trong nhu trong viec bao ve ski* bi mat cila
cac thOng tin thuong mai bi mat &la rieng minh va se yeu cau cac cam ket Wong ty
tir phia nhan vien, ngued ban hang, cac diem ban hang va tieu thu san phdm cita
minh va NPP se chiu trach nhiem ve viec tuan thU nhilng diet' nay; du sao cac nghia
vu cita phan nay se khOng ap dung vgi cac tin tuc ma:
i) Trugc khi chuyen chting cho NPP not chung da dugc quan chdng biet; hoac
ii) Sau thOi diem chuyen cho NPP dugc moi ngtrOi bie't khOng phai do viec vi
pham cua NPP ve nghia vu da minh theo muc nay; hoac
iii) Do AGIP thOng bao cho cong chting; hoac
iv) ThuOc quyen so hdu cua NPP dugi hinh thdc cluing tir trugc khi AGIP tiet
10 nhiing dieu nay cho NPP va NPP khOng lay truc tiep hoac gian tiep tir AGIP va
dugc NPP gift khOng c6 trach nhiem gift bi mat dgi vgi AGIP hoac la bat ki mot ben
this 3 nao khac; hoac
v) Dtroc nhan do tin tugng tir mot ben thd 3 c6 quyen tiet 10 cac thong tin nay
nguii ma NPP tren co s& tat ca cac thOng tin san c6 cUa minh cho rang ben thd 3
nay khOng nhan dugc cac thOng tin nay tir AGIP va khOng yeu cau nghia vu gi ve
viec bao mat ve cac thong tin nay dgi vgi NPP
12. Tinh dnc lap ciia cac ben
Cac ben cita hop Bong nay (long 9 rang NPP hoat dOng va se hoat Ong vi lgi
ich &la minh va khOng dieu gi 0 trong hop thing nay la gianh cho hoac dugc hieu la
cho phep NPP ma khOng c6 six clang y trugc bang van ban cua AGIP tao ra hoac
ganh vac bat IcS, mot nghia vu hoac cac no thuOc bat ki dang nao nhan danh hoac
thay mat cho AGIP hoac dtra ra bat ki hoac bao dam nao hoac trinh bay bat ki mot
viec gi nhan danh hoac thay mat cho AGIP va hop dong nay se khOng dugc hieu la
chi dinh NPP la dai 19 cho AGIP vgi bat ki muc dich gi hoac tao thanh mot quan he
ban buOn giCra cac ben hop (long nay
13. Bat kha khong
a) Trong trugng hop AGIP khong tiep tuc dugc viec san xuat thuong mai cac
San Pharn do li do narn ngoai su dieu khien cita minh bao gom ca chang han bang
cac vi du minh hoa (nhung khOng gidi han chi nhCrng dieu nay) chay, lut, n6, cac
tac Ong cua thien nhien, thien tai, tai nan, Ong dat, dinh cong, be xtrOng hoac cac
van de lao dOng khac hoac khOng mua dugc hoc thieu nguyen lieu thiet bi hoac
van tai kh&i nghia n6i loan hoac clan bien, chien tranh, hanh dOng cUa ke UM, hanh
dOng, lenh hoac yeu cau cUa bat ki chinh phit nao hoac do cac nguyen nhan khac
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ma khOng the ltrOng trugc dugc mot cach hop 1i de tranh &rot thl AGIP se khOng
chiu trach nhiem d6i vgi NPP ve bgt cfr thiet hai nao hoac cOng viec tuong to nay
sinh. Sau do AGIP se c6 h6t sac minh de khOi phuc viec san xugt thuong mai va cac
san phgm
b) Trong trugng hop keo dai tinh trang bat kha khang trong su6t mot giai down
dai trong d6 viec thuc hien cac nghia vu tuong fmg khOng the that hien &roc hop
dong nay se dugc ket thdc khi c6 de nghi cua mot trong hai ben va hop deing nay se
duqc xem nhu het hieu luc khi do:
- Tgt ca cac khoan tien dia AGIP se dugc thanh toan ngay lap tut khOng khgu
tar, khOng phai doi; va
- NPP se ngUng phan ph6i cac San Phgm cua AGIP ngay lap tut.
14. Ket fink hop thing
Hop dong nay se duqc IC6t fink:
a) Vao ngay he't han; hoac
b) Wu:
i) Bgt ki mot the ltrc nao do chie'm him so' hiru tai san cita mot trong hai ben;
hoac
ii) MOt trong hai ben se khong tri duoc no, hoac
iii) NPP se bi pha san hoac bi thanh li hoac to nguyen hoac bat buOc trir khi
mot phan dm IC6 hoach cai tao hoac sat nhap trung thtrc duqc AGIP thOng qua hoac
giai the c6 su thOng nhgt vgi chu no ve cac giai guy& hoac c6 mot ngtrgi tie'p nhan
mot phin hoac town b0 tai san cUa minh dugc chi dinh; hoac
iv) MOt ngtroi thtra IC6 duot chi dinh d6i vgi toan big hoac bgt ki big phan tai san
hoac c6 nghia vu cam ke't nao hoac cac qua trInh khac se dugc tie'n hanh d6i vgi tai
san cUa NPP; hoac
v) NPP ngUng hoac de doa ngirng thtrc hien toan 1)0 hoac bgt ki mgt phan lan
viec kinh doanh cUa minh ma khOng phai trong qua trinh cai tao lai hoac sat nhap
&roc AGIP thong qua; hoac
vi) Neu NPP vi pham hoac &roc phep vi pham bgt ki mgt nghia vu nao cita
minh trong hop (long nay va khOng sira chda viec vi pham do trong veng 14 ngay
sau khi AGIP da dua ra thOng bao bang van ban; hoac
vii) Nat NPP pham toi hoac bi buOc toi hoac pham cac hanh dOng bgt hop
Olaf, hoac da bi bugc tgi hoac cac hanh dOng bat hop phap khac; hoac
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viii) N6u NPP tham gia vao bat ki c6ng vie'c gl anh htrOng den AGIP hoac cac
cOng ty con cua AGIP hoac viec ban cac san phdm not chung
Trong cac trikmg hop nhu vay AGIP co the thong boo bang van ban k6t tithe
hop &Ong nay ma khOng anh hung deb cac quyen khac cua cac ben trong hop (long
nay
15. Hi0 Ittc cua viec ke't thtic hop thing
1\16u hop dong nay kei thtic do bat ki mot li do nao Ara khOng anh huang den cac
quyen khac: a) Tat Ca CAC khoan lien cua AGIP se cluoc thanh toan ngay lap tdc khOng khdu
trir khOng phai doi
b) NPP se ngimg phan ph6i Cac San Phdm cua AGIP ngay lap tdc
c) AGIP se co the thy y minh co quyen coi cac don hang chua dugc thus hien
do NPP dat va da duqc AGIP chap nhdn tilt& khi ket fink hop dOng nay la da &roc
hu}', trix cac don hang ma trong dO NPP se xuat trinh cac bang chting, cluing tir thoa
man cac yeu cdu cua AGIP trong yang 30 ngay ke tir ngay thOng boo ket thdc hop
(long chimg minh rang NPP da cam kel hop phap cung cap bat ki Cac San Phdm nao
da dat hang cho cac ben thd 3 tit& khi k6t thdc hop (long nay
d) N'6u AGIP yeu cdu NPP sau do se tra lai cho" AGIP hoac tai cac dia diem
khac ma AGIP co the chi dinh vai chi phi do AGIP chiu toan 1)0 cac hang hod hoac
cac San Phdm thuOc ye AGIP trong soy hitu cua hoac chiu sty dieu khien cua AGIP
va tat ca cac vat phdm quang cao khac lien quan den cac San Phdm chiu sir diet'
khien cua AGIP; trong tru6ng hop khong thdc hien cac dieu tren AGIP se co quyen
khOng can th6ng boo truck; den not dang de cac hang hoa va Cac San Phdm da not
va lay CAC thd nay
e) Tat ca cac san phdm van chua ban duoc ma theo kien cua ca hai ben AGIP
va NPP la khOng dugc tot sau do se dtroc NPP xir Ii theo chi dao cua AGIP
f) NPP se tra lai cho AGIP tat ca cac matt hang va cac vat phdm quang cao va
cac tai lieu kSi thudt va cac ban copy cua nhiing thd nay sir dung trong quan he phan
phoi
g) NPP se tra lai cho AGIP tat ca cac ban g6c va tat ca cac ban copy dm tat ca
cac chting tir va thOng tin dtrai bat ki dang nao co chda bang bat ki cach nao bat ki
phan nao thuOc sC's hiru tri tue, cac chi tieu k y- thuat va CAC an phdm
h) Trong twang hop k6t thtic hop clang nay AGIP se c6 the chon mua lai tU
NPP bat ki hoac tat ca cac san phdm mua cua AGIP va do NPP so( hiru vao ngay
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NPP nhan &roc thong bao bang van ban Y dinh cua AGIP thuc hien viec mua lai
theo diet' khoan nay; gia ca ma AGIP phai tra se IA gia ghi tren hod don thkrc to da
dtroc NPP tra Ong vgi cac chi phi van tai &roc xac dinh do NPP tra; trong throng
hop thuc hien viec chon mua lai cua AGIP, NPP se ngay lap t(rc giao cac san phdm
cho AGIP phu hop vgi tat ca cac yeu cau luat phap ma c the can thiet cho chuyen
quyen s6 hau dm hang hod cho AGIP mien ma khOng chiu bat ki phi cam giir nao
hoac cac trg ngai nao; AGIP se thanh toan cho NPP cac san phdm nhu tray ngay sau
khi NPP da thuc hien tat ca cac nghia vu cua minh theo hop (long nay
i) NPP thira nhan va (long y rang ho se duoc bit dap toan 130 chi phi cho cac
hoat dOng trong viec phat trien thi twang cho san phdm day ten tu6i va danh tieng
cua san phdm va trong viec xay dung y liking tot cho san phdm bang doanh thu lay
to viec ban lai cac san phdm trong th6i han hieu tut cua hop dong nay; do do khOng
c quern hop nao viec ket thtic hop dong nay do bat ki li do gi se tao ra bat ki
quyen hanh dOng nao cua NPP lay lai tien den bit phu them hoac cac khoan thiet
hai to AGIP
16. KhOng canh tranh
Trong th6i han hieu lkrc dm hop dOng nay NPP se khOng phan ph6i cac san
pham to tham gia bang bat ki cach nao khac trkrc tiep hoac gian tiep vgi cac hang
hod cc-) ban chat canh tranh vgi cac san phdm trong hoac ngoai Dia Hat ma khOng
c sir clang y till& bang van ban cua AGIP
17. Chi dinh ngairi phan ph6i cap (Judi (NPPCD)
a) NPP se c quyen chi dinh NPPCD va cac diem ban hang dkr tra va phan phoi
cac San Phdm trong pham vi Dia hat thay mat cho NPP
b) NPP cling se dam bao rang tat ca NPPCD va cac diem ban hang tai moi th6i
diem se luOn luon ton trong va tuan thu cac diet' kien nhu qui dinh trong hop dong
nay, nhang dieu ma ap dung cho ca nhirng ngugi nay nhu la cac NPP va NPP se
chiu trach nhiem cho viec tuan thu theo cac diet! nay
18. KhOng khir6c tir
Cac ben hien va &Ong Y rang viec khOng yeu cau hoc chain tre cua AGIP
trong viec yeu cat thgc hien hoac tuan thu vgi bat ki dieu khoan nao cua NPP cua
hop dOng nay se khong anh hugng den quyen cua AGIP yeu cau thuc hien hoac
