SALES CONTRACT
Prefabricated
Plate Heat Exchanger Unites
And
Components of Separate Sub stations
The
Buyer: Dalkia (Jiamusi) Urban Heating Company Ltd
The
Seller: Shenyang Taiyu Machinery & Electronic Equipment Co.
Ltd.
Contract
No.: CS0101/063-0607
Sign
date: June 18 2007
1
The
Contract is made and entered into through friendly negotiation by and between
Dalkia (Jiamusi) Urban Heating Company Ltd, a corporation organized and existing
under the laws of China (hereinafter referred to as the Buyer) and Shenyang
TAIYU Machinery & Electronic Equipment Co., Ltd. a corporation organized and
existing under the laws of China (hereinafter referred to as the Seller or
Taiyu) under [Contract Law of the People's Republic of China]
Taiyu
promise design and function for its product and service to meet the end user’s
requirements in the Appendix 2 technical specification. And bear legal
duty.
1. Taiyu
Scope of Supply and Price
See
Appendix 1 for details.
2. The
technology standard for the Contract Equipment
Technical
Requirements from the Buyer: see Appendix 2 for details.
Standards
for manufacturing goods: CJ/T 191-2004.
3. Guarantee
and Warranty
The
Supplier warrants that it will repair and correct any Defects in the Supply,
that occur during the Warranty Period (including any required re-design or
re-engineering) at no cost to the Buyer. The Buyer’s warranty rights shall not
be reduced by the presence of spare parts at the Plant or the lack
thereof.
The
Supplier shall not be responsible of defects which are the consequences of
mishandlings, faulty operation or insufficient maintenance.
The
Supplier’s internal costs for removal, replacement, and reinstallation of
materials and equipments necessary to all others internal costs incurred by the
Supplier as a result thereof, including transportation and taxes of whatever
nature, shall be borne by the Supplier, exclusive of any costs incurred by
Buyer, the user and any third parties, in particular site personnel costs, cost
for stopping/shut-downs /re-starting, and any other consequential
costs.
The
Supplier shall perform such remedial actions and make any tests in such a manner
and at such time so as to minimize revenue loss to the Buyer and disruption of
normal operations at the Plant. However, in case those shut-downs of the plant
are required to allow the Supplier to fulfill its obligation of warranty, Buyer
shall obtain corresponding shut-downs.
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3.1
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The
Seller guarantees that the Contract Equipment shall be completely new,
advanced in technology and superior in quality, free from any defect in
design, material and workmanship, suitable for the use and purpose
specified in the Contract and in conformity with the stipulation of the
Appendix 1.
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3.2
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The
Warranty Period of the Contract Equipment shall be two (2) heating seasons
from the date of delivery from the seller or latest August 2009, all the
warranty of this contract expire at August
2009
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3.3
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During
the Warranty Period, the buyer should give written information in 7
working days if the buyer found the quality problems which are not caused
by the buyer. The seller has the responsibility to take necessary measures
to avoid damage coming and extending. Otherwise, the buyer has no right to
demand penalties of damage.
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3.4
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After
receiving the notifying message from the buyer, the seller should repair
or replace the poor quality components in 7 working days, while the buyer
should provide necessary help.
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3.5
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The
seller has no responsibility for below
items
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3.5.1
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Damage
cause by the buyer or the third party modifying without the agreement of
the seller.
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3.5.2
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Damage
caused by the buyer or the third party deviating notice, instruction,
requirement, operating book or manual provide by the
seller.
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3.5.3
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Damage
caused by the buyer or the third party’s duty, including accident or
scrimshanks.
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3.5.4
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Other
damage caused by the buyer or force
majeure.
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3.6
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The
seller will provide the guarantee and warranties 3.1 to 3.4 free of charge
if the buyer doesn’t break any items in this contract. If the buyer wants
to repair or change components under items 3.5.1 to 3.5.4, the seller will
charge the buyer for service, repairing, material and all other
charges.
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The Buyer
shall promptly notify the Supplier in writing of the discovery of any Defects in
the equipment.
