Shipbuilding Contract for the supply of one A.H.T.S. Vessel Fincantieri no. 6161 between FINCANTIERI Cantieri Navali Italiani S.p.A.
for
the supply of
one
A.H.T.S. Vessel
Fincantieri
no. 6161
between
FINCANTIERI
Cantieri Navali Italiani S.p.A.
and
ATL
Offshore GmbH
page 1 /
23
TABLE
OF CONTENTS
|
article
1
|
Object
of the contract
|
|
|
article
2
|
Ship’s
classification – Rules and regulations - Certificates
|
|
|
article
3
|
Ship
characteristics
|
|
|
article
4
|
Exclusions
from Fincantieri’s supply - ATL’s supply
|
|
|
article
5
|
Work
preparation – Supplies by third parties
|
|
|
article
6
|
Shipyard
number
|
|
|
article
7
|
Inspection
during construction
|
|
|
article
8
|
Delivery
– Liquidated damages
|
|
|
article
9
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Price
|
|
|
article
10
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Payment
procedures
|
|
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article
11
|
Defaults
|
|
|
article
12
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Trials
|
|
|
article
13
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Performances
– Liquidated damages
|
|
|
article
14
|
Maximum
amount of liquidated damages
|
|
|
article
15
|
Termination
of the contract
|
|
|
article
16
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Insurance
|
|
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article
17
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Modifications
to plans and Technical specifications
|
|
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article
18
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Events
of force majeure
|
|
|
article
19
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Patents
|
|
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article
20
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Intellectual
property rights
|
|
|
article
21
|
Assignment
of the contract
|
|
|
article
22
|
Property
rights of the Ship
|
|
|
article
23
|
Responsibility
after delivery
|
|
|
article
24
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Technical
guarantee
|
|
|
article
25
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Taxes
– Duties and other charges
|
|
|
article
26
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Confidentiality
|
|
|
article
27
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Contract
effective date
|
|
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article
28
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Law
and disputes
|
|
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article
29
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Miscellaneous
|
|
|
article
30
|
Election
of domicile
|
|
Enclosure
"A" - Protocol of delivery and acceptance of the
Ship (Art. 8)
Enclosure
“B” - Model of Bank Guarantee for Advance Payment
(Art. 10)
Enclosure
“C” - Model of Bank Guarantee for Progress Payment
(Art. 10)
Enclosure
“D” - Model of Bank Guarantee for Technical
Guarantee Period
page 2 /
23
CONTRACT
between
— The
ATL Offshore GmbH, located at Xxxxxxxxxx. 00, 00000 Xxxx, Xxxxxxx, hereinafter
referred to as "ATL" (or “the Customer”), represented by Xx. Xxxxx
Xxxxxxxx
on one
part
and
— FINCANTIERI
Cantieri Navali Italiani S.p.A., a Company organised and existing under the laws
of the Republic of Italy, with Naval Vessel Business Unit located at Xxx Xxxxx,
00, 00000 Xxxxx, Xxxxx, hereinafter referred to as "FINC",
represented by Xx.Xxxxxx Xxxxxxx as per proxy dated 20 September
2006,
on the
other part
hereinafter
defined Party and/or Parties.
WHEREBY
IT IS AGREED AS FOLLOWS:
ARTICLE
1. OBJECT OF THE CONTRACT
1.1. FINC’s
obligations shall consist in supplying one “Anchor Handling, Towing and Supply“
Vessel (hereinafter referred to as the "Ship"), to be built at FINC’s Shipyards and delivered to
ATL, which agrees to
accept delivery from FINC, and built in accordance with the conditions and
stipulations stated herein, and as specified in the following technical
documents:
Specification
:
BS
8000000M rev. 0 dated 20/09/06 – Technical Specifications
Drawings
:
2000-100
rev. 02 – General Arrangement (Xxxx Maritime)
2000-101
rev. 02 – Tankplan (Xxxx Maritime)
which,
signed by both Parties, are an integral part hereof, although not attached
hereto.
1.2. In the event of conflict
between this Contract and the Specification of Art.1.1 and / or the Plans, the
provisions of this Contract shall prevail. In the event of conflict between the
Specification and the Plans of Art.1.1, the provisions of the Specification
shall prevail.
|
1.3
|
The
main characteristic of the Ship is in moving the anchors of off-shore
platforms and in rendering services to the
platforms.
|
ARTICLE
2. SHIP’s CLASSIFICATION - RULES AND REGULATIONS - CERTIFICATES
2.1. The Ship
shall be built :
(a) under
the survey of the classification society American Bureau of Shipping (hereafter
“ABS” or the “Classification Society”) in accordance with the rules and
regulations in force at the date of this Contract in order to
obtain the Class as stated in the Technical Specifications: the
Vessel will be built as if she will fly Italian flag.
page 3 /
23
(b) in
compliance with the Main Groups of the Technical Specifications.