tuan aka da bi khugc tir bang van ban
19. Chuy61 nhugng
Hop dong nay se rang buOc dgi \Tad cac ngirgi 1(6 tiep va ngugi thaa hugng cua
moi ben trong hop dong nay; nhung vgi dieu kien rang hop dong nay se khOng dugc
303
NPP chuyen nhuong chuyen giao hoac ban toan be hoac met phan trir khi cac dieu
khoan cita viec chuyen nhuong, chuyen giao hoac viec ban do dugc AGIP thong
bao bang van ban
20. BAo lurt cac di6u khoin
a) DU kgt tit& hop (long nay cac dieu khoan, cac bao dam cam kgt va cac bao
lanh c6 trong va dugc dAn chigu den trong hop (long nay se tigp tuc ton tai va rang
buec cac ben va moi chit the ve cac dieu tren hoac met phan cua cluing ma chua
hoar' thanh hoac phai dugc thuc hien hoac can phai dugc giai guy& hoac nham de
tao ra hieu luc dgi vai mei va tat ca cac diet' nay
b) Cam ke't cita cac ben van ton tai va se duot xem xet nhu c6 hieu luc hoan
toan cho du bat ki thay dei nao ve viec nom gill c6 phan va quyen phan phoi hoac
cgu thanh cita AGIP
c) Ngu bat ki met hoac met se diet' khoan trong hop (long nay hoac bat ki cac
chang tir hoac Bien ban nao lien quan deb hop dOng nay se kh6ng c6 hieu luc,
khOng c gia tri phap 11 del \lei bat ki mat nao, theo 141 ap dung hieu luc tinh hop
phap va tinh kha thi cita cac dieu khoan hoac met phan cita cac dieu khoan nay van
se kh6ng bi anh hueng bang bat cu cach nao
21. Trong tai
Tgt Ca cac tranh chgp nay sinh lien quan deb hop (long nay cuCii cling se cluoc
giai quygt theo cac qui dinh cita lust trong tai Singapore va bgt ki sira del nao &la
lust nay trong arng then ki; cac thit tuc t6 tung se &roc tign hanh tai Singapore; Luat
Singapore se dugc dp dung
22. Hqp thing tong the
a) Hop clang nay the hien toan be cac cam kgt cita cac ben, x6a be va thay the
bgt ki cac cam kel viec trinh bay su hieu bigt hoac cac diet' ngdm hieu nao
b) Bgt ki sira dei nao cita hop dong nay phai dugc lam bang van ban va &roc
dai dien &roc phep cita AGIP va NPP ki; kh6ng c6 met thay dei nao c hieu ltrc
bang cach xac nhan hoac chap nhan cac don hang, h6a don, cac matt hueng dAn giri
hang hoc cac cluing to tuong to khac cita AGIP c cac dieu khoan khac vet hoac
b6 sung vao cac diet.' qui dinh trong hop (long nay trir khi cac xac nhan hoac chap
nhan do qui dinh re rang rang no la de sira dei hop (long nay
23. GiAi thIch
a) Bat ki viec din chigu nao den bat ki ben nao trong hop (rang nay bao gom ca
nguei duet chuyen nhuong va/hoac nguei kg tigp quyen hau va/hoac dai dien ca
nhan
3C4
DA 1(1' BoI
DA KY BOI
305
306
- Head Office:
Project cost:
Legal capital:
- Loan:
The juridical responsibilities of each party for the third party are within its
contributed capital
All legal capital will be contributed in a lump sum or installments at
307
appropriate periods agreed on by both parties and the State Committee for Cooperation and Investment
If either of the two parties does not follow the Schedule of Capital
Contribution, that party shall have to inform the other party within 90 days
before and shall be responsible for any losses caused by the such failure
CAPITAL CONTRIBUTION
The capital contributed by Party "A" shall be US$ x,500,000.00 comprising of:
- Land rental for xx years
- Fees for the retirement and relocation of present employees
- Fees for clearing the construction area
The capital contributed by party B shall be US$ xx,500,000.00 comprising of
architectural design, materials, equipment, working capital and other expenses.
CAPITAL INCREASE
On the basis of the needs of development during the operation, the Joint
Venture Capital can increase its legal capital in the following forms
- Reinvesting the profit share of each party
- Contributing new capital
The increase of the legal shall be agreed by both parties and be approved by the
State Committee for Co-operation and Investment
CAPITAL TRANSFER
During operation, either party can transfer its capital contribution to the other
party or the third party approved by the State Committee for Co-operation and
Investment
Article 4: DURATION OF THE CONTRACT
The stipulated duration of this contract is xx years from the official date of
establishment of the Joint Venture and can be extended by the agreement of the
Parties hereto together with and subject to the approval of the State Committee
for Co-operation and Investment
Article 5: RESPONSIBILITIES OF EACH PARTY
and other necessary permits for the establishment of the Joint Venture
Company
3. To obtain all necessary permits for Party B's personnel to stay and work
in Vietnam
4. To take part in controlling in the Joint Venture
5. To do all necessary tasks to facilitate the operation of the Joint Venture
PARTY B'S RESPONSIBILITIES
1. To contribute its capital (as stipulated in Article 3 of this contract).
2. To take part in controlling the Joint Venture
3. To provide its know-how and management experience to the Joint
Venture
4. To advise on and supply the technical data for machinery necessary
equipment and materials for the Joint venture so that party A can study
their use and supply for an import quota when necessary
5. To study markets and imported commodities such as machinery,
equipment, materials, accessories, etc., through its Head Office and/or
Branches
6. To provide Party A with lists and prices of commodities which are not
available in Vietnam
7. To ensure capital for building the foundation of the Hotel and Business
Centre.
8. To ensure the availabilities of the working capital to make the business
profitable
9. To market the Hotel and Business Centre and use its best endeavours to
attract and bring in foreign tourists to patronise the Hotel Business
Centre
MUTUAL OBLIGATIONS
1. On the basis of labour contracts, the Joint Venture Company shall
employ, appoint, terminate and supervise the Board of Directors in their
employing, appointing, terminating, and supervising other personnel of
the Joint Venture
2. Salaries and subsidies of all personnel of the Joint Venture shall be paid
by the Joint Venture Company
309
By Party B
By Party A
30%
- Party B:
70%
311
after xx years
after xx years
Party A:
35%
40%
50%
Party B:
65%
60%
50%
All matters that are not provided for in this Contract but are necessary for the
carrying out of the objectives of the Joint Venture Company will be carried out
by each party in accordance with the Charter of the Joint Venture Company or
the applicable Investment Law and Implementing Decree
This contract is made in 10 copies in English and Vietnamese and comes into
effects on the date of issuance of the Investment License, Signed on
20
FOR THE VIETNAMESE PARTY:
FOR FOREIGN PARTY
DEPARTMENT FO HOME TRADE HANOI IMEXPAN-PACIFIC INCORPORATED
DUONG DINH
DIRECTOR
314
JOHNNATHAN H. NGUYEN
PRESIDENT
Horn nay, ngay ... 1992, cac ben thea thuan 14 hop dong lien doanh thanh lap
cong ty Lien doanh (JVC) vai cac (lieu khoan va dieu kieri nhu sau:
Dieu 2: Ten, tru sa, muc dich cua Ong ty lien doanh
Cong ty Lien doanh duoc goi ten nhu sau:
- Ten giao dich qu6c tO: Trung tam Throng mai T6ng hop HA Nei
(trung tarn).
- Try se chinh: Goc nga tu Hang Bai, Trang Tien - Ha Nei CHXHCN Viet Nam
COng ty Lien doanh se la met cong ty trach nhiem him han ce tu cach phap
nhan va hoat deng theo phap luat Viet Nam, va cac dieu khoan diroc quy dinh trong
Hop clang Lien doanh nay va trong diet' le cua Trung tam
- Muc tieu cua Cong ty Lien doanh
Xay dung va dieu hanh met khach san 4 sao, met Trung tam Thuong mai dat tieu
chudn quOc te' tren phO Hang Bai, tai goc nga tu Trang Tien, Hang Bai, Ha Nei Viet Nam
315
Di6u 3: V6n dau ttr, v6n phap dinh, g6p v6n, tang von va chuye'n nhurcmg
v6n
- T6ng s6 v6n dau tu: 30 trieu USD
- Vgn phap dinh: xx trieu USD va do hai ben (long g6p nhu sau:
Ben A: xx trieu USD = 30%
Ben B: xx trieu USD = 70%
- Von vay: 15 trieu USD se dugc ben B thu xep vay fir cac t6 chdc tai chinh
khac de dau to vao Trung tam; cac diet' lcien vay niacin phai dugc su thoa thugn cua
ca hai ben
Trach nhiem phap ly cua moi ben dgi vgi ben thir ba dugc gigi han theo s6 von
dong gop
Tat ca s6 von phap dinh se &roc Op 1 lan hoac nhieu lan theo tie'n dO dd dugc
ca hai ben va Uy ban Nha nugc ve Hop tac va Ddu tu thee thuan
Nairrigt trong hai ben khong dam bao gOp von theo tie'n clg, ben do phai thong
bao trugc cho ben kia trong yang 90 ngay va phai chiu trach nhiem ye bat cu ton
that nao gay nen bgi su cham tre do
Hong Op
Khoan von do ben A Op la 4,5 trieu USD dugc xac dinh bao
- Tien thue dat trong 50 nam
- Chi phi tro cap va b6 tri cOng viec cho nhiing lao &Ong hien nay
- Chi phi giai phong mat bang xay dung
Khoan von do ben B dong Op la 10,5 trieu USD bao
Cac chi phi thi& ke"
ky thu4t, my thuat, nguyen vat lieu xay dung, thi& bi, von luu Ong va cac chi phi
khac
Tang von:
Tren w s& nhu tau phat tridn trong thOi gian hoat Ong C6ng ty Lien doanh CO
thd tang v6n phap dinh &rad cac hinh that:
316
Ben A:
1. Ding gop phdn von dm minh (nlnr quy dinh & diem 3).
2. Hoan thanh cac tai lieu can thief de xin gidy phep ddu to va cac gig)/ phep
khdc lien quan den viec thanh lap cOng ty Lien doanh
3. Lam cac thu tuc can thiel cho phep ngtrgi dm ben B cu trti va lam viec tai
Viet Nam
4. Tham gia vao dieu hanh Lien doanh
5. Thkrc hien cac trach nhiem can thief de dua Lien doanh vao hot doing
Ben B:
1. Dong gop phdn von am mirth (nhtr quy dinh & diem 3).
2. Tham gia dieu hanh Lien doanh
3. Cung cdpb1 quye't, kinh nghiem quan ly cho Lien doanh
4. ThOng bdo va cung cap ddy dU cac tai lieu, s6 lieu k y- thudt can thie't ve may
moc, thie't bi, nguyen vat lieu can thiel cho Lien doanh de ben A co the nghien cdu
sir dung va xin phep han ngach nhap khdu khi can
5. Nghien ctIu thi trugng va hang hod nhdp khdu nhu may moc, thief bi,
nguyen vat lieu, phu kien ... qua Tru s& chinh hoc ca cac chi nhanh
6. Cung cap cho ben A danh muc va gia ca nhilng hang hod khOng CO Cr Viet
Nam
7. Dam bao dit von cho viec xay dung khdch sari va Trung tam Thuung mai
8. Dam bao von ltru doing de kinh doanh co hieu qua
9. Kinh doanh khdch san va Trung tam Thuung mai, sir dung c hieu qua de
thu but khdch du lich ntroc ngodi de'n Trung tam thuung mai khdch sat)
317
1. Tren co s6 hop &Ong lao deng, Lien doanh tuyen dung, bdu, bai mien, giam
sat Ban Giam dOc va nhan vien trong cac c6ng viec cila ho va giam sat cac thanh
vien khac cita Lien doanh
2. Tien luting va phu cap cua tat ca thanh vien trong Lien doanh dugc Lien
doanh tra
3. Tien luting va phu cap cua nhan vien la ngtred nu& ngoai se duqc tra bang
ngoai to
4. VI lgi ich cUa Lien doanh, hai ben c6 the yeu cL Hoi dOng quan tri thay
d6i nhan sty; bdt cu su thay d6i nao deu phai &roc thtrc hien khi c617 do hop IS,
5. COng dan Viet Nam duqc uu tien tuy6r1 chon vao lam viec trong Lien
doanh; Lien doanh c6 the thue chuyen gia nuarc ngoai cho cac cOng viec yeu cdu ky
Wang ky thuat cao ma cac cOng dan Viet Nam khong the dam nhan &roc
6. Bdt cu quyen loi va nghia vu nao cua ngtrad Viet Nam lam cho Lien doanh
den duot dam bao bang hop (long lao dOng phit hop vai phap lenh ve lao deng cita
Viet Nam d6i vad cac xi nghiep c6 nguon von nu& ngoai
7. Tien luting va phu cap cna nhan vien Viet Nam duoc tra bang (long Viet
Nam
8. Trong th6i gian hoat Ong Ban Giam d6c Lien doanh se t6 chdc chuong
trinh dao tao thu6ng xuyen cho nhan vien Viet Nam lam viec cho Lien doanh
9. Trong th6i gian hoat Ong Ban Giam d6c Lien doanh se t6 chtic chuong
trinh dao tao va t6 chdc cac chuyen di tham quan cho cac giam d6c ngu6i Viet Nam
lam viec cho Lien doanh
10. Hai ben se th6ng bao cho nhau cac chinh sach lon lien quan d6n Lien
doanh
Dieu 6: Quin tri di6u hanh lien doanh
Ing ddu Lien doanh la HO (long Tian tri Om 9 thanh vien duoc chi dinh nhu
sau:
- Ben A se chi dinh 3 thanh vien
- Ben B se chi dinh 6 thanh vien
Quyen han, trach nhiem hoat Ong va nhiem kS/ cua HOi &rig quart tri se &roc
qui dinh trong Dieu 10 cua Lien doanh
Ban gicim chic:
HOi clorig quart tri se chi dinh Ban giam doc tren co s6 them thuan cua hai ben
Ban giam d6c cila Lien doanh trong nhiem kSr dau tien trong 5 nam se dtroc chi
dinh nhu sau:
318
- 'Ring giam dgc va Pho giam dgc phu trach tai chinh: do ben B cir
- Giam doe dieu hanh va ke toan trugng: do ben A cir
Dieu 11: Loi nhuan - Phan chia loi nhuan - Lap quy
Lien doanh va ben nugc ngoai phai san sang thuc hien cac nghia vu tai chinh
dgi vgi co quan CSC dia. Chinh phit Viet Nam nhu quy dinh trong Gia'y phep dau to
do US', ban Nha nugc ve Hop tac va Dau to cap
Sau khi hoan thanh tat ca cac nghia vu tai chinh vgi Chinh phi). Viet Nam Lien
doanh se sir dung 5% lgi nhuan de lap quy du cac guy khac se dugc lap phi' hop
vai Luat Viet Nam
QuSi du tra dugc han the dugi 25% von phap dinh theo dieu 30 Luat Dau
Ban Giarn doc se quye't dinh phan chia lgi nhuan theo ty le sau:
Trong xx nam dau: Ben A: 30%; Ben B: 70%
Sau xx nam:
Ben A: 35%; Ben B: 65%
Sau xx nam:
Ben A: 40%; Ben B: 60%
Sau xx nam:
Ben A: 50%; Ben B: 50%
Ben B c6 the chuyen nhang khoan sau ra nugc ngoai:
- Lai nhuan to kinh doanh
- Tien lai do cung cap dich vu va chuyen giao ky thuat
319
320
321
Fax: 84-31-525273
And:
A-PRO CORPORATION
Add: 12F 1216-1, Huyndai 41 Tower, 917-9, Mokdong,
Yangcheonku. Seoul, Korea
Tel: 0082-2-764-7811 Fax: 0082-2-764-7813
Account: 327-JSD-10620-6 at KOREA EXCHANGE BANK,
SEOUL
Represented by: Mr. Jai Gyu-Kweon- President
Hereinafter clled the Seller
This contract was made in VIETNAM and entered into on this November
8.2002 by between APRO METAL CORP., organized and existing under the
law of KOREA (hereinafter referred to as "The SEller") & HONG BANG
SHIP BUILDING INDUSTRY & CONSTRUCTION CO. (VISDEMCO).
organized and existing under the law of Vietnam (here in after referred to as
"The Buyer")
WITNESSES
Whereas, "Seller" sells the products (to be hereinafter defined), and
Whereas, "Buyer" buys the products which shall be specified in the
ADDENDUM 1
Now therefore, in consideration of mutual convenient herein contained, the
paties agree as follows:
322
+ 3/3 Detailed packing list showing net/gross weight in total and total
pcs
+ 01 orginal or 01 copy of Certificate of quantity, issued by NKKK at
the loading port
A copy of fax message advising the applicant and issuing bank of shipment
particulars within 03 days after shipment, including vessel ETD, ETA, net and
gross weight, B/L number and date, commodity, total amount, name,
nationality and age of vessel, shipping agent in Haiphong, invoice value and
L/C number
323
324
Article 7. Inspection:
The Buyer can invite SGS to inspect the Specification of cargo. If any claim for
Specification, SGS's survey report on type should be final
Inspection fee will be borne by the Buyer
Article 8. Arbitration
In case of disputes and the parties can not reach an amicable settlement or any
claim concerning this contract within 80 days from its occurrence, the case will
be transferred to International Arbitration Center of the Chamber of Commerce
and industry of Vietnam for final settlement under rules of conciliation and
Arbitration of International Chamber of Commerce. The decision taken by this
Arbitration will be final and all the fees and expenses incurred in the
Arbitration shall be borne by losing party
Article 9. Entirety
This contract constitutes the entire contract between the parties and supersedes
all previous negotiations, representation, undertakings hereto fore made
between the parties with respect to the subject matter, and shall not be modified
except by the mutual agreement in writing by duly authorized officers of the
parties hereto
Article 10. Notice
Any notice, request, consent, offer or demand required or permitted to be given
in this agreement shall be in written and shall be sufficiently given that it
should be delivered in person or sent by registered airmail, telex or cable
confirmed by registered ainmail letter
Article 11. Amendment
This contract is not changed, modified or amended by the parties of this
contract provided that such change, modification or amendment is in written
and signed by both parites
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representative as of the date first above
written.
325
ADDENDUM 1
Contract No.: APRO-02MV-117
Date:
November 8. 2002
Fax: 84-31-525273
And:
A - PRO CORPORATION
Add: 12F 1216-1, Huyndai 41 Tower, 917-9, Mokdong,
Yangcheonku. Seoul, Korea
Tel: 0082-2-764-7811 Fax: 0082-2-764-7813
Account: 327-JSD-10620-6 at KOREA EXCHANGE BANK,
SEOUL
Represented by: Mr. Jai Gyu-Kweon- President
NO
COMMONDITY
QUANTITY
(tons)
UNIT
PRICE
(USD/tons)
1,484,846
21$
1,484,846
AMOUNT
CNF FO
Haiphong port
(incoterm
2000)
313,302.51
313,302.51
(Three hundred thirteen thousand three hundred United states dollars and
two and fifty one cents only)
326
2. Origin:
3. Payment:
4. Packing:
5. Shipment:
IN NOVEMBER. 202
Seller
327
: S6 1 dugng
Dieu 1: Hang hoa - Quy cach - S6 Iuung - Gia ca - Gia tri tien va nhan
hang
San pham se clugc m6 to chi tie't trong phan phu luc neu r6 hang hoa, gia ca, s6
lugng va ck chi tie't tao nen cac phan cila Hop dong nay
328
Nguai nhan hang duqc chi dinh bai ben Mua la C6ng ty CNTT va xay dung
Hong Bang (VISDEMCO)
Dieu 2: Di6u khoin thanh loan
Nguai Huang lqi: A-PRO METAL CORPORATION
12F 1215-1, HUYNDAI 41 TOWER, 917-9 MOKDONG YANGCHONGU,
SEOUL, KOREA
Tel: (82) 2-764-7811
329
+ Tat ca cac chi phi ngan hang ngoai Viet Nam do ben Ban chiu, cac chi phi
ngan hang ben trong Viet Nam do ben Mua chiu. Chi phi sira d6i L/C do ben yeti
cdu sira doi chiu nix khi L/C m6 khOng pha hop voi Hop dOng
330
sira chita dugc lam thanh van ban va dugc hai ben 14 xac nhan
Hai ben ding thoa thuan thuc hien nghiem file ban hap dong nay.
