KCAB의 국제중재규칙: Any dispute arising out of or in connection with this contract shall be finally settled by arbitration in Seoul in accordance with the International Arbitration Rules of the Korean Commercial Arbitration Board.
2주차 – xx조항 작성 가이드라인
1. 계약 협상력에서 우위에 있는 xx
ㆍKCAB xx규칙에 따른 xxx재조항
KCAB의 국내xx규칙: 이 계약으로부터 발생되는 모든 분쟁은 xx상사중재원에서 국내 xx규칙에 따라 xx로 xx 해결한다.
2. 상대방이 당사자xxx식 등 KCAB xx규칙에 반대하는 xx
ㆍKCAB 국제규칙에 따른 xxx재조항 주장
KCAB의 국제xx규칙: Any dispute arising out of or in connection with this contract shall be finally settled by arbitration in Seoul in accordance with the International Arbitration Rules of the Korean Commercial Arbitration Board.
ㆍ The number of arbitrators shall be [one/three]
ㆍ The seat, or legal place, of arbitration shall be [City/Country]
ㆍThe language to be used in the arbitral proceedings shall be [language]
3. KCAB xx를 적극 반대하는 xx
ㆍxxxx이 xx를 신청할 가능성이 높다고 판단되는 xx [한∙중 xx 간 예시]
All disputes in relation to this contract shall be finally settled by arbitration in the country of the claimant. In case the claimant is (a Korean enterprise), the arbitration shall be held at the Korean Commercial Arbitration Board. In case the claimant is (a Chinese enterprise), the arbitration shall be held at the China International Economic and Trade Arbitration Commission.
ㆍ상대방 xx이 xx를 신청할 가능성이 높다고 판단되는 xx [한∙일 xx 간 예시]
All disputes related to this contract shall be finally settled by arbitration in the country
of the respondent. In case the respondent is (a Korean enterprise), the arbitration shall be held at the Korean Commercial Arbitration Board. In case the respondent is (a Japanese enterprise), the arbitration shall be held at the Japan Commercial Arbitration Association.
4. 상대방 xx이 자국의 xxxx을 계속 고집하는 xx
ㆍSIAC 권장 xx조항[xxx.xxxx.xxx.xx]
“Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause.
ㆍThe Tribunal shall consist of * arbitrator(s). ㆍThe language of the arbitration shall be .
* State an odd number. Either state one, or state three.
5. Appendix – Sales Agreement
SALES AGREEMENT
This Agreement("Agreement") is concluded on the [1st] day of [March, 2002] by and between [ABC Corp.], with its registered office at [140 West 51st Street New York, N.Y., U.S.A.] ("Buyer")and [Samsung Co., Ltd.], with its registered office at [000, Xxxxxxx_xxxx, Xxxxxxx_xx, Xxxxx, Xxxxx] ("Seller") :
WITNESSTH
WHEREAS, the Buyer desires to purchase from the Seller and the Seller desires to sell to the Buyer [five million sets of T.V.] during a period of[5] years.
NOW, THEREFORE, in consideration of the covenants herein contained, the parties hereto agree as follows:
Article 1. Sale of Goods
1.1 The Buyer shall purchase from the Seller and the Seller shall sell to the Buyer newly manufactured [T.V. Set] ("Goods") subject to the terms and conditions herein provided.
Article 2. Xxxxxxxx and Quality
2.1 For [5] years commencing [March 1, 2002], the Buyer shall purchase from the Seller and the Seller shall sell to the Buyer [one million(1,000,000) pieces] of the Goods per year to make the total quantities of the sale of the Goods [five million(5,000,000)pieces] during[March 1, 2002] to [February 28, 2007.]
2.2 Specification and Quality
2.2.1 The specification of the Goods shall be prescribed and specified in Specification attached hereto as Exhibit[I].
2.2.2 The Goods sold on sample shall be warranted by the Seller to conform exactly to the sample upon arrival at destination.
Article 3. Price
3.1 The agreed unit price of each Goods("Price") shall be [Two Hundred United States Dollars(US$200)] on [C.I.F. New York] basis.
3.2 The Price shall be fixed and effective up to shipments performed on or before [the end of September, 2002] and thereafter the Price shall be readjusted every [6] months according to Seller's request.
Article 4. Payment
4.1 Except otherwise agreed by the parties, all the payment for the Goods shall be made in United States Dollars by an irrevocable Letter of Credit in favor of the Seller, [confirmed by first class international bank designated by the Seller]. The Letter of Credit shall be established by the Buyer at least [two months] prior to each scheduled shipment date to be stipulated in Exhibit[II]
and to be negotiable by sight draft and to be valid for no less than [thirty (30) days] after the latest date allowed for the shipment.
The Buyer shall bear all banking expenses associated with the establishment of the Letter of Credit.
Partial shipment, transshipment and partial negotiations of Letter of Credit shall be permitted and the letter of credit shall be worded accordingly.
4.2 Delay by the Buyer in establishing the Letter of Credit shall allow the extension of the time for performance of this Agreement by the Seller to such extent as may be necessary to enable it to make delivery in the exercise of reasonable diligence after such Letter of Credit has been established.
