Date: Dec.21, 2007.
This contract is made between —-., LTD.(China)( hereinafter referred to as the Seller), on behalf of the CEO Jin Shengbo, as one party, and —-(Cyprus) (hereinafter referred to as the Buyer)on behalf of the director George Kyrou, as another party, on the basis of terms and conditions hereunder stated.
1.1. The Seller shall manufacture and deliver all equipments with the Buyer’s technical requirements within the period specified in this Contract, and the Buyer shall receive and pay for the equipments of the stone crushing line (hereinafter referred to as the Goods), which will provide the whole technical possibility for granular stone product manufacture. The Goods shall be in compliance with stipulation in assortment, completeness, quantity, volume, unit of measure, quality, unit price, price term, total amount in SPECIFICATION No.1 to this Contract as integral part.
1.2. The Seller shall provide the Buyer necessary technical documents, instructions and drawings to the Goods for the Buyer’s local exploitation with indication of area, concrete foundation, communications for the Goods’ installation. The Seller shall provide these necessary documents to the Buyer within 10 (ten) calendar days after receiving 30% (thirty percent) advance payment.
1.3. The Seller shall provide necessary assistance to the Buyer in supervising installation, assembling, starting-up and commissioning works of the delivered Goods and also provide training course for the Buyer’s staff according to the terms specified in this Contract.
2. TERMS OF DELIVERY
2.1 The Seller shall finish producing the Goods within 60 (sixty) days from the day of the Seller’s receiving 30% (thirty percent) prepayment. In case of falling across Chinese New Year holidays during producing period, additional 3(three) weeks of producing time will be accepted by the Buyers.
2.2 Not less than 10 (ten) calendar days before the Goods is produced, the Seller shall inform the Buyer in written form by means of facsimile or E-mail about the readiness of the Goods in order that the Buyer’s representatives could make a visit for preliminary examination of the Goods in the Seller’s warehouse (by confirming the coherence with drawings, the Buyer’s technical requirements, China State Standards, analysis, etc.)
2.3. On the basis of the Buyer’s approval of the Goods presented in the Seller’s warehouse, the Seller shall load the Goods within 10 (ten) working days at loading port in China.
2.4. Three vibrating screens from the Goods will be loaded separately on a bulk vessel (but in one consignment) due to impossibility of placing them into containers. The rested equipments from the Goods shall be loaded on one vessel (in one consignment) in containers. The Seller shall do all possible efforts to assure the loading time of the above mentioned two parts of Goods close each other, to avoid the Buyer’s repeated visit for confirmation. Earlier loading is allowed with written notification to the Buyer by means of facsimile or E-mail within 5 (five) days before shipment.
2.5. The Seller shall sufficiently inform the Buyer in written form by means of facsimile or E-mail within 5 (five) days before the planned date of Goods’ shipment, and also to send the Buyer any other notification (written instruction), which will be necessary for the Buyer to perform necessary measures for receiving the Goods inside the territory of Ukraine including the point of destination. In the notification shall include: shipment date, Bills of Lading number, vessel’s name, shipment port, number and date of the Contract, Goods’ name and volume, address, voyage route, ETA(Estimated Time to Arrive) in destination port (Odessa) and other Essential elements necessary for the Goods’ receiving.
2.6. At the request of the Buyer, the Seller shall provide all necessary assistance in acquiring of any printed documents or electronic messages, issued or used in the country of the Goods’ origin, which may be necessary for the Buyer in the process of importing the Goods or its transit through the third countries. The Seller shall provide the Buyer all the necessary information for arrangement of any additional insurance.
2.7 Delivery of the goods shall be on the basis of CIF (Cost +Insurance +Freight are paid till the port of Odessa, Ukraine) condition. When interpreting terms of delivery the applicable International rules of commercial terms interpretation INKOTERMS (edition 2000) shall be used.
2.8. The Goods shall be delivered by sea transport.
2.9. Port of destination: —- ,Ukraine.
2.10. The consigner of the Goods:
2.11. The Seller is obliged:
– to cover all related expenditures of the Goods until the moment of its delivery at destination port Odessa,, to pay freight including all the expenditures for the Goods’ loading at loading port and unloading at the destination port Odessa, which according to the Contract of carriage are assigned to the Seller, and to cover all the expenditures on insurance against risks of loss or the Goods’ damage during the transportation in favor of the Buyer.