331
PHU LUC 1
Hop thing s6: APRO-02MV-117-
Ngay: 08/11/2002
Git?a
S6 Wong (MT)
S6 Wog
(MT)
Don gia
USD/MT
1.484.846
200
1.484.846
313.302,51
313.302,51
(Ba train inti'ai ba ngan ba tram linh hai Do la 11/15" va nam meal mot xen)
332
: Nhat Ban
3. Thanh town
4. Dong g6i
: Hang rOi
5. XeP hang
: Thang 11/2002
333
Shipment port:
Destination port:
Partial shipments:
Transshipment:
Packing:
334
Origin:
Vessel age:
Shipment date:
336
Gifra : CONG TY CONG NGHIEP TAU MA' VA XAY DUNG HONG BANG
: SO 01 DUONG HA NOI - HONG BANG - HAI PHONG
FAX : 031.52 52 73
- DIEN THOAI : 031.824 758 / 52 52 82
- DIA CHI
- DAI DIEN
Va
- Dia chi
- Dien thoai
-
Dai di'en
: ++ 82 2 775 1110
Y 4 ker Hap
day
Dieu 1 : Hang hoa - quy cach
Ten hang
Kich
Trong lugng
: 130 MT (03%)
Trong dc5 : H-Beam ph'6 lieu = 112 MT (03%); 6ng ph'6 lieu : 18 MT (03%)
: 130 USD/MT CIF LT Cang Hai Phong
Don gia
(Incorterm 2000
Gia tri
: 24.700 USD
Cang den
Chuyen tai
Bao bl
Xufat
: Korea
Tu6i tau
Chi ti6t x6p hang se thOng bdo cho ben Mua bang fax sau khi x6p hang len tau.
Dieu 3 : Di6u khoin thanh Wan
Thanh town bang TTR trong vOng 03 ngay lam viec sau khi hang ve den Cang
Hai Phong vao tai khoan cUa ben ban nhtr sau :
KOREA EXCHANGE BANK YOUIDO BRANCH SEOUL, KOREA
SWIFT BIC CODE : KOEXKRSE
ACCOUNT No. : 061-JSD-101512-1
Ngubi hu6ng lgi : HAN STAR SHIPPING Co., LTD.
Di6u 4 : Chang tit tai lieu sau de giao dich :
- 3/3 be) van don sach ghi ro "cu6c tra trait" ky hau de trong va thuc hien lenh
va thong bdo cho ben Mua la COng ty CNTT va XD Hong Bang
- 03 Hoa don thuong mai da ky
- 03 Ban Packing list
- Giay chting nhan trong lugng/s6 Wong va chat lugng do 01 COng ty giam
dinh cap
- 01 ban g6c va 02 ban sao Gigy cluing nhan xuat xti do Pheng Thuong mai va
cang nghiep KOREA phat hanh
Trong vOng 03 ngay lam viec sau khi x6p hang ben Ban phai thOng bao cho
ben Mua bang Fax cdc thOng so cna tau : Ten tau va quoc tich, s6 lugng hoac trong
lugng hang hod, gid tri hod don, s6 B/L, ngay tau khoi hanh, ngay du ki6n tau d6n,
Dal ly tau Wen tai Hai PhOng, VN
Dieu 5 : Giant dinh
0,2% dung sai ve trong lacing to cang x6p den cang do dugc chap nhan
Trong trueing hop It hon hoac vu6t qud 0,2%, Ca hai ben Bdn va ben Mua dOng
tra lai hoac tra them s6 tien sau khi khau trir nhung phdn dugc phep mot cach
thich hop nhat. Phan ghi no hoac phan c ng tren co so Ban bdo cao giam dinh qua
can ci;ia met co quan giam dinh dOc ldp tai cang del" n6u dugc yeu cdu
338
(sir
Bat kSi 17 do, tinh huong sira d6i nao dua ra cho ben kia phai lap thanh van ban
va dugc hai ben thong nhat moi co gia tri, chiing nhan dugc dua ra tai Phong
Thuong mai tai nod xay ra tranh chap merit co gia tri. Viec hoan c6 gia tri trong \Tong
60 ngAy, lieu qua cac ben c6 quyen huy bO Hop dong, trir khi trong truing hop ca
hai ben dong yr, khOng ben nao co quyen khieu nai ve nhang thiet hai
Dieu 8: Trong tai
Truing hgp tranh chap, cac tranh chap nay sinh trong hgp dong nay phai duqc
thao luan ban bac gifia cac ben, nen khOng giai quy& dugc trong vong 60 ngay thi
phai dua ra Trung tam trong tai Quoc to tai Viet Nam giai quyet theo Drat. NgOn
nglt cUa trong tai IA tieng Anh. Cac ben (long y rang bat cd quy& dinh nao phi.' hop
vdi dieu khoan nay se la Quyet dinh cueii cling va bdt buOc cho ca hai ben. Dia
diem giai quy& tranh chap se la thii do clia nude Nguii Mua
Chi phi trong tai va nhang chi phi khac do ben thua kien chiu chi phi
Dieu 9 : Dieu khoan chung
Dai dien cila ben Ban se cling tham du viec (la hang va giam dinh hang hod.
Ben Mua co quyen khieu nai ve chat luting khac biet cila hang hoa va de giai
quy& vdi dai dien ben Ban trong yang 03 ngAy sau khi hoAn thanh viec dot hang
Bat 14 sira d6i nao clia ban Hop (long nay chi c gia tri khi dugc lap thanh van
ban va dugc hai ben xac nhan. Hop dong c6 hieu hrc sau khi hai ben 14 ket
Hop dOng dugc lap thanh 04 (bOn) ban bang tieng Anh, co gia tri nhu nhau,
moi ben gilt 02 (hai) ban
Neu dugc sir dong y cUa hai ben Mua va ben Ban, hop dong 14 qua Fax coi nhu
IA ban hop dOng chinh.
DAI DIEN BEN MUA
DAI DIEN BEN BAN
339
Part!!
340
1. Applicable Law
This Contract and all questions relating to its formation, validity, interpretation
3
or performance shall be governed by the law of
(NOTE: The subclause below is optional)
This Contract shall not include, incorporate or be subject to the provisions of
the "United Nations Convention on Contracts for the International Sale of
Goods"
2. Definitions
In this Contract the words below have the meanings ascribed to them unless the
context otherwise clearly dictates:
2.1. Unless expressly modified by the parties, "FOB", "CIF" and other trade
terms have the meanings and obligations ascribed to them in Incoterms 2000,
Publication 460 of the International Chamber of Commerce, Paris
2.2. "Contract" means this Contract, its preamble and appendices, as well as
all documents expressly listed as Contract documents or otherwise
expressly mentioned in this Contract
2.3. "Goods" means the Goods specified in Clause 4 below
2.4. "Price" means the Price as specified in Clause 9 below payable to the
SELLER for the Goods
2.5. "Delivery" means Delivery as specified in Incoterms 1990 under the
Incoterm or Incorterms agreed in this Contract
341
2.6. "Day" means a calendar Day. For the purposes of this Contract,
Saturdays, Sundays and all holidays are considered as Days
2.7. "Direct" costs and losses are costs and losses arising in immediate
connection with any failure to deliver, any delay in Delivery or any
defect in Goods delivered under this Contract. Such costs and losses
must have an immediate, foreseeable and provably causal connection
with the delay or defect. All other costs and losses are deemed by this
Contract to be "indirect"; In particular, loss of profit, loss of use, and
loss of contract are considered indirect losses
2.8. "Government" means national Government, local Government, local
authorities, and their agencies. In particular customs and/or excise
departments are considered as Government agencies
2.9. "Termination" means the discharge of the Contract by one of the
parties under any right expressly granted by this Contract. The
discharge of the Contract by any other right arising from the
applicable law or any other source is deemed to be "cancellation" of
the Contract
2.10.
3. Entire Agreement and Contract Documents
This Contract constitutes the entire agreement and understanding between the
parties. There are no understandings, agreements, conditions, reservations, or
representation, oral or written, that are not embodied in this Contract or that
have not been supersede by this Contract
(NOTE: The subclause and list below are optional)
In addition to the text of Contract itself, the documents listed below shall form
part of the Contract. All listed documents and the clauses of this Contract shall
be read, if possible, so as to be consistent. In the event of conflict, the order of
precedence for the provisions and documents which constitute this agreement
shall be as follows:
(NOTE: The list below contains examples only. Delete as appropriate)
a. Any alterations made on the face of the printed Contract
b. The Contract itself
342
c. Specifications
d. Manufacturing drawings
e. The BUYER's Special/General Conditions of Purchase
f.
4. Scope of Supply
The Goods to be delivered under this Contract are specified
2
5. Delivery
343
On the surface of each package delivered under this Contract shall be marked:
the package number, the measurements of the package, gross weight, net
weight, the lifting positions the letter of credit number, the words RIGHT SIDE
UP, HANDLE WITH CARE, KEEP DRY, and the mark
2 and are to be well protected against
Goods are to be packed in
dampness, shock, rust or rough handling. The SELLER shall be liable for any
damage to or loss of the Goods attributable to improper or defective packaging.
(NOTE: The following subclause is relevant only to deliveries in Germany).
344
345
be liable for any indirect loss or damage, as defined in Clause 2.7 above, arising
from or in connection with late Delivery of any Goods. Payment of liquidated
damages by the SELLER shall not preclude the BUYER from seeking
compensatory damages from the SELLER for any loss, injury or damage
arising from or in connection with late Delivery of any Goods. In particular the
BUYER shall be entitled to compensation the SELLER for any indirect or
consequential loss or damage, including but not limited to loss of profit, loss of
use or loss of contract, arising from or in connection with late Delivery of any
Goods. However, payments made as liquidated damages shall be offset against
any compensatory damages recovered from the SELLER for the late Delivery
of any Goods
8.4. Termination for delay
In the event that the SELLER becomes liable to pay the maximum sum payable
as liquidated damages under Clause 8.3 above, then the BUYER shall, upon
due notice, have the right to terminate the Contract
9. Price
The Price for the Goods to be delivered under this Contract is
2)
This Contract shall not come into force under Clause 16 below until the
SELLER has received advice that the letter of credit has been opened in his
favour and has ascertained that the terms are in accordance with those agreed
between the parties. Any discrepancy between the terms agreed by the parties
and the letter of credit as issued shall be notified by the SELLER to the
BUYER immediately
346
347
The SELLER warrants that the Goods supplied under this Contract shall at
the date of their Delivery:
a. Be free from defects in material
b. Be free from defects in workmanship
c. Be free from defects inherent in design, including but not limited to
selection of materials, and be fit for the purpose for which such Goods
are normally used
If any defect provably present in any of the Goods on the date of Delivery
comes to light during the defects liability period, then the BUYER shall
forthwith notify the SELLER. The SELLER, without undue delay, shall at his
own risk and cost and at his discretion repair or replace such item or otherwise
make good the defect
The SELLER's liability for defects is subject to the BUYER having adhered to
all procedures and instructions applicable to the of the item, and
expressly excludes damage to the Goods caused by fair wear and tear or by
misuse occurring after Delivery
12.2. Defects Liability Period
The SELLER shall be liable for defects which come to light during a period
of
2 days from
3 After the end of this period, the BUYER shall
have no right to raise claims of any kind against the SELLER for any defect in
any Goods of the SELLER's supply
The defects liability period shall be prolonged by the length of any period
during which the Goods cannot be used by the BUYER because of a defect.