In the
event of any Defects, the Supplier shall, at the Supplier’s own cost and expense
and in the shortest reasonably possible time, but in any event within two (2)
days for Defects that jeopardize the performance of the Plant or any Section
thereof, or twenty (20) days for other Defects following the Supplier’s receipt
of written notice of any Defect or the Supplier’s otherwise obtaining knowledge
of any Defect:
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(i)
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Initiate
the performance of, and thereafter diligently pursue the completion of,
any necessary Services to correct any
Defects;
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(ii)
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Initiate
and thereafter diligently pursue the completion of re-design,
re-engineering, organization of repair, reworking, and re-testing (as
appropriate) of defective materials and equipment or systems (and
Materials and Equipment or systems supplied by the Suppliers damaged as a
result of such defective materials and equipment or systems) and
construction workmanship, and/or construct at the Supplier’s expense any
changes, modifications, or additions to the Equipment supplied by the
Supplier that are necessary and furnish the Materials and Equipment in
accordance with the standards set forth in 16.1.? Any similar Materials
and Equipment which suffer from a like Defect shall also be corrected ;
and
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(iii)
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Provide
to the Buyer the relevant data and records regarding the
Defect.
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If the
Supplier fails to initiate as above mentioned within the above time periods or
to diligently pursue such repair work, Buyer may undertake such repairs at the
Supplier’s expense, and such work Buyer, or others on behalf of Buyer, shall not
void the Supplier’s warranty hereunder.
4 Delivery
and Acceptance
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4.1
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Delivery
schedule:
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Delivery
Schedule of Jiamusi East Central Heating Project
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4.1.1
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One
week after DALKIA settle the down payment, Taiyu deliver the PHEs for all
the separate stations.(Within 21 days after signed the
contract)
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4.1.2
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Taiyu
promises to deliver the pumps of separate stations from the 4th week after
signing the contract, and finish this delivery at 5-6th week（42 days）.
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4.1.3
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Start
from 6th week, Finish the delivery of Automation components of separate
station before 9th week after signed the
contract.
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4.1.4
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From
6th week after signing the contract, Taiyu promise to delivery the heating
units, and finish the delivery at 9th
week.
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4
Remark:
If we can sign contract at June 18th, Taiyu promise to finish the delivery
before Aug 25th 2007.
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4.2
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The
seller could arrange delivery authored by the buyer; transit the goods to
the destination by truck or by railway. The installation company should
unload the goods in the appointed place. The delivery way in this contract
is: by truck.
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4.3
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The
buyer should check the contract equipment within 15 days after receive the
goods and note the seller in writing in 20 days if there is any problem,
otherwise it will be deemed as
acceptance.
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5. Payment
Term N°1:
Thirty percent (30%) of the total Contract Price viz. CNY 3,645,665.00 (Say:
three million six hundred and forty-five thousands six hundred and sixty-five
Chinese Yuan only) shall be paid by the buyer to the seller （before June 30th
2007）as the
down payment not later than 15 days after the contract signed by both sides,
Taiyu will give the general arrangement drawings within 5 working days after
sign the contract.
Term N°2
: 30 % of the total Contract Price viz. CNY 3,645,665.00 (Say: three million six
hundred and forty-five thousands six hundred and sixty-five Chinese Yuan only)
at the signature of the Factory Acceptance Test. This payment should be not
later than 15 days after the FAT（before July 20th
2007）.
Term N°3
: Taiyu will issue 10% performance bond of the total Contract Price viz. CNY
1,215,222.00 (Say: one million two hundred fifteen thousands two hundred and
twenty-two Chinese Yuan only) to DALKIA after DALKIA settle the payment in Term
N°2 (before August 15th 2007).
Term N°4
: 10 % of the total Contract Price viz. CNY 1,215,222.00 (Say: one
million two hundred fifteen thousands two hundred and
twenty-two Chinese Yuan only) at the delivery in Jiamusi, this
payment should be not later than 30 days after the SAT (before October
2007).
TermN° 5
: 20 % of the total Contract Price viz. CNY 2,430,444.00 (Say: two million forty
hundred and thirty thousands four hundred forty-four Chinese Yuan only) at the
end of blank tests, this payment should be not later than 30 days ,after the
blank tests and before September 15th,2007.
Term N°6
: 10 % of the total Contract Price viz. CNY1,215,222.00 (Say: one
million two hundred fifteen thousands two hundred and
twenty-two Chinese Yuan only) at the signature of the Provisional
Acceptance Certificate, Taiyu will issue 5% warranty Bond first. And at the same
time the 10% performance bond in Term N°3 will be ended. This payment should be
not later than 30 days (before January 1 2008)
5
A letter
of guarantee issued by the seller’s bank covering five percent (5%) of the total
Contract Price viz. CNY 607,611.00(Say: six hundred and seven thousands six
hundred and eleven Chinese Yuan only) should be effected to the Seller as
quality warranty before the last payment from the buyer to the
seller.