– to cover all the expenditures related to the customs formalities concerning export, other duties, taxes and other dues, while exporting the Goods, and expenditures on its transit traffic through the third countries, in case when they are assigned to the Seller according to the Contract of carriage;
– to cover the expenditures on the Goods checks (check of the quality, dimensions, weight, quantity, etc.) necessary for the Goods’ delivery.
2.12. The date indicated on the original shipping documents with stamp issued by the destination port (Odessa) shall be considered as the actual date of the Goods’ delivery.
3. THE CONVEYANCE AND ACCEPTANCE OF THE GOODS
3.1. The place of the Goods’ acceptance shall be the port of —- (Ukraine).
3.2. The Seller shall timely provide the Buyer the usual shipping documents indicating the destination port and consignee under this Contract. All the expenses for the above shipping documents are at the Seller’s account. These documents shall be valid for the sold Goods with valid loading time, and enable the Buyer to receive the Goods from the carrier at the destination port.
3.3. The shipping documents shall indicate not only about the Goods’ delivery to the Buyer by the carrier, but also about the fact that the Goods are received in good condition, as far as the carrier can confirm this. Any note on the shipping documents, which would indicate that the Goods was not received in such condition, will make this documents “unclean” and, thus, unacceptable in accordance with UCP.
3.4 The conveyance of the Goods shall be confirmed in written form and signed by the Seller and the Buyer (hereinafter referred to as the Parties). The ownership and risk of unexpected destruction or the Goods’ damage shall be delivered from the Seller to the Buyer from the moment of the Goods’ conveyance to the latter.
3.5. The Goods’ acceptance shall be performed quantitatively in accordance with the Bills of Lading and shipping documents, and qualitatively – in the moment of the Goods’ commissioning and the issuance of commissioning report.
3.6. If during the Goods’ acceptance there will be a quantitative discrepancy with the Bills of Lading and shipping documents the Buyer shall suspend the Goods’ acceptance and call the Seller’s representative. In case of impossibility of the Seller’s representative’s visit, the Goods’ acceptance shall be continued with the Third Party’s representative.
3.7. The Seller has the right to send authorized representative(s) to participate the Goods’ acceptance.
3.8. In case there are no complaints or comments from the Buyer concerning the quantity and quality of the Goods during the installation, the Goods shall be considered compliance with the delivery documents and accepted by the Buyer.
3.9. The terms of the Goods’ acceptance, which are not regulated by the instructions above, shall be regulated by the rules set on the sea transport of Ukraine.
4. PRICE AND AMOUNT OF CONTRACT
4.1. The price of the Goods, which is the subject of purchase and sale, shall be stated in SPECIFICATION NO. 1 to this Contract and shall be stated in the US dollars. The price of the Goods as the payment currency of this Contract is a stable currency, which shall be fixed at the moment of this Contract conclusion, and will not be a subject of changing during the period of this Contract.
4.2. The Price term is as follow:
- CIF —- (Ukraine)
The explanation of the price term as per the applicable rules INKOTERMS (edition 2000) and their Annexes.
4.3. Total amount of the Contract: —- (——) US dollars. The total contract amount includes: Providing necessary technical documents, instructions and drawings to the Goods for the Buyer’s local exploitation.
As for expenses for necessary assistance to the Buyer in supervising installation, assembling, starting-up and commissioning works of the delivered Goods, training for the Buyer’s staff inside territory Ukraine as per Article 10.4.3. of this contract.
5. TERMS OF PAYMENT
5.1. The payments are performed between the Seller and the Buyer by means of bank telegraphic transfer to the bank requisites, specified in this Contract.
5.2. Currency of payment – US dollar.
5.3. Payments for the Goods will be performed by the Buyer as follows:
The first payment: 30%(thirty percent) of the total CIF Odessa amount shall be made within 5 (five)banking days after concluding of this Contract and receiving the Seller’s Proforma Invoice for advance payment, which is billed and sent to the Buyer by means of facsimile or E-mail to the requisites specified in this Contract. Afterwards the Seller sends its original to the Buyer by letter to the address specified in this Contract.
The second payment: 65%(sixty five percent) of the total CIF Odessa amount shall be made within 5 banking days after preliminary Goods’ examination by the Buyer’s representatives and receiving the Seller’s Proforma Invoice for advance payment, which is billed and sent to the Buyer by means of facsimile or E-mail to the requisites specified in this Contract. Afterwards the Seller sends its original to the Buyer by letter to the address specified in this Contract.