Condition of use (e.g., "storage, installation, use or operation")
Number (of days)
3 Date of start of defects lialibity period
2
348
However, if new Goods are delivered to replace defective Goods, the defects
liability period shall not begin again on the replacement Goods
12.3. Limitation of Defects Liability
In the event of any action or lawsuit by a third party resulting from any injury,
loss or damage to the third party caused by a defect in the Goods delivered
under this Contract, the party against whom the action or lawsuit is brought
shall bear all costs, expenses, awards of damages or legal fees arising therefrom
14. Taxation
All income taxes, value added taxes, customs duties, excise charges, stamp
duties or other fees levied by any Government, Government agency or similar
authority shall be borne exclusively by the party against whom they are levied
15. Assignment of Rights and Delegation of Duties
The rights under this Contract may not be assigned nor the duties delegated
by either party without the prior written consent of the other party
' Name of the party giving the indemnity (BUYER or SELLER)
2
349
If either party is prevented from or delayed in, performing any duty under
this Contract, then this party shall immediately notify the other party of the
event, of the duty affected, and of the expected duration of the event
List of events which must occur before contract comes into force
Number (of days)
List of events not considered to be "force majeure events"
350
351
The effective date of the notice shall be the date of FAX transmission. In
the event of a dispute about the receipt of a FAX, however, the effective date of
the notice shall be the date of receipt of the registered letter or a date seven days
after the registered mailing, whichever is earlier
Notices shall be sent to the following addresses and FAX numbers:
SELLER:
Address:
FAX Number:
BUYER:
Address:
FAX Number:
Any change in an address or FAX number shall be the subject of a required
notice under this Contract
23. Settlement of Disputes
All disputes arising in connection with this Contract shall be finally settled
under the Rules of Conciliation and Arbitration of the International Chamber of
1 arbitrators appointed in accordance with the said rules
Commerce by
The place of arbitration shall be
be English.
352
SELLER
BUYER
Title:
Title:
Date:
Date:
Place:
Place:
353
(Neil tzgadi ban cung cap hang theo cac qui cach pham chat khong thOng
dyng, piton ma ddu c the? neu;)
1. Ca hai ben hidu rang hang hod &roc sari xuat theo cac qui cach phdm chat
rieng cna ngued mua c6 thd khOng c6 gid tri rat thap tren thi trabng to do
(Neu tzgaefi mua tin cay hoan town veto rung lyr chuyen mein ctia tzgadi bcin,
phdn nd ddu c the' neu..)
2. NgtrOi ban hidu rang, ngtred mua, trong qua trinh xac dinh qui cach phdm
chat cua hang hod dd tin ttreing rat nhieu vao nang ltyc chuyen m6n cua ngtrOi ban
(Neil ngdai tnua a Thai Lan, va neu giao hang co khuyet tat hoac hang khOng
hoan chinh lam an hai tighiem tro zg cho /wadi mua, phdn ma ddu co thi neu:)
(1)
Ten ding ty
354
3. Ngu6i bdn hieu rang ngeri mua da c6 Hop dong bdn lai cac hang hod va
rang neu hang hod co khuyel tat hoac khOng phu hop ve chit luqng hoac so Wong,
ngu6i mua c6 the chiu trdch nhiem phdp ly ye nhUng thiet hai vuot tren tri gia
4. Ngtroi bdn hieu rang ngueri mua du dinh lap rap cac hang hod link kien thi6t
bi de ban lai, va rang neu hang hod c6 khuyet tat hoac khOng tuan thil chit lung
hoac so Wong, ngu6i mua co the chiu trach nhiem tru6c phdp ly ve cac ton that lon
1. Luat au dung
Hop (long nay, va tat ca cac van de lien quan tai viec xay dung Hop (long, hieu
cdch then giai hoac dux hien Hop (long se duoc dieu phOi b&i luat cua
(2)
355
ciia hang (IA giao theo Hop Meg nay. Cac chi phi va t6n that do phai c6 thd dugc
danh gia ngay va hau nhu phai co quan h@ nhan qua voi cham tre hoac khuye tat.
Tat ca cac chi phi va t6n that khac cAa Hop &rig nay dugc coi la "khOng truc
Dac biet, t6n that loi nhuan, ten that sir dung va t6n that hop d6ng deu la cac t6n
that khOng nix tier,
2.8. "Chinh pile la chinh phu qu6c gia, chinh quydn va cac nha cht'rc trach dia
phuong, va cac co quan cua ho. Dac Net, hai quan/cac co quan chinh guy& thira
hanh deu la cac co quan chinh phu
2.9 "Cham dirt" la su ket thilc Hop dong b6'd mot trong cac ben theo bat dr
guy& nao dugc qui dinh trong Hop (long nay. Viec ket tInic Hop (Ring theo bat ctl
quydn nao khac phat sinh tir luat ap dung hoac bat al nguOn nao khac deu dugc coi
la "sir huS, b6 " Hop dong nay
2.10. (Cac diet' khac)
Ngoai chinh nOi dung ciia Hop (long, cac tai lieu liet ke sau day se IA mot phan
cila Hop (Ring. Tat ca cac tai lieu va cac dieu khoan ciia Hop Meg se dugc hidu,
lieu co thd, mOt cach thOng nhat. Trong tru6ng hop co mau thuAn, trat to uu tien cua
cac diet' khoan va cac tai lieu lam nen sir thoa thuan nay se la nhu sau:
(Ghi cha, danh sach sau day chi la vi du)
Bat cu sira d6i nao ddu lam tren Hop (Ring g6c
a) Chinh ban than Hop (long
b) Cac qui each phim chat
c) Cac ban ye ky thuat
' Lief ke cac thoa thuOn Mac cda cac ben
356
5. Giao hang
5.1. Ngay, dia diem va cac dieu ken giao hang
(') tilt&
(5)s6 ngay
(6)Ngay tau den
(7)Ten cang gal hang
357
(2)
5.4. Xily bao bi (diesu khocin nay chi ap dung tai CHLB Dike)
Trach nhiem xir ly bat cu loai bao bi nao cling thuOc ve ngtred mua.
6. Thong bao giao hang
(Ghi chit: di ett khocin nay Op dyng rOng
hang dttqc ti hanhnu'dc tigadi ban).
cho cac
Ngay khi giao hang, ngued ban phai th6ng bao cho ngueri mua ve viec giao
(4)
hang bang
(3) Thong bao nay bao gom
7. Giam dinh trudc khi giao hang
7.1. Giam dinh bai ngutri mua
Ngued mua c6 the, voi quyen lua chon cira mInh, giam dinh truck khi giao
hang, It nhat
(5) ngay thkrc su giao hang, ngkred ban phai
thOng bao cho ngued mua hoac bat cu dai dien nao do nguoi mua chi dinh rang
hang hod Et san sang de giam dinh. Ngkred ban phai cho phep tieP can hang hod cho
muc dich giam dinh tai tiled diem hop 17 &roc thoa thuan bOd cac ben
(Ghi chkl: cac yeu cau hai quan ve nhap khau vao Indonesia va Philippines dOi
hOi phai c6 giam dinh cua SGS trudc khi gui hang to ntrecc ngued ban. Dieu khoan
sau day dung cho cac hop &rig xuat khau sang cac nudc nay)
(1)
358
(3)
(4)
(5)
S6 ngay
1. Giao hang som la kh6ng diroc phep theo Hop dong nay
(2) la duqc phep, tuy nhien thanh man se
2. Giao hang sem truck
khong duct tien hanh au& so \Teri ngay da thoa thuan trong Hop dong nay
(2) la duqc phep, trong truung hop nay, thanh
3. Giao hang Om triroc
toan se loc tien hanh nhu truOng hop ngay thuc six giao hang la ngay nhu da thoa
thuan trong Hop dOng nay
8.2. Giao hang titng phiin
(Hai dieu khoan phu sau day la c6 the thay the cho nhau, c6 the 136 dieu khoan
khOng can thiet)
1. Giao hang tang phan la khO.ng &roc phep theo Hop dong nay
2. Giao hang tang phan la duqc phep theo Hop dong nay, theo su thoa thuan
cUa ca hai ben, tuy nhien bat cd chi phi nao Oat sinh cua giao hang tang phan se do
(3 ' chiu
8.3. Giao hang cham
Troir truing hop giao hang cham do cac nguyen nhan ngoai nguyen nhan bat
kha khong nhu duoc neu trong dieu khoan 17 sau day, ngirCri ban phai thanh toan
(4' % tri
thiet hai qui ra tien va khong phai la tien phat, met so tier' bang
(4) % khoan
gia so hang chu'a giao cho moi ngay giao cham, tai da bang
tien c6 the &pc thanh toan theo dieu 9 dudi day. Thanh toan thiet hai qui ra tien
phai duoc lam ma khong can ngueri mua cung cap cac bang chang ve bat kS/ t6n
that, thiet hai hoac thirong ton nao
(1)TOn nutic
(2)S6 ngay
359
(Hai dieu khoan phu sau day la c thd thay thd cho nhau, co the be diet' khoan
khOng can thidt)
1. Viec thanh toan thiet hai qui ra tien phai thoa man day dit va hoan toan bat
ctr khidu nai nao cua ngtroi mua Mit viii ngugi ban, phat sinh tir hoac co lien quan
ddn giao hang cham cita bat ky hang hoa nao. Dac biet, ngubi ban se khOng phai
chiu trach nhiem phap 15, d6i viii bat ky ton that gian tiep hoac ton that hau qua ilk),
nhir &roc neu trong muc 2.7 trong Hop ding mau, phat sinh tir hoac c6 lien quan
den giao hang cham cita bat ky hang hod nao
2. Viec thanh toan thiet hai qui ra tier' cua ngued ban se kh6ng loci bO viec
ngu6i mua tim kidm den bit thiet hai tir ngugi ban cho bat ky ton thgt, hu hOng hoac
thiet hai tir ngugi ban cho ba ky ton that, hu hong hoac thiet hai nao phat sinh tir
hoac c6 lien quan ddn giao hang cham cita bat ky hang hoa nao. Dac biet, ngtroi
mua se c6 quy6n doi boi thugng tir ngu6i ban d6i viii bat ky ton that hoac thiet hai
titkrc tiep hoac gian tiep nao, bao gom nhung khong gigi han ii ton that hai nhuan,
thiet hai sir dung hoac ton that hop ding, phat sinh tir hoac c6 lien quan cldn giao
hang cham dm bat ky hang hod nao. Tuy nhien, cac thanh toan duoc lam nhu thanh
toan thiet hai qui ra tier' se dugc bit trir vao bat ky den bit thiet hai ma ngtrai ban
phai thvc hien d6i viii viec giao hang cham cita bat ky hang hoa nao
8.4. Chdm dial hop (tong do giao hang ch4m
Trong truing hop ngugi ban cc') trach nhiem thanh toan s6 tien t6i da cho cac
thiet hai qui ra tien nhu qui dinh trong muc 8.3 cita hop ding mau, khi do viec giao
hang cham se duoc coi nhu vi pham hop (long va nguOi mua, sau khi th6ng bao cho
ngugi ban biet, co thd cham dirt Hop ding va/hoac tim kidm bat ky bien phap khac
phuc nao
9. Gia
Gia cua hang hoa se &roc giao theo Hop MI-1g nay IA
(I)
(2)
Thanh toan se &roc lam bang tin dung thu co xdc nhan, khOng hu5, ngang.