Should opening the letter of credit be delayed for causes for which the Buyer is liable, Buyer shall pay the Seller amount equal to [twotenth of one percent(0.2%)] of the amount of relevant letter of credit per each full week as liquidated damages within [three days] from the receipt of relevant bill from the Seller.
However, the total amount of liquidated damages shall not be more than [one percent(1%)] of the amount of relevant Letter of Credit. Should opening of Letter of Credit be delayed by more than [five (5) full weeks], the Seller may terminate the Agreement without prejudice to the Seller's rights under the Agreement, including claim of said liquidated damages.
Article 5. Shipment of the Goods
5.1 The Goods shall be delivered by the Seller to the Buyer at [any Korean port] in accordance with the Shipment Schedule attached hereto as Exhibit[II]("Shipment Schedule").
5.2 The Seller shall arrange the suitable vessel of any flag, subject to freight being prepaid, to transport the Goods to the destination, [New York, U.S.A] or other seaport designated by the Buyer on relevant Letter of Credit provided that C.I.F. price is not increased.
The Seller shall notify by telex, FAX or E-mail the Buyer of necessary information at least [7] days before each shipment so that the Buyer may make arrangement for receipt and inland transportation, if necessary, of the Goods.
Article 6. Late Delivery
6.1 In the event that the Seller delays shipment of the Goods in accordance with the shipment Schedule for reasons solely attributable to the Seller, the Buyer shall grant the Seller [seven days] grace, without liquidated damage on each specified delivery.
After that [seven days'] grace, the Buyer may have the right to claim [one percent(1%)] of the contract price of the Goods of which shipment shall have been delayed, per each full week from [seven days] after the scheduled delivery date until actual shipping date thereof.
The total amount of the liquidated damage under the Agreement shall be limited to [six percent (6%)] of the contract price of the Goods delayed.
6.2 If the aforesaid delay of delivery exceeds [six (6) full weeks], the Buyer may terminate the Agreement, without prejudice to Buyer's right under the Agreement, including claim of said liquidated damages.
6.3 In the event of Force Majeure, liquidated damage for late delivery shall not be applied.
Article 7. Packing and Marking
7.1 The Goods shall be packed and marked in the manner customary for exporting. In case special instructions are necessary, Buyer shall furnish Seller with such instructions in time for preparation or shipment of the Goods.
Article 8. Insurance
8.1 Seller shall effect marine insurance on all shipments on [ICC (B)] for 110% of the invoice amount.
Article 9. Warranty
9.1 Each good(s) supplied by the Seller is hereby expressly warranted to be free from defect in material and workmanship under normal use and service.
9.2 This Warranty shall be limited to a period of [12 months] after delivery thereof to the Buyer under storage in a roofed warehouse.
9.3 The above warranty shall not apply to the Good(s), which is used for a purpose for which it was not designed or which has been subject to normal wear and tear, damage caused by accident, misuse, abuse, damage occurring during shipment.
9.4 The Seller's liability under this warranty shall be IN LIEU OF ALL OTHER LIABILITIES OF THE SELLER for defect in material or workmanship of the Goods or ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, statutory or at common law WHICH THE BUYER HEREBY RESERVES. In no event shall the seller be liable for consequential or indirect damages regarding the Goods.
Article 10. Claim
10.1 Any claims by Buyer of whatever nature arising under this contract shall be made by cable within [thirty(30) days] after arrival of the Goods at the destination specified in the bills of lading. Full particulars of such claim shall be made in writing, and forwarded by registered mail to Seller within [fifteen (15) days] after cabling. Buyer must submit with particulars sworn surveyor's reports when the quality or quantity of the Goods delivered is in dispute.
Article 11. Force Majeure
11.1 Except for the payments due for the Goods delivered by the Seller, any party ("Affected Party") hereto shall not be responsible to the other party ("Non-Affected Party") for nonperformance [either in whole or in part] or delay in performance of the terms and conditions of the Agreement, due to war, war-like operation, Acts of God, riot, strikes, sabotage or other labor disturbances in the manufacturing plant; lockout of the manufacturing plant ; epidemics, floods, earthquakes, typhoon; embargoes, laws and regulations of the Buyer's country or seller's
country; or any other causes beyond the control of the parties.
In case of any such event the terms of this Agreement relating to time and performance shall be suspended during the continuance of the event.
11.2 Within [five (5) days] from the date of commencement of the event, the Affected Party shall advise the Non-Affected Party by telex, FAX, E-mail or cable of the date when such delay in performance commenced, and the reasons therefor as enumerated in this Agreement; likewise, within [five (5) days] after the delays ends, the Affected Party shall advise Non-Affected Party by telex, cable, FAX or E-mail of the date when such delay ended, and shall also specify the redetermined time by which the performance of the obligation hereunder is to be completed. Article 12. Xxxxxx, Indemnity
12.1 In the event either party breaches an obligation under this Agreement or interferes with the other party in the performance of this Agreement, it shall be liable to the other party for any reasonable direct damages thereby sustained by the other party.