The third payment: 5%(five percent) of the total CIF Odessa amount shall be made within 5 banking days after the Buyer’s receiving the Seller’s scanned copy of original Bills of lading by email or after the Seller’s showing original copy of Bills of lading to the Buyer’s authorized representative(s) in China, certifying that the Goods has been loaded and the vessel has leaved from loading port in China. The Buyer can also confirm this fact through the carrier’s website. The Seller shall despatch the original Bills of lading (together with the other documents listed in Article 12.1 in this contract) to the Buyer by DHL express courier service within 5(five) working days after receiving the above said 5% payment.
5.4. The terms of payment can be changed in case the Parties sign additional agreement to this Contract, which will be integral part of this Contract.
5.5. All banking charges inside the Seller’s territory shall be at the Seller’s own account. All banking charges inside the Buyer’s territory shall be at the Buyer’s own account.
5.6. The Seller shall return the Buyer against his written claim all the means paid by the latter for the Goods, the delay of which exceeds 15 (fifteen) calendar days.
5.7. The date of means withdrawal from the Buyer’s account will be considered as the date of payment.
6. BANK REQUISITES OF THE PARTIES
6.1 The Seller’s bank requisites:
BENEFICIARY: —-., LTD
ADD OF COMPANY:—
ACCOUNT NO.: —
NAME OF BANK: —
6.2. The Buyer’s bank requisites:
ACCOUNT NO.: —
NAME OF BANK:—-
P.O. Box —
7. THE RESPONSOBILITY OF THE PARTIES
7.1. In case of the delivery delay or the loaded Goods is insufficient in quantity, the Seller shall pay the Buyer the penalty at the rate of 0,05%(zero point zero five percent) per delayed day from the cost of the delayed part of Goods, from the day of the payment till the fulfillment of the obligation violated, but not more than 100% from the cost of the ordered Goods, unless otherwise is created in the applicable legislation.
7.2. For the delay in payment of the Goods in accordance with the Article 5.3. of this Contract, the Buyer shall pay the Seller the penalty at the rate of 0,05% (zero point zero five percent) from the cost of the Goods delayed in delivery for each day of delay, including the day of the payment till the fulfillment of the obligation violated, but not more than 100% from the cost of the delivered and unpaid Goods, unless otherwise is created in the applicable legislation.
7.3. For the incomplete delivery due to the Seller’s fault, the Seller shall compensate the Buyer with next delivery or return the funds transferred.
7.4. All the expenditures, related to the Seller’s incomplete, incorrect or inaccurate issuance of the shipping documents, in consequence of which caused the demurrage of the cargo or the impossibility of the customs registration, shall be compensated by the Seller in full volume on the basis of the calculations presented and proved with valid documents.
7.5. The Party will be free from the responsibility for the non-fulfillment of his obligation under this Contract, if the reason exists for such non-fulfillment.
8. QUALITY AND COMPLETENESS OF THE GOODS
8.1. Qualitative characteristics of the Goods delivered according to this Contract shall conform with the certificates and technical conditions of the manufacturer.
8.2. The Seller shall follow the qualitative requirements of the Goods delivered in accordance with the international norms and with the requirements to the quality of the imported goods of the inner legislation of country jurisdiction of the Receiver: in accordance with UkrSEPRO (Ukrainian system of Quality Certification), State Standard of China(GB), State Quality Inspection, Consumers’ Rights Protection Committee. Otherwise the Goods, which does not correspond with these requirements, may be returned back to the Seller with the payment of the losses to the Buyer, in accordance with the Articles 5.3., 5.5. and Goods registration at the customs in accordance with this Contract.
8.3. Quality and completeness of the Goods shall correspond to the SPECIFICATION NO.1, which is an integral part of this Contract, and also to the reference, project and technical documents for the Goods and technical requirements of the Buyer.
8.4. Quality and completeness of the Goods delivered shall be provided with the quality certificates, conformance certificates, certificate of the manufacturer.
9. PACKING AND MARKING
9.1. The Goods delivered shall be packed in accordance with the applicable standards, technical conditions of the manufacturer and shall provide (on condition that it is properly handled) the undamaged state of the Goods during its transportation taking into consideration trans-shipment, duration and means of transportation, and, also, undamaged state of seals and preservation of the Goods from the atmospheric influence. In case of necessity, before packing the Goods a corresponding mounting of the Goods shall be performed.