(3)
Ngtrgi mua se m& tin dung thu vao hoac tarot
viii cac dieu kien da thoa thuarr boi hai ben va duoc dua vao phu luc cila Hop
Loai fief) vg s6 tien
(2)S6 tien va logi tien viec bgng chi?
(3)Ngay ma tin dung
( I)
360
(I)
Hop dung nay se kh6ng c6 hieu luc theo diet' 16 dugi day, cho den khi
ngugi ban nhan dugc thong bao rang tin dung thu da dugc mo vad ten ngued hugng
lgi IA ngugi ban vi ngtrgi ban chic chin rang cac dieu kien dia tin dung thu la tuan
thu dung nhung gi hai ben di thoa thuan. Bat kS/ su khac biet nao gala cac dieu kien
di" thoa thuan bed cac ben vOi tin dung thu cid mg se phai dugc ngugi ban th6ng bao
ngay lip tut cho ngued mua
Neu ngugi mua kh6ng th6ng bao cho ngued ban ve bit kS, sty khac biet Liao
trong vOng (I) sau khi hang tgi, hang hod se dugc coi la phi'
hop vgi Hop dung khi ddn
11.3. Cac quyen cita ngnai mua trong twang hap c6 khac biet vi sr). Wong
Neu c6 khac biet clang ke ve so lugng va ridu dieu nay dugc th6ng bao tgi
ngugi ban kip tiled, ngugi mua tuST y cna minh va theo muc 8.2 tren day c6 the lam
mat trong cac diet' sau:
a) Chap nhan phan hang da giao va yeu cau ngugi ban giao phan hang con lai.
Hoac
b) Chip nhan phin hang da giao va huy 1)6 phin hang con lai dm hop dung
nhung phai thOng bao kip thgi cho ngueii ban
Neu co bit kj/ khac biet clang kd ve so lugng hang hod nao nhu
va neU khac biet do da dugc thOng bao
(2)
kip theci cho ngugi ban, ngured mua c the tuST
a) Chip nhan mgt trong cac giai phap mO to tren day trong dieu khoan nay,
hoac
(1)S6 ngay
(2)Mo to khac biOt cc ban
361
b) Tir ch6i phan hang hod da giao va yeu cau ngubi ben ban hohn tra toan bo s6
tien da thanh toan cung nth" cac chi phi lien quan den thug hai quan, nhan hang,
thong quan, bao him hoac ltru kho hang
11.4. Ccic quyin caa ngtroi mua trong tritertig hop c6 khcic biet ye chat litong.
(Dieu nay c6 the' khong can thief c6 giam dish cfia SGS fru& khi gui hang).
C_ac khac biet ve chat luting se dugc xem nhu la cac khuy& tat va se lam phat
sinh cac khieh nai theo dieu khoan tnich nhiem phap ly ye khuy& tat trong Hop
clang nay, dieu 12 dueri day
Tuy nhien, khac biet co. ban ve chat luting se cho phep ngubi mua quyen tit
ch6i toan 1)0 hang hod hoac mot phan va yeu cau ngubi ban hoac tra lai s6 tien da'
thanh toan cho phan hang hod khOng chap nhan ding nhu cac chi phi lien quan den
thn6 hai quan, nhan hang, th6ng quan, bao hiem hoac luu kho hang cila phan hang
hod khong diroc chap nhan
12. Trach nhiem phap ly ye khuyet tat
12.1. Trcich nhiem phap ly ctia nguai ban ve khuyet tat ctia hang hod
Ngubi ban dam bao rang cac hang hod dirgc cung cap theo hop clang nay tai
ngay giao hang se:
a) Khong c6 khuy& tat ve vat lieu,
b) KhOng c6 khuy& tat do nhan cOng
c) KhOng c6 khuyet tat tiern an trong thi& k6, bao gam nhung khOng gied han &
viec lua chon vat lieu, va se phii hop cho muc dich sir dung thOng thueng cila hang hod
Bat ky khuy& tat nao co thd chang minh duot trong bat ky hang hod nao xuat
hien trong th&i hieu trach nhiem phap ly ve khuy6t tat, ngubi mua se thong bdo
ngay lap tuc cho ngirbi ban. Ngubi ban, khOng cham tre, se bang rUi ro va chi phi
cUa minh, thy y sira chita hoac thay the hang hod do hoac lam cho het khuyet tat
Trach nhiem phdp ly cua ngtrbi ban ve khuy& tat dm hang hod phu thuOc vao
viec ngirbi mua c6 tan trong triet de tat di cac thU tuc va chi don ap dung cho
(I)
dm hang hod va r6 rang ngoai tar cac hu hong do hao mon binh thubng hoac
sir dung sai sau khi giao hang
12.2. Thai hieu phcip ly ire khuyet tat
(1)
Cac dieu kian sir dung nhu hru kho, gp dat, sir dung hoac van hanh..
362
Nguai ban se chiu trach nhiem phap ly ve khuy6t tat xuat hien trong thai gian
(2)
(') ngay, tinh tir ngay
Trong truing hop khuyet tat xuat hien sau khi het thai han nay, nguai mua se
khOng c6 quyen khi6u nai nguai ban ve khuyet tat bat kS/ nao
Thai hieu trach nhiem phap 13i ye khuyet tat se &roc keo dai them bAng thai
han ma nguai mua khOng the sfr dung duac hang hod do khuyet tat. Tuy nhien, n6u
hang hoa mai duac chuye'n d6n dd thay th6 hang hod c6 khuy6t tat, thi thai hieu
trach nhiem phap 13i ve khuy6t tat se khOng duac bat dau lai vai hang hod thay the
12.3. Gi6i han trach nhiem phdp ly ye khuyet tat cad hang hod
(Hai dieu khoan sau day la thay the cho nhau)
1. Nghia vu sna chna va thay the hoac bang cach khac lam hang hod h6t khuy6t
tat chi la trach nhiem cna nguai ban trong twang hop giao hang hod c6 khuy6t tat.
Dac biet, nguai mua khOng c6 quyen dei boi thuang tir nguai ban cho bat k37 thiet
hai hoac ton that gian tiep nao nhu net' trong muc 2.7 tren day, phat sinh tir hoac c6
lien quan den giao cac hang hod c6 khuyet tat
2. Nguai ban se den bit va tranh cho nguai mua khoi bat 14 thiet hai hoac t6n
that nao phat sinh cho du la true tiep hoac gian tiep do hau qua ciia hang hoa hong
hoac c6 16i, duac giao bei nguai ban
Trong twang hop khuy6t tat xuat hien sau khi ket thdc thai han nay, nguai ban
se khOng c6 trach nhiem phap ly dai vii nguai mua, va dac biet khOng co nghia vu
tra lai lien hoac bat kS/ phan tien nao da thanh town
(1)
S6 ngay
Ngay b6t dau cUa thai hiOu trach nhiem phap ly ve hu hong
(3)BOn se Oaf den bb (nguti ban hoac ngudi mua)
(4)Ben se nh'an den bit (ngtrai ban ho0c ngt.rdi mua)
363
2. Trong truing hop c bat 14 hanh Ong phap ly hoac kien cao nao b6i ben
thd ba ve bgt ky thiet hai, ton thgt hoac hu hong nao gay ra cho ben thti ba bai
khuySt tat cila hang hod duqc giao theo Hop &Ong nay, ben bi kien se phai chiu toan
1)0 cac chi phi thiet hai phat sinh tir vu kien do
14. Thu6
Tgt Ca cac thuS thu nhap, thuS tri gia gia tang, thuS hai quan, thus hanh nghe
hoac cac chi phi khac dugc qui Binh chinh phi'', co quan chinh phu hoac cac
nha civic trach Wang throng se hoan man do ben thuOc d6i arcing thu thuS cua cac
ca quan tren chiu
15. Giao quyen va uy quyen thtrc hien nghia vu
Giao quyen Ira Uy quyen thkrc hien nghia vu
Cac quyen lo'i theo hop (long nay khong the clugc giao hoac cac nghia vu cua
Hop (long khOng the cluqc uY quyen bOi bgt dr ben nao ma kh6ng CO sty Ming Y
bang van ban dm ben kia
Skr giao quyen Ira ttYr nhiem giao trqc
Cac quyen theo Hop Ming nay khong the cluot giao hoac cac giao trac khong
the duqc uy quyen bOi mot ben ma khong c6 sty ding yr bang van ban dm ben kia
16. LEO luc cua Hap d6ng
Hqp ding nay se trO thanh c6 hieu 1krc sau khi cluqc hai ben ky va sau khi :
a) NgtrOi ban nhan duqc thOng bao cua ngan hang dia minh ve viec thu tin
dung da duqc mar phil hop vii cac diet' kien cua dieu 10 tren day;
b)
(1)
c. Co su cho phep, gigy phep, su chuan y ch.rqc cap bad bgt kyr ben thtk ba nao
hoac cac tai lieu khac duqc yeu cau de thkrc hien dung nghia vu cua m6i ben theo
Hop ding nay
Nell Hop (long kh6ng the tro thanh c6 hieu lkrc trong vOng
(1)Lift ke cac dieu kiOn phai thuc hiOn trutc khi Hop d6ng tr& thanh co hieu /kit
(2)S6 ngay
364
(2) ngay
sau khi c6 chit 14 dm ca hai ben, met ben c thd chain dirt hop &Mg sau khi thOng
bao cho ben kia
17. Bit khi kiting
Neu met trong hai ben bi ngan can, hoac bi cham trd trong viec thuc hien bit
ky nhiem vu nao cua Hop Ming nay b&i cac sty kien nam ngoai tam kidm soat hop
ly cua minh, chi su kien nay se duqc coi la bit kha khang, va ben nay se khOng
dugc coi la c6 loi va khOng phai chiu bit dr tranh nhiem nao vai ben kia theo Hop
dong nay
(Plan sau day chi vi du, can sita doi cho phi) hop)
Cac su kien bit kha khang bao gdm, nhung kh6ng giai han chi& tranh (cho
du co tuyen b6 hay khOng), bao Ong, khai nghia, cac hanh Ong tdy chay, hoac
tuong tit, dinh cling, hoac tinh hinh quay r6i cua chInh phil; cham trd do viec hanh
clOng hoac kh6ng hanh Ong cua chinh phu, hoac 1)&14 hanh Ong dm bit ky Ong
ty giarn dinh nao; chay, nd hoac cac tai nan khOng tranh khoi khac; lit lut, bao,
clOng dat hoac cac hoan canh to nhien khOng binh thuong khac
( Phdn sau day ye cac sit kien khong phdi Id bat khd khang va Id tuji
Cac su kien bit kha khang khOng bao gdm sr kien sau:
(I)
1\16u met trong hai ben bi ngan can tir hoac chant tit trong viec thuc hien bit ky
nhiem vu nao oh Hop &Mg nay, thi ben do phai ngay lap tdc thong bao cho ben
kia ye su kien, nghia Vu se bi anh huding, va thqi han du anti ma su kien keo dai
Ne'u bit 14 su kien bit kha khang nao ngan can hoac lam cham tre viec thuc
(2) ngay, mot trong hai
hien bit 14 nghia vu nao oh Hop d6ng nay lion
ben co thd cham dirt Hop &Ong sau khi thong bao cho ben kia
Neu mot ben bi ngan tr .& bi cham trd trong viec thuc hien bit ky nghia vu nao
theo Hop &Mg nay bai bit ky su kien nao ma kitting thd du doan throe hoac c thd
du doan truac nhung khOng thd tranh duqc, thi su kien nay duqc coi la bit kha
khang, va ben do se kh6ng bi coi la c6 lOi va se khOng co giai phap nao du quy dinh
theo Hop dong hay bang cach nao do clanh cho ben kia
Danh sach cac str kiOn cluvc coi la "khOng bit kha khang"
(2)
S6 ngay
365
(1)
S6 ngay
366
Ngay hieu luc caa thOng bao se IA ngay nhan dugc ban Fax. Tuy nhien, trong
truing hop c6 tranh chap ve viec nhan ban Fax, ngay hieu luc se IA ngay nhan dugc
th6ng bao bang thu dam bao hoac 7 ngay sau khi gin thu dam bao, tuST theo su kien
nao xay ra som hon
Du cho c6 qui dinh nhu tren, moi thOng bao dugc chuyen va dugc nhan qua
phugng tien van ban nhu dien tin, telex, thu tir, hoac dugng buu dien bInh thugng se
dirgc coi IA thOng bao c6 hieu luc theo Hop dor -1g nay
Cac thOng bao se phai dugc gui tgi cac dia chi va s6 Fax nhu sau:
Ngtriti ban
Dia chi
Fax
NgtAri mua
Dia chi
Fax
Bat kji su thay d6i nao cira so Fax, hay dia chi se phai dugc thOng bao theo
Hop (long nay
23. Giai guy& tranh chap
Tat ca cac tranh chap phat sinh fir Hgp dong nay cugi cang se phai &pc giai
quy6t theo cac nguyen tic ve hoa giai va trong tai cua Ph6ng Thuong mai qua trinh,
bed (I) trong tai dugc chi dinh theo cac nguyen tic tren day
Dia diem trong tai se la
Anh.