The Buyer
will provide payments after receipt of supplier’s invoices
6. Discrepancy
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6.1
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All
disputes arising in connection with this Sales Contract or the Appendix
thereof shall be settled by way of amicable negotiation. Once one party
requests negotiation in writing, the other party should response
immediately. In case of no settlement can be reached in 20 days, the case
at issue shall then be submitted to China International Commerce
Arbitration Institute. The arbitration award shall be final and binding on
both parties.
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6.2
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Notwithstanding
any reference to arbitration, the two Parties shall continue to perform
their respective obligations under the Contract unless the two Parties
otherwise agree.
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7. Penalties
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7.1
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Late
delivery: In case the Seller fails to meet the delivery schedules as
contract, the Seller shall pay late delivery penalties of two percent (2%)
per month of the delayed goods’ value; the upper limit is five percent (5
%) of the delayed goods’ value. Once the seller accepts the penalties, the
buyer has no right to reject the goods. Late delivery caused by force
majeure is excluding in the penalties
items.
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7.2
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The
buyer collect good late or settle payment late: In case of the buyer
collect goods late except force majeure, the buyer should settle
additional stock charges, the stock charges is 2% per month of the
contract value. In case of the buyer settle payment late, the buyer should
charge 0.6‰ of the contract value one day, the seller can stop delivery
and services temporarily, and the seller has right to terminate the
contract after the 60th days.
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7.3
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Taiyu
will accept penalty, in case Taiyu’s equipments can not reach the designed
parameters specified in this
contract.
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7.4
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Returning
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7.4.1
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The
scope of returning: Returning because of market price greatly dropping,
and there is no quality problems, no operating and unpacking goods in
general standard is excluded in this items. The validity date of
returning: 60 days after collecting
goods.
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7.4.2
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In
case of the returning goods is OK after the seller inspects, the seller
will deduct 80% of returning goods charges in the total contract value.
All freight charges will be paid by the
buyer.
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7.4.3
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The
buyer claims returning without collecting goods, the buyer will deduct 80%
of returning goods value in the total contract
value.
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8. Indirectly
losing
The
indirectly losing caused by the buyer signing, executing, applying the contract
under any case, the seller doesn’t have responsibility.
9. Responsibility
limit
The upper
limit of penalty to the seller is 5% of the contract value at any
case.
10. Contract
validity
The
contract validates after signed by the two parties.
The
period of validity of this contract is from validating till reaching the quality
guarantee date and the buyer settle all the payment.
11. Intellectual
Property and confidential Technology
The
intellectual Property and Technological confidence relate with this contract,
including but not limit to product design, technology documents, drawings and so
on are belong to the seller. The buyer has responsibility to keep confidential.
The buyer shouldn’t copy the any above documents, and shouldn’t leak to the
third party.
12. Others
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12.1
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This
contract is made in eight (6) copies, four (4) for the Buyer and four (2)
for the Seller and execute in fax.
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12.2
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All
amendments, supplements and alterations to the terms and conditions of the
Contract shall be made in written form and signed by the authorized
representatives of the two Parties through
consultation.
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12.3
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Any
notice, request and communication relate with this contract between the
two parties should be made in written
form.
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12.4 Appendices
to the Contract are integral parts of the Contract and shall have the same legal
force as the Contract itself.
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The
buyer (seal):
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The
seller (seal):
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Representative: Xx
Xxxx Bin,
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Representative:
Wu Jun
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Xxxxxxx
Xxxxxxxxxx
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Address:
Jiamusi Heilongjiang
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Address:
00X-0, Xx.0 Xxx.,
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Xxxxxxxx
Econonomic &
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Technological
Development Zone
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Telephone:
0000 00000000000
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Telephone:
x00 00 00000000
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Fax:
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Fax:
x00 00 00000000
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Tax
Registration No.:
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Post
Code: 154002
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Post
Code: 110027
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Bank
Name: Jiamusi ICBC,
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Bank
Name: Agricultural
Bank
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of
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China
Shenyang
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Development
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Zone
Branch
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Central
branch
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Account:
0904021109223051063
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Account:
06-182001040008276
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