Should it
so happen there be a conflict, the Main Groups of the Technical Specifications
will prevail over the Main Group 1 – General.
In the
event of conflict between the Technical Specifications and/or the Plans, the provisions of the
Technical Specifications shall
prevail.
2.2 The
Ship will comply with the provisions of the Laws, Rules, Regulations and
Recommendations mentioned in the Technical Specifications, published and in force at
the signature of this Contract . For provisions of Laws,
Rules and Regulations which could enter in force in the period
between the signature of the Contract and the delivery of the Ship, the
disposals contained in Art 17.2. will apply.
On Ship’s
delivery, FINC shall hand over to ATL the certificates and documents mentioned
in the foregoing Technical Specifications.
Classification,
testing and survey charges to be paid to the foregoing Classification
Society for the
items supplied by FINC shall be for the
account of FINC.
The
decisions by the Classification Society as to the Ship’s compliance
or non-compliance with the rules and regulations whose observance is compulsory
shall be binding on both Parties hereto.
ARTICLE
3. SHIP CHARACTERISTICS
3.1. The Ship
shall have the following main dimensions and characteristics:
|
Length,
overall
|
abt. 76,50
m
|
|
Length
between perpendiculars
|
67,40
m
|
|
Breadth,
moulded
|
17,50
m
|
|
Depth,
moulded
|
8,00
m
|
|
Full
Load Displacement (890 t of fuel)
|
abt.
6.320 t
|
|
Corresponding
moulded draught
|
abt. 6,80
m
|
|
Sea
Trial Draught
|
5,00
m
|
|
Corresponding
Displacement
|
abt. 4.275
t
|
|
Maximum
Deadweight
|
not
less than 3.000 t
|
|
Corresponding
moulded draught
|
abt.
6,80 m
|
|
Maximum
speed at 5,00 m draught
|
16,3 xx
|
|
Xxxxxxx
Pull
|
180
t
|
The
foregoing main dimensions may be slightly modified, to the sole judgement of
FINC, should FINC deem such modifications necessary to fulfil the draft,
deadweight and speed contract conditions.
3.2. Cargo
capacity:
The
Vessel’s deadweight shall be 2.210 tons (of 1000 kg each) at a mean draft in
saltwater (specific gravity 1.025) of 6,00 metres above base line. The specified
deadweight shall include fuel, provisions, carried chains, cables for AH
activities, stores, freshwater, crew and passengers in addition to spare parts
in excess of the requirements of Class.
In case
some options, with respect to the basic configuration, are agreed, then deriving
reduction in contractual deadweight shall be duly taken into
account.
page 4 /
23
3.3. Speed:
The
Vessel’s average speed at sea trials undertaken as per Technical Specification
shall be at least 16,3 knots at 100% of max. continuous power, with the gear box
driven alternator developing zero output.
3.4. Fuel
consumption:
The fuel
consumption of each main engine on test
bed, including four driven pumps, shall not exceed 186,2 grams per kW per hour
at 100% of max. continuous power using grade MDO fuel with an
effective calorific value of at least 42,7 MJ/kg.
3.5. Propulsion
machinery:
Type : 4
Diesel Engines (see Technical Specification).
Max.
continuous power = 4 x 3.000 kW each.
3.6. Ship’s design
and building will be in accordance with the rules and regulations indicated at
Para. 112 of the Technical Specification, and with ISO 9001:2000 concerning the
Quality Assurance System to be activated for the Contract duration.
ARTICLE
4. EXCLUSIONS FROM FINC'S SUPPLY - ATL'S SUPPLY
FINC's
supply shall exclude any item, piece of equipment and/or machinery not expressly
indicated as included in the Technical Specification.
The ATL’s
supplies shall reach FINC’s Shipyard, delivered free to FINC’s Shipyard,
according to FINC’s instructions.
Fuel-oil
and lubricants for the set-up of the on-board plants and for all the trials of
the Ship afloat shall be paid by FINC ; the residue fuel-oil and lubricants
existing on-board on date of delivery will be paid by ATL.
ARTICLE
5. WORK PREPARATION - SUPPLIES BY THIRD PARTIES
5.1. Transmission
of technical documentation: with reference to plans and drawings listed in Annex
D of the Technical Specifications,
the procedure “121.a Work preparation” of the
Technical Specification, shall apply.
5.2. The
major sub-contractors / sub-suppliers are listed in the Vendor List attached to
BS 8000000M rev. 0, dated 20/09/06 – Technical Specifications,
and FINC will be free to choose among the names listed sending
information in writing to ATL in advance before placing the orders. The
sub-contractors / sub-supplier of other items will be designated by FINC during
construction who will take in consideration possible requests of
ATL.
Any
contact with FINC's Suppliers in connection with the supplies intended for the
Ship object of this Contract shall, in any case, be carried out through
FINC.
FINC shall guarantee ATL for
all the supplies from third parties as set forth in Article 24.
hereof.