(Ba diet' khoan phu sau day la thay the cho nhau)
a) Trong truing hop sir dung trong tai, m6i ben chiu cite chi phi caa mInh
b) Trong truing hop sir dung trong tai, trong tai se phan quyet phan chi phi ma
m6i ben phai chiu
c) Trong truing hop sir dung trong tai, ben thua se phai chiu toan b0 cac chi
phi trong tai
Cac ben thoa thuan rang bat kS/ phan guy& nao theo qui dinh caa dieu khoan
nay se la chinh thilc va rang buOc ca hai ben
367
Chtic vu:
Chtic vu:
Ngay:
Ngay:
Dia diem:
Dia didm:
(Cdc 11401 cfia ccic tutor khong doi hdi phdi -vac nheitz chi? /4)
368
3. MODEL CONTRACT FOR THE SALE OF GOODS AND THE CIVIL CODE
OF VIETNAM
The arc three main types of contract under CCVN (see appendix 2 for the
English and Vietnamese versions).
1. Applicable law
This contract, and all questions relating to its formation, validity,
interpretation or performance shall be governed by the law of
[Note: The subclause below is optional]
This contract shall not include, incorporate or be subject to the
provisions of the "United Nations Convention on Contracts for the
International Sale of Goods.
Remark
The Model Contract assumes freedom of contract in choosing an
applicable law. It also allows for exclusion of the Vienna Sales
Convention.
372
The total agreement between the parties is their written contract (the
fish) plus the applicable private law (the water)
374
Remark:
The buyer's right to annulment for failure to produce a user's guide
would not normally be acceptable to a seller.
3.9. Transfer of Risk, Transfer of Title.
Article 432: Moment of Transfer of the Ownership
1. The ownership over purchased [items] shall pass to the purchaser
from the moment when the purchaser receives the object, except for
cases where parties agree or law stipulates otherwise.
Article 43: Moment of Passage of Risk.
1. The seller party shall bear risks regard of the sold assets until the
moment when assets are delivered to the purchaser, and the latter
shall bear risks from the moment of receiving assets if parties have
not agreed otherwise.
Remark:
The concepts of "delivery" and "receipt" will require some definition
by the courts. Under an Incoterm contract, both terms could mean
delivery.
3.10. Transfer of Risk and Title under the Model Contract.
5. Delivery
5.1. Date, Place and Terms of Delivery
The scheduled date of
Delivery of the Goods shall be made
Risk and title to the Goods shall pass from
Delivery shall be
the SELLER to the BUYER on Delivery.
Remark:
Transfer of risk and title together is often the simplest arrangement.
3.11. Place of Delivery under CCVN and under the Model Contract.
Article 426: Place of Delivery of A: sets
Parties shall agree upon the place of delivery of assets. If there are no
375
5. Agreed place of delivery. Note: In FOB, FCR, CIF and CIP (etc)
contracts, this is the port/place of shipment.
Remark:
Place of Delivery should be stated. In C-term contracts it is the port of
shipment, not the port of arrival.
3.12. Time of Delivery under CCVN and under the Model Contract.
Article 425: Time of performance of a Sale Contract
Remark:
It is essential to clarify the time of delivery. Late delivery has
important financial consequences. The warranty period usually
begins to run from delivery.
376
3.13. Force Majeure under CCVN and under the Model Contract.
damages and not as a penalty the sum of <FIGURE> and of the value of
the undelivered part per Day of late Delivery up to a maximum of
<FIGURE> and of the Price payable Clause 9 below. Payment of
liquidated damages shall be due without the BUYER having to furnish
proof of any loss, damage or injury.
[NOTE: The two subclauses below are alternatives.] Payment of
liquidated damages shall constitute full and complete satisfaction of any
claim of the BUYER against the SELLER arising from or in connection
with late Delivery of any Goods. In particular the SELLER shall not be
liable for any indirect or consequential loss or damage, as defined in
Clause 2.7 above, arising from or in connection with late Delivery of
any Goods. Payment of liquidated damages by the SELLER shall not
preclude the BUYER from seeking compensatory damages from the
SELLER for any loss, injury or damage arising from or in connection
with late Delivery of any Goods. In particular the BUYER shall be
entitled to compensation from the SELLER for any indirect or
consequential loss or damage, including but not limited to loss of profit,
loos of use or loss of contract, arising from or in connection with late
Delivery of any Goods. However, payments made as liquidated
damages shall be offset against any compensatory damages recovered
from the SELLER for the late Delivery of and Goods.
8.4. Termination for Delay
In the event that the SELLER becomes liable to pay the maximum sum
payable as liquidated damages under Clause 8.3 above, then the delay
shall be deemed breach of contract and the BUYER may, upon due
notice, terminate the Contract and/or seek any other remedy available to
him.
Remark:
In practice, few sellers will accept Alternative 2 which goes against
the principle of liquidated damages.
2. In cases the seller party delivers things in quantity less than the
quantity which has been agreed upon, the purchaser shall have
either of following rights.
a. To terminate the contract and request compensation for damages.
b. To receive the quantity which was delivered and request
compensation for damages.
c. To receive what has been delivered and extend a period time for
the seller to deliver the rest.
Article 429: Liability due to Delivery of Incompleted Things.
1. In cases where things which have been delivered are not completed
and thus causing the usefulness to be failed, the purchaser shall
have either of following rights:
a. To cancel the contract and request compensation for damages:
b. To receive what has been delivered and ask the seller party to
deliver components or parts which have not been delivered and
to request compensations for damages and to suspend the
payment the situation becomes complete.
Article 430: Liability for delivery of things of the Wrong category.
In case where the things have been delivered in improper affurtiment
[assortment], the purchaser shall have either of following rights
1. To terminate the contract and request compensation for damages.
2. To receive what has been delivered any pay for it at the price as
agreed upon by parties.
3. To request the seller to deliver thing in proper assortment and to
compensate for sustained damages.
Remark:
The buyer's right to terminate is very hard on the seller. These clauses
are (probably) disposive, however. Some wording on fundamental
breach is necessary in the contract.
3.17. Defective Delivery under the Model Contract
11.3. Buyer's rights in the event of Discrepancy in quantity
If a material discrepancy in quantity exists and is duty notified to the
380
SELLER, the BUYER at his discretion and subject to clause 8.2 above
may either.
a. Accept the delivered portion of the Goods and require the SELLER
to deliver the remaining portions forthwith; or
b. Accept the delivered portion of the Goods and terminate the
remaining portion of the Contract upon the due notice given to the
SELLER.
If any material discrepancy in quantity exists such that <STATEMENT
OF FUNDAMENTAL DISCREPANCY> and if such discrepancy is
duly notified to the SELLER, the BUYER may at his discretion.
a. Adopt either of the remedies prescribed in this clause above; or
b. Reject the delivered portion of the Goods and recover from the
SELLER all payments made to the SELLER as well as all costs,
expenses and customs duties incurred by the BUYER in association
with the shipment, movement through customs, insurance or storage
of the Goods.
11.4. Buyer's rights in the event of Discrepancy in quality
Discrepancies in quality shall be considered as defects and shall give
rise to claims under the Defects' Liability provision of this Contract in
Clause 12 below.
However, a fundamental discrepancy in quality shall give the BUYER
the right to refuse Delivery of the Goods in whole or in part and to
recover from the SELLER all payments made for the unaccepted
portion of the Goods as well as all costs, expenses and customs duties
incurred by the BUYER in association with the shipment, movement
through customs, insurance or storage of the unaccepted portion the
Goods. Further a refusal to accept delivery in whole shall be considered
termination under Clause 18 of this Contract and refusal to accept
delivery in part shall be considered termination of that part of the
Contract affected by such refusal.
Remark:
The wording on fundamental breach is a necessary protection for the
seller. It is essential for the buyer to be fair to the seller or he/she will
simply refuse to do business.
381
382
383
from the SELLER for any indirect loss or damage as defined in Clause
2.7 above, arising from or in connection with Delivery of defective
Goods. The SELLER shall indemnify and hold harmless the BUYER
against any loss or damage however arising whether direct or indirect
which shall be suffered by the BUYER as the result of defective or
faulty Goods delivery by the SELLER.