9.2. Each package shall be marked in accordance with the manufacturer’s conditions.
9.3. The packing shall serve as an information carrier – advertisements and marking. Moreover, it shall provide convenience during warehousing and safety of the Goods considering a place and means of its warehousing, means of automation, transportation, loading and unloading, considering different types of transport facilities, routes of the Goods’ delivery, examinations at the customs, sale of the Goods.
9.4. The Goods shall be delivered in the packing designed for it in accordance with the applicable reference documentation with the corresponding seals during transportation by the sea transport in containers to the destination place in port of Odessa (Ukraine) with the further transportation by railway on the territory of Ukraine to the place of the Goods’ exploitation. In accordance with this Contract the Package is non-returnable. The price of the package and packing shall be included in the price of the Goods under this Contract.
9.5. In case the seals are damaged during transportation, the Buyer shall inform the Seller about the incident within 3 (three) days from the moment of the Goods’ registration at the customs
10. ENGINEERING SUPERVISION
10.1. The Seller shall provide the Buyer necessary technical documents, instructions and drawings to the Goods for the Buyer’s local exploitation with indication of area, concrete foundation, communications for the Goods’ mounting in order that the Buyer performs full extent preliminary construction works in complete correspondence with the technical documents provided by the Seller.
10.2. In case the Seller performs installation, assembling, starting-up and commissioning works of the delivered Goods, the Buyer shall provide the Seller all necessary means and mechanisms, materials and qualified working power during the work’s performance.
10.3. At the Buyer’s written request, the Seller shall send authorized representatives during the work’s performance, specified in Articles 1.3. and 10.2. of this Contract.
10.4. The Buyer’s obligations:
10.4.1. Not to allow performance of installation, assembling, starting-up and commissioning works of the delivered Goods without permission of the Seller;
10.4.2. Not to allow performance of installation, assembling, starting-up and commissioning works in defiance of the rules of the approved and duly certified project and technical documentation, construction norms, rules, standards and technical conditions; commissioning the equipment in defiance of the certain rules in accordance with this Contract.
10.4.3. The Buyer shall pay for all tickets (for going and returning flight) and accommodation (living and food) for technicians/translator and pay additional 35USD per day for each technician and translator. The Seller will provide not more than 20 days of such service. The Buyer shall make all the necessary preparation to assure the Seller’s technicians fulfill their tasks within 20 days. The Buyer shall guarantee the Seller’s technicians to live in a medium level local hotel and provide 3 meals per day for technicians and translator at the Buyer’s account. The Buyer shall pay 200 (two hundred) USD for each technician/translator of the Seller as international passports and visas fees. The Buyer shall pay for the air tickets (domestic and international) and international passports and visas fees in advance before the technicians’ departure from China. The service fees will be calculated from the date of departure from China to Ukraine and finishes when arrive in China.
10.5. The Seller’s obligations:
10.5.1. To provide all necessary documentation while delivering the Goods
10.5.2. To be present during starting-up and adjustment works and during commissioning of the Goods delivered.
10.5.3. As soon as the Goods has been commissioned to issue and sign the Commissioning of the Goods Act (production complex)
10.6. Performance of the engineering and field supervision is an obligatory condition for the Seller’s warranty to be fulfilled.
11.1. The Goods’ warranty service (of the production complex) is performed only under the condition that the equipment is used with the purpose it was manufactured for, and if this equipment was commissioned, used and maintained in accordance with the manufacturer’s original instruction and operating instruction.
11.2. The warranty covers the defects of the equipment, including low-quality materials or unqualified manufacture. The warranty period is 13(fourteen) months from the moment of discharging at destination port Odessa. The Seller shall replace defected parts free of charge under the conditions that the Buyer followed the rules and terms of this equipment exploitation. Wear and tear parts listed in SPECIFICATION NO. 1 shall not be included in warranty items.
11.3. The warranty covers the rectification of the defects by the qualified maintenance staff, which occurred because of the Seller’s fault, and are the subject of the present warranty including the cost of the expenditures on the spare parts and works necessary for the replacement or repair of the defected equipment, including the cost of transportation and insurance.