ARTICLE
6. SHIPYARD NUMBER
The Ship
object of this Contract shall be identified with the Shipyard Number
006161.
page 5 /
23
ARTICLE
7. INSPECTION DURING CONSTRUCTION
During
the Ship's construction, ATL shall have the right to have the Ship and all
engines, auxiliary machinery, outfit, furnishings, etc. inspected by its
authorised Representatives. To this purpose, ATL’s authorised
Representatives shall be granted by
FINC free access -
during working hours - to the Ship, FINC's premises and plants and, in case that
parts intended for the Ship object of this Contract may have been sub-contracted
by FINC, free access shall be granted also to subcontractors’
plants.
ATL and/or its authorised
Representatives shall promptly notify in writing FINC of the non-compliance
with the contractual conditions of materials, works, machinery and manufactures.
Failure to serve prompt notification of such defects and/or deviations shall be
considered to all effects as an acceptance of whatever inspected.
FINC shall take into due
account reasonable remarks, if any, by ATL or by its Representatives, within the
limits of the contractual obligations.
ATL’s
authorised Representatives shall comply with the work rules prevailing at FINC's
premises as far as they may be concerned. They shall also address their remarks
exclusively to FINC's appointed Representatives.
Should
ATL elect to entrust the inspection to persons outside its organisation, such
persons shall be subject to FINC's prior approval.
FINC shall give to ATL
reasonable advance notice about the dates of the tests of the main
machinery.
On
completion of test operations for major items, Protocols of Acceptance shall be
drawn up and undersigned by ATL’s and FINC's Representatives and, wherever
required, by the Classification Society.
FINC shall provide within its
Shipyard suitably furnished office spaces for ATL’s Representatives, for the
proper performance of their duties.
ARTICLE
8. DELIVERY - LIQUIDATED DAMAGES
8.1. The Ship
will be delivered within 28/02/2009.
The
delivery of the Ship means the presentation of the Ship afloat at FINC shipyard
in Italy, moored at quay, free from encumbrances or liens, upon satisfactory
trial completion .
A
Protocol of Delivery and Acceptance, according to Enclosure "A", will be signed
by FINC and ATL and the following documents will be handed over to
ATL:
(A) Invoice
for the total final price.
(B) Declaration
of Warranty of FINC that the Ship is delivered to ATL free and clear of any all
liens, claims or other encumbrances upon the Ship, and in particular that the
Ship is absolutely free from all burdens, in the nature of imposts, taxes or
charges imposed by the city, state or county of the port of delivery, as well as
from all liabilities arising from the construction or operation of the Ship on
trial runs or otherwise, prior to delivery and acceptance.
(C) Documents
provided in the Technical Specifications, in the usual form they are issued on
delivery.
8.2. The Ship shall be
delivered to ATL pursuant to the terms of this Contract and provided the
payments hereinafter specified are made within the terms set forth, upon
completion of trials, in the Italian harbour where the Ship is moored at that
time, at the date established in previous 8.1., subject to the extension due to
events of Force Majeure as set forth in Article 18. hereof, to modifications set
forth in Article 17. hereof and to delay in payment as below.
page 6 /
23
FINC shall be entitled to one
(1) day extension in delivery time for each day of delay in the payment of any
instalment.
8.3. Should
the Ship not be delivered within the contract term for causes for which
FINC is liable,
FINC shall pay to
ATL, as final liquidated damages, an amount of EURO for each calendar day of
delay as follows :
|
No liquidated
damages
|
|
|
16th
- 30th day
|
Euro
5.000,00 (fivethousand)
|
|
Euro 10.000,00 (tenthousand)
|
|
|
61st
– 120th day
|
Euro 15.000,00 (fifteenthousand)
|
Should
the delay in the delivery of the Ship, for causes for which FINC is liable, exceeds by
120 (onehundredtwenty) calendar days the foregoing delivery date - as extended
according to this Article and Articles 17. and 18. hereof – ATL, as an
alternative to continue in receiving the foregoing liquidated damages, shall
have the right to resolve this Contract with the consequences set forth in
Article 15. hereof.
8.4. In the event
that defects and/or deviations, which could be easily eliminated, should emerge
on Ship delivery, FINC undertakes to eliminate
them at its own expense.
However,
should such an elimination entail costs and work time disproportionate to the
benefit ensuing for ATL, ATL shall be entitled to a price reduction, if any, but
shall not have the right to refuse to take delivery of the Ship.
However,
should the Ship present defects and deviations such as to make same unsuited to
the service for which she has been ordered, ATL shall have the right to resolve
this Contract with the consequences provided for in Article 15.
hereof.
ARTICLE
9. PRICE
ATL shall pay to FINC the price, fixed and not
subject to adjustment, of:
Euro 35.664.000 (thirtyfivemillionsixhundredsixtyfourthousand
Euro).