3.20. Payment under CCVN and the Model Contract
Article 295: Fulfilling the obligation of paying money.
1. The obligation to pay money shall be fulfilled in full, according to
the timelimit, at the appointed place and in the agreed upon
procedures.
2. The money that must be paid shall be the Vietnamese Dong, except
in cases where the law stipulates otherwise.
Article 424: Price and Modes of Payment
3. Modes of payments shall be agreed upon by parties or stipulated by
law.
Remark:
The requirement to pay all monies in Dong needs interpretation
384
APPENDIX
pm/ Luc
1. CONG IfOC VIEN 1980
UNITED NATIONS CONVENTION
ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS
CONG LIOC
CUA LIEN HIEP QU6C VE
HOP BONG MUA BAN QUOC TE
PART I
PHAN MOT
Chapter I
Cholng I
SPHERE OF APPLICATION
PHAM VI AP DUNG
385
Article 1
Digu 1
apply to sales:
(b) By auction.
f) Of electricity.
f) &On nang
386
Article 3
Di6t.1 3
Article 4
Di61.1 4
Chapter II
Chttong II
GENERAL PROVISIONS
Article 7
(1)
In
the
interpretation
of this
2. Cac van
lien quan den d6i Wong
di& chinh cua Cong tkic nay ma kh6ng
quy dinh thing trong Cong iroc thi se
duoc gigi guy& chi& theo cac nguyen
tic chung ma tit d C6ng tioc chtoc hinh
thanh hogc ngu kh6ng c6 nguyen tic
nay, thi chi& theo lugt duOc dp dung
theo quy pham cOa to phap qu6c
Article 8
Digu 8
Article 9
Digu 9
388
Convention:
(a) If a party has more than one place of
business, the place of business is that
which has the closest relationship to the
contract and its performance, having
regard to the circumstances known to or
contemplated by the parties at any time
before or at the conclusion of the
contract;
witnesses.
Article 12 Any provision of article 11,
PART II
PHAN HAI
Article 14.
Digu 14.
lu'ong va gia
(2) A proposal other than one
addressed to one or more specific
persons is to be considered merely as
an invitation to make offers, unless the
contrary is clearly indicated by the
person making the proposal.
Article 15.
Digu 15.
Article 16.
Digu 16.
390
Article 18.
Di6t.i 18.
tit
2. Chap nhen chao hang c hieu
khi ngudi chao hang nhen du'oc chap
nhen. Chap nhen chao hang khong phat
sinh hieu Itic neu su' chap nhen ay khOng
du'oc gal tdi ngudi chao hang trong thdi
han ma ngudi nay de quy dinh trong
chao hang hoac neu thdi han do khOng
du'oc quy dinh nhu'vey, thi trong mot thdi
han hop ly, xet theo cac tinh tigt cue su'
giao dich, trong do c xet den t6c d6 cua
cac phu'dng tien lien lac do ngudi chao
hang sit dung. MOt chao hang bang
mieng phei du'oc chap nhen ngay trill phi
cac tinh tigt bgt bu6c ngu'oc Iai.
Article 19.
Digu 19.
Article 20.
Di6u 20.
392
Article 21
Di6u 21.
393
PART Ill
PHAN BA
SALE OF GOODS
Chapter 1
Chuang 1
GENERAL PROVISIONS
Article 25.
Digu 25.
394
Article 29.
Digu 29.
Chapter II
Chucmg II
395
Article 32.
Didu 32.
396
goods:
(a) If a date is fixed by or determinable
from the contract on that date;
Article 35.
Digu 35.
Article 36.
Dieu 36.
398
Article 38.
Digu 38.
Article 39.
Di6u 39.
(1) The buyer loses the right to rely on a 1. Ngu'di mua bi met quyan khigu nai vg
399
400
Article 43.
Digu 43.
the
Notwithstanding
44.
Article
provisions of paragraph (1) of article 39
and paragraph (1) of article 43, the
buyer may reduce the page in
accordance with article 50 or claim
damages, except to loss of profit, if he
has a reasonable excuse for his failure
to give the required notice.
401
Section III. Remedies for breach of Myc lll. Cac bien phap bac, ho phap ly
contract by the seller trong truong hcip ngudi ban vi pham
hIp d6ng
Article 45.
Di6u 45.
(1) If the seller fails to perform any of his 1. Neu ngudi ban da kh6ng thuc hien
obligations under the contract or this mot nghia vu nao do cUa ho phat sinh tit
Convention, the buyer may:
hop d6ng mua ban hay C6ng u'oc nay,
thi ngudi mua c6 can ca
(a) Exercise the rights provided in a) Thuc hien nhimg quy8n han cue
articles 46 to 52:
minh theo quy dinh tai cac dieu tit 46
clgn 52;
(b) Claim damages as provided in b) Doi b6i thudng thiet hai nhu de quy
articles 74 to 77.
dinh tai cac dieu tit 74 den 77.
(2) The buyer is not deprived of any 2. Ngu'di mua khong met quyen doi boi
right he may have to claim damages by thuong thiet hai khi ho de sii dung
exercising his right to other remedies. quyen dung mot bien phap bao h6 phap
ly khac.
(3) No period of grace may be granted 3. Kh6ng mot thoi han an han nao CO
to the seller by a court or arbitral the duoc Toa an hay Trong tai ban cho
tribunal when the buyer resorts to a ngudi ban khi ngudi mua sit dung den
remedy for breach of contract. bat kjt hen phap bao h6 phap ly nao
trong twang hop ngudi ban vi pham hop
Article 46.
Di6u 46.
(1) The buyer may require performance 1. Ngudi mua c6 the yeu ceu ngudi ban
by the seller of this obligations unless phai thut hien nghia vu, WI phi ngudi
the buyer has resorted to a remedy mua so' dung mot bien phap bao h6
which
is
inconsistent
with
this phap ly kh6ng hop vdi y8u ca'u d6.
requirement.
(2) If the goods do not conform with the 2. Neu hang h6a khong phi., hop vdi hop
contract, the buyer may require delivery dong thi ngudi mua c6 the dal ngudi ban
of substitute goods only if the lack of phai giao hang thay the net.' su khong
conformity constitutes a fundamental ph6 hop do tao thanh mot skt vi pham cc
breach of contract and a request for ban hop citing va yeu cau ye viec thay
substitute good is made either in the hang phai duoc det ra Gang mot lac
conjunction with notice given under vdi viec th6ng bao nhEtng dpi kiOn chi6u
article 39 or within a reasonable time theo Dieu 39 hoec trong mot thdi han
thereafter.
hop ly sau do.
(3) If the goods do not conform with the 3. Neu hang hoa khong ph0 hop vdi hop
contract, the buyer may require the d6ng, ngudi mua c6 quyen doi hoi ngudi
seller to remedy the lack of conformity ban phai loci trii su kh6ng phi.] hop ey,
402
Article 47.
Digu 47.
Article 48.
Dieu 48.
403
Article 49.
Di6ta 49.
404
Article 51.
Digu 51.
Article 52.
Digu 52.
Chapter III
Chuang III
406
xac
Article 57.
Di6ti 57.
Article 58.
Di'du 58.
407
Article 59.
Digu 59.
Myc
Cac bien phap bac) hd phap
lk trong trudng hdp ngudi mua vi
pham hdp d6ng
Article 61.
El& 61.
408
Article 65.
Di61.1 65.
Chapter IV
Chu*Png IV
PASSING OF RISK
CHUYEN ROI RO
Article 67.
Digu 67.
410
Article 69.
Dieu 69.
Chapter V
Chuang V
Article 71.
Digu 71.
412
Article 72.
Digu 72.
Article 73.
Di6u 73.
Article 76.
Di6u 76.
414
Article 79.
Digu 79.
416
Article 81.
Digu 81.
Article 82.
Digu 82.
417
Article 84.
Digu 84.
418
Article 86.
Dieu 86.
Article 87.
Digu 87.
Article 88.
Digu 88.
419
PART 4
FINAL PROVISIONS
Article 91.
Digu 91.
ratification,
of
Instruments
(4)
acceptance, approval and accession
are to be deposited with the Secretary
General of the United Nations.
Article 92.
Digu 92.
Article 94.
Di6u 94.
(3) If a State which is the object of a 3. Khi mot qu6c gia lien quan den mot
422
preceding
the
under
declaration
paragraph subsequently becomes a
Contracting State, the declaration made
will, as from the date on which the
Convention enters into force in respect of
the new Contracting State, have the effect
of a declaration made under paragraph
(1), provided that the new Contracting
State joins in such declaration or makes a
reciprocal unilateral declaration.
Article 95.
Digu 95.
Article 96.
Digu 96.
Article 97.
Digu 97.
effect
takes
declaration
A
(3)
simultaneously with the entry into force
Article 98.
Digu 98.
Article 99.
Di61.1 99.
424
425
Article 100.
Digu 100.
Article 101.
Dieu 101.
426
427
428
Article 425.
mua ban
property
The property shall agree on the place
for handing over the property; if there is
no agreement, the provision in Article
289 of this Code shall apply.
property.
The property shall be handed over
according to the mode agreed upon by
the parties subject to the nature and
object of the contract; if there is no
agreement on the mode of handing over
430
431
432
hitu
risks
1. The seller bear the risks to the
property for purchase and sale until the
property has been handed over to the
buyer, while the buyer shall bear risks to
such property from the time of receiving
it, if not otherwise agreed.
hau.
Trong tru'ong hop khong co thoa thuen
va phap luet khong qui dinh vg chi phi
van chuygn va chi phi lien quan den
viec chuygn quygn so hitu, thi ben ban
phai chiu chi phi vg van chuygn den dia
diem thu'c hien nghia vu va chi phi lien
quan den viec chuygn quygn so hCtu.
433
434
435
Article 442.
property rights.
436
bao hanh.
service.
vy.
hirer.
vu.
437
438
439
for service.
If after the expiry of the service period
the task has not yet been accomplished
and the service provider continues to
perform the task while the service hirer
known but does not object, the
performance of the contract for service
shall automatically continue in
accordance with the agree contents
until the task is accomplished.
A contract for processing is an agreement Hop d6ng gia car -1g la su thoe thuen
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Objects or processing
of the
Article 551.
contracts.
552.
Article
processee.
Obligations
the
suspend
unilaterally
To
2.
performation of the contract and
demand compensation for any damage
if the processor breaches the contract;
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hoackngti6,phacur
nhiem vg s5n pham tao ra;
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Article 561.
Disposal of materials
and/or raw materials.
raw materials to the processee, unless Khi hop ciong gia cong cham Mt, ben
otherwise agreed.
nhan gia cong phai hoan tr-6 nguyen vat
lieu con lai cho ben dat gia cong, fru'
truting hop c6 thoa thuan khac.
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Reader's note
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Trinh bay
Designed by
HOASACH JSC
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