11.4. The Seller has the right to refuse the Buyer in the warranty repair or replacement of the part(s) if the Buyer does not fulfill the following terms of the warranty:
– The violation of the exploitation and storage conditions of the Goods by the Buyer;
– Absence of the duly issued documentation for the equipment (payment document, warranty document, Goods acceptance invoice);
– Violation of the warranty seals’ integrity condition;
– Self-dependant repair during the warranty period;
– Voluntary interference into the electronic/electric control system.
11.5. In case the quality of the Goods is impaired (its damage, packaging damage, etc.) that happened not because of the Buyer’s fault, the Seller shall compensate the Buyer’s financial losses, and replace the part with low quality, unless otherwise is provided by additional Contracts.
12. DOCUMENTS FOR THE GOODS
12.1. The Seller shall provide the buyer following documents:
– Original Bills of lading;
– Commercial Invoice;
– Certificate of the origin FORM A;
– Quality certificate issued by the manufacturers;
– Technical documentation for the Goods (registration certificate, mounting instruction, dismounting instruction, exploitation and maintenance instruction);
– Goods acceptance and conveyance acts;
– Other necessary documents at the Buyer’s requirement.
13. SPECIAL AND ADDITIONAL TERMS
13.1. While concluding this Contract the Parties guarantee that for the moment of this Contract conclusion they are solvent, there are no bankrupt cases instituted against them and their enterprises will not be liquidated in terms until the complete fulfillment of their obligations in accordance with this Contract.
13.2. While concluding this Contract the Parties exchange the necessary documents that certify their legal competence and capacity.
13.3. The messages shall be considered duly fulfilled by the Parties also in case when they are sent by other means of mail service in written form or handed in directly by the authorized representative of the Parties.
13.4. Any amendments, annexes and other documents, which directly or indirectly change the provision of this Contract, shall be valid only in case they are signed by both Parties, participants of the Contract.
13.5. This contract is made of two originals (both
in English and in Russian), each copy has equal
legal force, each party shall keep one copy. The
official explanation of this Contract shall be
given in English.
14. THE TERMS OF ALTERATION AND RESCISSION OF THE CONTRACT
14.1. This Contract may be rescinded:
– by one of the Parties in case another Party fails to comply with the contractual obligations;
– Following the decision of the authorized international body;
– in case of force majeure circumstances;
14.2. In any of the above cases, the Parties shall take all possible measures to make final mutual payments in accordance with this Contract.
14.3. The rescission of the Contract does not discharge the Parties of main obligations fulfillment in accordance with this Contract and of responsibility specified in Article 7 of this Contract.
15. FORCE MAJEURE
15.1. In case of a full or partial impairment of this Contract’s obligations by any of the Parties, in particular: the fire, the natural disaster, the flood, the embargo, the blockades, the military operations, the strikes, the export or import ban, the exchange restrictions, the unforeseen measures of the state bodies, the change of country legislation, under jurisdiction of which there is one of the Parties of this Contract, and other force majeure circumstances, the force of the Contract remits in proportion to the time within which such circumstances or their consequences will take place.
15.2. The Party, alleging the circumstances of the force majeure, is obliged to immediately inform the other Party about these circumstances in written form, and following the other Party’s request it must provide a satisfactory document, issued by the Chamber of Commerce or another similar state body.
15.3. The information shall contain the facts about the character of the circumstances and also, if possible, the evaluation of their influence upon these Parties’ duties fulfillment.
15.4. After the discontinuance of the mentioned circumstances, the Party, which due to them stopped the fulfillment of this Contract, shall inform without delay the other Party in written form. The Party shall also indicate the term within which it supposes to fulfill the earlier unfulfilled obligations of this Contract.
16. SETTLEMENT OF DISPUTES
16.1. All disputes arising from this contract shall be resolved by friendly negotiations. In case no settlements can be reached, the case shall be submitted to arbitration organization in Stockholm, Sweden.
The decision of the arbitration organization shall be final and binding upon both the buyers and the sellers. To submit the case to a common court is prohibited.
17. VALIDITY OF CONTRACT
17.1. This Contract shall become valid and effective from the moment of its signing by the Parties’ representatives (the signatures and the seals through the facsimile or E-mail have legal force) and shall remain in force till complete fulfillment by the Parties of their respective obligations stipulated herein.
17.2. The Contract may be rescinded in case the both parties sign such an agreement.
17.3. All the changes and amendments, which may arise out in the process of the Contract fulfillment, shall be made in written form, signed by the authorized representatives, and becomes an integral part of this Contract.