ARTICLE
10. PAYMENT PROCEDURES
10.1. ATL will proceed
as follows :
— the
first (10.2.a ) and second (10.2.b) instalment will be paid directly
by ATL;
— the
third (10.2.c ) and fourth (10.2.d) instalment will be
paid directly by ATL but supported by a Comfort Letter issued by the Bank of
ATL, which will be delivered to FINC within three months from
Contract Effective Date;
— the
fifth (10.2.e) instalment will be paid through a Letter of Credit
opened by ATL through its bank and confirmed by ATL in a bank
indicated by FINC , which will be opened and confirmed one year before the
Contract Delivery Date indicate in Art. 8.1.; or as an alternative
this instalment shall be granted by a Guarantee Letter issued by the Mother
Company of ATL.
10.2. The
price referred to in Article 9 hereof shall be paid by ATL to FINC as below :
a) The sum of Euro
1.783.200.==
(onemillionsevenhundredeightythreethousandtwohundred
Euro) representing five per cent (5 %) of the contract price stated under
foregoing Article 9., to be paid upon signature of the Contract and as a
condition for the Contract Effective Date, upon presentation by FINC to ATL
of:
page 7 /
23
· the
relevant invoice;
· a
guarantee issued as per model in Enclosure B.
b) The sum of Euro Euro
1.783.200.==
(onemillionsevenhundredeightythreethousandtwohundred
Euro) representing five per cent (5%) of the contract price stated under
foregoing Article 9., to be paid upon presentation by FINC to ATL
of:
· the
relevant invoice;
· a
certificate issued by the Classification Society stating the beginning of
steel
cutting;
· the guarantee
issued as per model in Enclosure C.
c) The sum of Euro
3.566.400==
(tremillionfivehundredsixtysixthousandfourhundred
Euro) representing ten per cent (10 %) of the contract price stated under
foregoing Article 9., to be paid upon presentation by FINC to ATL
of:
· the
relevant invoice;
· a
certificate issued by the Classification Society stating the installation of
the Main
Engines;
· the
guarantee issued as per model in Enclosure C.
d) The sum of Euro
3.566.400==
(tremillionfivehundredsixtysixthousandfourhundred
Euro) representing 10 per cent (10%) of the contract price stated under
foregoing Article 9., to be paid upon presentation by FINC to ATL
of:
· the
relevant invoice;
· a
certificate issued by the Classification Society stating that the Ship has
been
launched;
· the guarantee
issued as per model in Enclosure C.
e) The sum of Euro
24.964.800.==
(twentyfourmillionninehundredsixtyfourthousandeighthundred
Euro) representing seventy per cent (70%) of the contract price stated under
foregoing Article 9., to be paid on presentation by FINC to the bank in which
the Letter of Credit has been confirmed or, in the case of payment granted by
Guarantee Letter from the mother company, by presentation to ATL,
of:
· an
original of the relevant invoice;
· an
original of the Protocol of Delivery and Acceptance of the Ship as per
Enclosure A;
· the guarantee
issued as per model in Enclosure D.
10.2. All payments
to FINC are to be made in Italy in EURO at a bank to be designated by FINC,
without any deduction whatsoever, on the dates the payments are
due.
Any
possible expenses connected with payments, opening and confirming of
the Letter of Credit, will be at ATL’s account, except those incurred by FINC's
Bank for the account of FINC.
page 8 /
23
The
amounts due by ATL or by FINC for the modifications,
if any, to the Technical Specification and to the Plans shall be paid up to
fifty per cent (50%) on ordering of such modifications, and the balance upon
Ship delivery.
Liquidated
damages, if any, for delivery and minor performances shall be determined on Ship
delivery and the relevant amount shall be paid to the Party entitled thereto on
same date.
ATL shall
not delay or discontinue any payment foreseen in this Contract for any reason
whatsoever. Exceptions and/or claims, if any, by ATL against FINC, shall be
asserted separately according to the provisions set forth in Article 28.
hereof.
ARTICLE
11. DEFAULTS
Should
ATL be in default in the payment of any contractual instalment and/or other
amounts due whatsoever, then ATL shall pay to FINC - as from the due date -
an interest at the rate of two per cent (2%) per annum over EURIBOR at 6
months.
Should
the aforesaid delay exceed thirty (30) days from the due date, then FINC shall be entitled to
discontinue any further work on the Ship until payment of the outstanding amount
and interest thereon has been made, serving relevant notice to ATL.
Should
the aforesaid delay exceed three (3) months from the due date, then FINC shall be free to act
according to its rights, including the resolution of the present Contract or, in
case of payments granted by the Guarantee Letter issued by the Mother Company of
ATL, claiming the due payments from the “mother company”. Should ATL fail to
take delivery of the completed Ship in accordance with the conditions of this
Contract, and this not even within the term notified by registered letter sent
to its address, as set forth in Article 8.1. hereof, then the delivery of the
Ship shall be regarded as occurred both to the effects of the expiration of
payments contractually due on Ship delivery, and to the effects of the guarantee
period running.