In the event a third party commences any proceeding for which a party hereto is liable, such party shall promptly notify the other party and allow the other party to participate in all stages of the proceeding and settlement thereof. Failure to promptly notify or allow equitable participation by the other party shall reduce the right of indemnity by the extent of actual resultant prejudice.
12.2 It is specifically understood and agreed by both parties that the Buyer shall be solely responsible for observance of any restriction against importation of the Goods imposed by any [federal or local authority in (U.S.A)] and shall defend and save harmless the Seller from any liabilities and obligations under the restriction or any claims arising out of the infringement of the restriction.
Article 13. Taxes/Duties, Contingent Charges
13.1 Any duties, tariffs for import and export or other taxes or charges which are now assessed or imposed or which may hereafter be assessed or imposed by [U.S.A.] Government or other
competent authorities other than [Korea] in connection with the Goods and/or transactions thereof shall be borne and paid by the Buyer.
13.2 Increase in freight, insurance premiums, and/or surcharge, due to war, threat of war, warlike conditions, port congestion or other emergency or contingency unforeseen or not existent at the time of concluding the Agreement, shall be for the Buyer's account.
Article 14. Aftersales Service
14.1 The Seller may, upon request of the Buyer and consent of the Seller, dispatch some experienced technicians to some places in [U.S.A.] for the purpose of rendering effective after- service in connection with the Goods.
Article 15. Infringement
15.1 The Buyer shall be liable for and hold the Seller harmless from and against all losses and damages incurred and suits and claims brought by third party due to possible infringement of trademark, patent, copyright or other proprietary rights of the third party in connection with the Seller's manufacture and sale of the Goods according to the Specification attached hereto as Exhibit[I].
Article 16. Termination
16.1 The Agreement may be terminated upon occurrence of any of the following events:
ⅰ) Agreement in writing of the parties
ⅱ) By the non-defaulting party, upon default by the other party in the performance of any of its obligations under the Agreement, if not cured within [30 days] after receipt of written notice from the non-defaulting party;
ⅲ) By the other party, upon either party's (a) making an assignment for the benefit of creditors, being adjudged bankrupt, or becoming insolvent; (b) having a reasonable petition filed seeking its dissolution or liquidation not stayed or dismissed within [sixty (60)days]; or (c) ceasing to do
business for any reason;
ⅳ) By the Seller, if the Buyer fails to open relevant Letter of Credit by more than [five (5) full weeks] as stipulated in Article 4.2 hereof;
ⅴ) By either party, if a force majeure condition under Article 11 hereof makes it unreasonable to proceed with the Agreement in the foreseeable future.
16.2 Upon termination of the Agreement, neither party shall be discharged from any antecedent obligations or liabilities to the other party under the Agreement unless otherwise agreed in writing by the parties.
16.3 Nothing in the Agreement shall prevent either party from enforcing the provisions thereof by such remedies as may be available in lieu of termination.
Article 17. Arbitration
17.1 All disputes, controversies, or differences which may arise between the parties, out of or in relation to or in connection with this contract or for the breach thereof, shall be finally settled by arbitration in Seoul, Korea in accordance with the Commercial Arbitration Rules of The Korean Commercial Arbitration Board.
The award rendered by the arbitrator(s) shall be final and binding upon both parties concerned. Article 18. Trade Terms and Governing Law
18.1 The Trade Terms under this agreement shall be governed and interpreted under the provisions of Incoterms 2000.
18.2 This Agreement shall be governed by and construed in all respects under and by the United Nations Convention on Contract for International Sale of Goods(CISG) (1980).
18.3 Any questions not covered by the CISG shall be governed by UNIDROIT Principles of International Commercial Contracts(2004).
18.4 In the event of conflict between the United Nations Convention on Contract for International Sale of Goods(1980) and Incoterms 2000, Incoterms 2000 shall prevail and govern.
Article 19. Assignment
19.1 Either party shall not assign this Agreement to any other person without the other parties prior consent in writing. In the event of assignment with the written consent of the other, the one shall not be relieved from its obligations under this Agreement and shall be held responsible for its performance.
Article 20. Non-Waiver
20.1 No claim or right of either party under this Agreement shall be deemed to be waived or renounced in whole or in part unless the waiver or renunciation of such claim or right is acknowledged and confirmed in writing by such party.
Article 21. Notice
21.1 Unless otherwise agreed by the parties, all notices, invoices and communications under this Agreement shall be sent to the parties at their addresses set forth in the initial paragraph of the Agreement. All notices shall be sent by registered airmail and where circumstances require, notices may be sent by cable, facsimile, telex or E-mail which shall be confirmed by registered air mail
Article 22. Entire Agreement
22.1 This Agreement constitutes the entire agreement between the parties, all prior representations having been merged herein, and may not be modified except by a writing signed by a duly authorized representatives of both parties.
Article 23. Effective Date and Term
23.1 This Agreement shall become effective upon signing of the duly authorized representatives of both parties and remain in full force and effect up to [February 28, 2007] unless terminated earlier pursuant to Article 16.
IN WITNESS WHEREOF, the parties hereto have concluded this Agreement as of the day and year first above written.
[ABC CORP] [Samsung CO., LTD]
By : By :
Title : Title :