ARTICLE
12. TRIALS
The
Ship shall run the following test and trials:
(1) Harbour
Acceptance Tests, including setting to work of the various
equipment;
(2) Sea
Acceptance Trials.
The sea
trial schedule shall be timely agreed upon between ATL, FINC and the Classification
society.
The sea
trial under para. (2) above shall be conducted as indicated in the Technical
Specification.
Should
the weather conditions (no wind, no waves or swell) not occur on the days
scheduled for trials, FINC shall have the right to
postpone it. In such a case, FINC shall be entitled to an
extension of Ship delivery term equal to the whole postponement time
period.
FINC shall have the option to
carry out preliminary sea-trials for the adjustment of the propulsion machinery
starting and operation as FINC may deem
fit.
FINC shall have the right to
repeat any trial whatsoever.
Should
any breakdowns occur during sea-trials, entailing their interruption or
irregular performance, the trial so affected shall be cancelled and shall be
repeated by and at the expense of FINC. The time period required for
repairs shall produce an extension in the delivery term to be agreed upon
between ATL and FINC.
page 9 /
23
However,
if such breakdowns could be repaired by the normal means available on board, the
trial, by previous agreement between ATL and Builder, shall be continued and
considered as valid in all respects.
ARTICLE
13. PERFORMANCES - LIQUIDATED DAMAGES
13.1. Speed
Should
the Ship's speed at trial displacement and under the conditions stated in the
Technical Specification be lower than the value stated in Art 3.3.,
FINC shall pay to
ATL, as final liquidated damages, the following amounts:
— for
the first 0.5.knot of less speed: nothing;
— for
further 0.5 knot of
less speed up to 1 knot: Euro 15.000,00 (fifteenthousand) per tenth of
knot;
— for
further 0.5 knot of less speed up to 1.5 knots: Euro 25.000,00 (twentyfivethousand)
per tenth of knot;
Should
the Ship's speed be lower than 1,5 knots of the speed
as per Art. 3.3 above, then ATL, as an alternative to receiving the above
liquidated damages, shall have the option to resolve this Contract with the
consequences provided for in Art. 15. hereof.
13.2.
Deficiency in Fuel Consumption
(a) If
the fuel consumption on the test bed trials exceeds the figure
stipulated in Article 3.4. by more than 5% but below 8%, FINC will pay as
liquidated damages Euro 50.000,00 (fiftythousand) for each
full percentage between the two figures per gram per kW per hour.
(b) If
the fuel consumption on the test bed exceeds the figure stipulated in Article
3.4. by more than 8%, ATL may, at its option, (1) reject the main engine or (2)
accept the main engine by cashing the maximum amount referred to above. If ATL
rejects the main engine and FINC as a consequence is unable to deliver the Ship
within the contractual delivery time, ATL may resolve the Contract.
13.3. Deficiency
in Bollard Pull
If the
Vessel Bollard Pull as per Art 3.1., to be obtained in correspondence
to 100% of max. continuous power on each propeller contemporarily, is not achieved, FINC will
pay as liquidated damages to ATL as follows:
— for
each full ton reduction up to 176 tons: no damages;
— for
each full ton reduction in the bollard pull from 176 to 172 achieved tons, a
liquidated damages of Euro 30.000,00 (thirtythousand).
If the
deficiency in bollard pull is more than 8 tons, ATL may resolve the
Contract.
13.4.
Deficiency in Deadweight
If the
deadweight as per Art 3.1 is not attained and the reduction exceeds 5% of the
stipulated deadweight, FINC will pay as liquidated damages to ATL Euro 3.000,00
(threethousand) per ton of reduction.
If the
reduction in deadweight is more than 10 % of the stipulated deadweight, ATL may
resolve the Contract.
page 10 /
23
ARTICLE
14. MAXIMUM AMOUNT OF LIQUIDATED DAMAGES
The
maximum amount of liquidated damages referred to in Articles 8. (Delivery) and
13. (Performances) hereof, shall in no case whatsoever exceed ten per cent (10%)
of the Ship price set forth in Articles 9., but should said amount exceed it,
then ATL waives as from now its entitlement to any higher amount: ATL, as an
alternative to receiving the above liquidated damages, shall have the option to
resolve this Contract with the consequences provided for in Article 15.
hereof.
ARTICLE
15. RESOLUTION OF THE CONTRACT
15.1. In the
event of resolution of this Contract by default of FINC, to which ATL has to
send a warning notice to fulfil the Contract within three (3) months, ATL shall
be entitled to:
|
(a)
|
the
refund of all the sums paid to FINC for
the Ship,
increased by the an interest at the rate of two per cent ( 2%)
per annum over EURIBOR at 6
months;
|
|
|
(b)
|
the
payment, as compensation of final liquidated damages of any
kind whatsoever,
of the amount of Euro 300.000,00
(threehundredthousand).
|
The
foregoing warning to fulfil the Contract shall conversely not be necessary in
the events set forth in Articles 8.3 and 13.
15.2. In the event
that the cause of resolution of this Contract shall be a default of ATL,
FINC will be
entitled to be paid in proportion to the work done, the materials bought and the
engagements undertaken, plus 10 % conventional profit on the value
of the works which will not be done and will put at disposal of
ATL the materials and/or parts of the Ship which ATL will be obliged to remove
from FINC's Shipyard within six months from resolution, failing which removal
FINC will have the
right to consider all parts / materials abandoned and will have the right to
fully dispose of them.
ARTICLE
16. INSURANCE
The Ship
under construction must be insured with leading Insurance Companies up to the
time of delivery by and at the expenses of FINC against:
a) all
risks covered by "Institute Clauses for Builders' Risks" and usual supplementary
conditions;
b) all
risks covered by "Institute War Clauses / Builders' Risks" and "Institute Strikes Clauses /
Builders' Risks".
The
insurance shall cover the contract value of the Ship.
The
insured amounts shall be allocated to the repair of damages and/or to the
reconstruction of the Ship.
In the
event of a total constructive loss, arranged or compromised, and/or abandonment,
FINC shall be
entitled to withdraw from this Contract or to fulfil it but with the right to an
adequate extension in the delivery term. Should FINC exercise its withdrawal
right, ATL shall only be entitled to the reimbursement of the amounts already
paid to FINC .
To
guarantee such reimbursements, the insurance policies stipulated by FINC shall be bound in favour
of ATL to the extent of payments made by ATL.
The
covering of the aforementioned insurance and the due fulfilment by FINC of its obligations set
forth herein, exempt FINC from any other whatsoever responsibility, both legal
and contractual, in connection with the risk and damages of the Ship under
construction.
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ARTICLE
17. MODIFICATIONS TO PLANS AND SPECIFICATION
17.1. FINC shall make the
modifications, if any, to the Specification and Plans referred to in Article 1.
hereof as may be requested by ATL provided that, in the unobjectionable opinion
of FINC, such modifications or accumulation of modifications do not adversely
affect the Ship's building programme and the production programmes of FINC and its
Sub-contractors.
Both the
requests by ATL and the relevant acceptance by FINC, shall be made in
writing.
FINC shall notify in writing
ATL of the variations in price and other contract conditions which the accepted
modifications may entail and shall execute such modifications only upon written
acceptance of the foregoing variations by ATL.
ATL’s written acceptance shall
have to reach FINC within ten (10) days
from the date of receipt of FINC's notice or within fifteen (15) days from the
notice despatch by FINC, whichever is the shorter term.
Should
such an acceptance not be received within the term set forth, FINC shall have the right to
continue the Ship's construction as if no request for modification were made by
ATL.
In case
of disagreement on the price and/or consequent variations of the contract
conditions concerning modifications accepted by FINC, ATL shall have the right
to have such modifications performed, but it shall undertake, by written notice
to FINC, to pay the price requested by FINC according to the terms
of Article 10. hereof: ATL keep on its title to exercise its rights deriving
from Art 28.
17.2. In the event
that, subsequent to the date of signature of this Contract, variations should be
made to the provisions whose fulfilment is compulsory, FINC shall notify in
writing ATL of the consequent modifications and price thereof.
ATL’s
written acceptance shall have to reach FINC within ten (10) days
from the date of receipt of FINC's notice or within fifteen (15) days from the
notice despatch by FINC, whichever is the shorter term. Failing such acceptance,
FINC shall carry
out the notified modifications, which shall be considered to all effects as
though they had been confirmed by ATL.
ATL shall
pay the price requested by FINC according to the terms
of Article 10. hereof, while keeps on its title to exercise its
rights deriving from art 28.
ARTICLE
18. EVENTS OF FORCE MAJEURE
Any event
not caused by FINC and preventing FINC from the fulfilment of
its obligations, shall be regarded as an event of force majeure.
Among the
foregoing events are in any case included strikes, lockouts, plants occupation,
non-co-operation and, in general, any work disturbance, delays in delivery of
ferrous/light-alloy materials or of important finished or semi-finished items
ordered to sub-suppliers (except late delivery due to late order by FINC),
casting and machinery rejects and similar, as well as the effects that the
foregoing facts may directly or indirectly have on the whole of FINC's
engagements.
Should
such events occur, the Ship's delivery term shall be extended by the period of
time lost by FINC as a consequence of such
events, provided that FINC timely notifies in
writing ATL of that occurrence.
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ARTICLE
19. PATENTS
FINC, for
the items of its own supply, shall hold ATL harmless against any claim made by
third parties for patent rights and for any other relevant reason, and FINC undertakes for its
account every liability or indemnity whatsoever.
ARTICLE
20. INTELLECTUAL PROPERTY RIGHTS
The Ship
will be built based on the Design property of XXXX a.s. (Norway) under License
for use of FINC for the Ship object of this Contract.
The
technical information related to the Ship and furnished to ATL under this
Contract, including reports, drawings and other data, are to be
protected.
A
dedicated “Non Disclosure Agreement” between FINC and ATL has been signed on
15.08.2006 and the Parties make reference to the disposal here contained for all
effects.
None of
the said information may be reproduced by ATL, unless with written consent of
FINC which shall
not be unreasonably withheld.
Notwithstanding
the above, ATL shall have the right to use the information only for maintenance
and repairs, and for commercial purposes .
FINC guarantees that the Ship
shall not infringe any patent, copyright, registered design, trademark or trade
name.
In the
event of any action, claim or demand for the infringement of an Intellectual
Property right by the use of the Ship, ATL shall inform FINC of such claim without
delay.
FINC shall indemnify ATL in
respect of any liability arising thereof and bear all
expenses relating to the said action, claim or demand , provided FINC has been given the
opportunity to conduct the action and / or proceedings at its own
convenience.
ARTICLE
21. ASSIGNMENT OF THE CONTRACT
Neither
of the Parties hereto shall assign this Contract to a third party unless prior
consent of the other Party is given in writing, such consent not to be
unreasonably withheld.
One,
among others, conditions for consent is that the Assignee will maintain all
guarantees received by FINC (Comfort Letter, Letter of Credit,
etc.), or in case of renewal by the Assignee such guarantees will be
renewed in a manner not decreasing the level of guarantee of FINC.
In case
of payments granted by Guarantee Letter issued by the mother company of ATL,
then the mother company will in any case remain liable toward FINC of all
obligations of the Assignee deriving from the Contract , and these
engagements will be contained in a separate documents to be agreed and delivered
to FINC before the signature of the assignment.
The deed
of assignment will be subject to the same legal formalities of this
Contract.
For
financing purposes ATL can assign some rights hereof (agreed with
FINC but in any case excluding mortgage or any lien on the ship under
progress) in order to obtain means for the payment of the
third (10.2.c ) and fourth
(10.2.d) instalment.
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ARTICLE
22. PROPERTY RIGHTS OF THE
VESSEL
During
the construction, FINC and ATL undertake not to dispose of the hull and / or
parts thereof, the engine and / or parts thereof, the machinery, equipment and /
or outfitting materials and in general anything else intended for the
construction of the Ship, and not to allow any mortgage or lien being registered
on the Ship or part of the same .
The
property of the Ship will pass on to ATL upon Ship delivery.
ARTICLE
23. RESPONSIBILITY AFTER DELIVERY
On
delivery of the Ship to ATL, every responsibility for the safety and for the use
of the Ship is transferred to ATL, remaining on FINC only the guarantee
obligations set forth in Article 24. hereof.
ARTICLE
24. TECHNICAL GUARANTEE
24.1. The technical
guarantee of the Ship shall have the not extendable validity of twelve (12)
calendar months (except for those equipments for which the supplier grants a
longer period ) commencing on the date of the Ship's delivery to
ATL.
On ATL’s
request, FINC shall, at its own expense, repair and/or replace at one of its
Shipyards any part of its own supply (including the supply of its
Sub-contractors and suppliers) for which ATL notifies on delivery defects or
deviations or which, during the foregoing guarantee period, show defects and
deviations not remarkable on delivery, chargeable either to design, materials or
workmanship, provided that such defects and deviations are notified in writing
to FINC on delivery or, at the latest, within one (1) month from the
date of their discovery and provided that ATL can prove that such defects and
deviations are attributable to FINC.
Repairs
and replacements carried out by FINC in accordance with this Article shall
be
covered
by a prolongation of guarantee governed by all the provisions of this Article
but the extent of the guarantee shall in no case exceed the time period of
twentyfour (24) months from the date of Ship's delivery.
In the
event that the Ship should need to be dry-docked, solely for repairs or for
replacements made necessary by defects or deviations attributable to FINC,
pursuant to the provisions of this Article, the relevant expenses shall be borne
by FINC exclusively.
24.2. Should it be
necessary, owing to the conditions and location of the Ship or to avoid delays
in carrying out urgent repairs or replacements, ATL may have the repair and/or
replacement work covered by FINC's guarantee carried out elsewhere from FINC's
Shipyards, provided that ATL previously notifies FINC, by letter or facsimile,
about the type and extent of the defects or deviations to be remedied, stating
the reason for necessity to have the work carried out elsewhere and provided the
relevant approval from FINC is received by ATL.
In such a
case, FINC shall reimburse to ATL the documented expenses incurred by ATL for
such repairs and/or replacements.
Such a
reimbursement, however, shall not exceed the cost which FINC would have borne by
carrying out the repairs and/or replacements at its Shipyards.
If
requested by FINC, ATL shall return, at its care and expense, the parts
replaced.
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FINC
shall not have to make any reimbursement for works, repairs and/or replacements
carried out by ATL without the prior approval of FINC.
In any
case, any guarantee and/or liability by FINC for repairs and/or replacement work
carried out outside FINC's Shipyards is excluded.
24.3. End-guarantee
works, if any, will be done at Muggiano Shipyard, where ATL will
make the Ship available at the end of the 12 months period at its care and
cost.
If, in
accordance with ATL, repairs and/or replacements will be done due to use and/or
maintenance activities, ATL shall be charged with the relevant
expenses.
24.4. FINC's
liability shall be limited to the foregoing obligation, and FINC and its
sub-contractors and suppliers shall have no liability whatsoever for damages in
any way deriving from or consequential to the foregoing defects or connected
with deviations or with the repair and replacement processes; likewise is
excluded any other liability deriving from or in any way connected with any
other cause not included in the foregoing guarantee obligation, which covers
solely repair and/or replacement.
FINC
shall not be liable for defects or deviations due to normal wear and tear of the
materials and for any damage whatsoever due to use of the Ship, to accidents
occurred with the Ship moored and/or at sea, or to fires, mismanagement or
negligence in the use of the Ship by ATL or by persons which, at the time of the
damage, were in possession of or governing the Ship, and FINC will not bear any
responsibility for repair and/or replacement consequent to the above
..
24.5. FINC shall
have the right during the first six months of the guarantee period to put on
board of the Ship, at its costs, an engineer to follow the operations of the
Ship. ATL will recognise to the engineer a treatment on board of the
same level of the chief engineer: during the stay on board of the guarantee
engineer, all communications related to guarantee problems will be presented to
him.
ARTICLE 25. TAXES – DUTIES AND OTHER CHARGES
All
taxes, including income taxes , duties, dues and fees or similar charges levied
by the Republic of Italy for the implementation of this Contract shall be borne
by FINC.
All
taxes, including income taxes, whether for persons and/or Companies, duties dues
and fees or similar charges levied by Germany in connection with the
implementation of this Contract shall be borne by ATL.
ARTICLE 26. CONFIDENTIALITY
No
advertisement or statement in respect of the terms and conditions of this
Contract shall be
published or made by FINC or by ATL in
any newspaper, magazine or in any other form of media without the prior written
agreement of both parties.
ARTICLE
27. CONTRACT EFFECTIVE DATE
This
Contract shall
become effective when the first payment instalment as per Art 10.2 letter
a) has been cashed by FINC.
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In the
event that the first payment will not be made for whatever reason, within 30
calendar days from the signature of this Contract, FINC will have the right to
update Terms and Conditions of this Contract.
ARTICLE 28. LAW AND DISPUTES
The
present Contract is ruled by the laws of Switzerland.
Any
disputes, conflicts or differences of any kind, which shall arise between the
Parties with regard to the interpretation of this Contract, or relating to the
performance of any of the agreed obligations, under this Contract shall, if
possible, be amicably settled.
Failing
such amicable settlement the Parties have elected to have the dispute referred
to an arbitration tribunal of three arbitrators, who will judge in Geneva
(Switzerland) in accordance with the provisions of the Rules of Conciliation and
Arbitration of the International Chamber of Commerce, to which the Parties
declare to adhere.
The two
Parties shall pay fees and expenses of the arbitration proceeding in accordance
with the award passed by the Arbitration Tribunal.
The award
passed by the Arbitration Tribunal shall be final and binding on both Parties
and shall be enforceable before any court of competent
jurisdiction.
The
commencement of any arbitration proceeding under this Clause shall in no way
affect the continual performance of the obligations of the Parties under this
Contract, except insofar as such obligation relate to the subject matter of such
proceedings.
ARTICLE 29. MISCELLANEOUS
This
Contract constitutes the entire agreement between ATL and FINC and supersedes
and cancels all prior representations, negotiations, letters, acceptances,
agreements and understandings, whether verbal or written, between ATL and FINC,
with respect to or in connection with any of the matters or things to which this
Contract applies or refers.
Any
amendment to this Contract shall be made in the form of a written amendment,
fully agreed and signed by ATL and FINC.
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ARTICLE 30. ELECTION
OF DOMICILE
For all
the purposes of this Contract, ATL elects its domicile in Xxxxxxxxxxxxx 00,
00000 Xxxx, Xxxxxxx , and FINC in Xxx Xxxxx 00, 00000
Xxxxx, Xxxxx.
SIGNATURE
This
Contract is signed in three (3) identical originals, one for FINC, one for ATL
and the third copy (with signatures authenticated by a Notary Public in the
place of signature) for the registration in the Italian Coast Guard of the
territory in which the Ship is built.
SIGNED
by Xx. Xxxxx Xxxxxxxx and Capt. Xxxxxxxx Xxxxxxx
who
hereby declare to act on behalf of
and be
duly authorised by ATL
—-/S/——————————————-/S/————————————
SIGNED by
Xx. Xxxxxx Xxxxxxx
who
hereby declares to act on behalf of
and be
duly authorised by FINC
—/S/————————————————
DATE ……22/09/06…………………………… PLACE
…Leer…………………
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