ARTICLE XXVIII INSURANCE
1. EXTENT OF INSURANCE COVERAGE
From the time of steel cutting of the VESSEL until the same is completed and delivered to the BUYER, the BUILDER shall keep the VESSEL insured with a qualified Chinese insurance company for shipbuilder’s insurance. Such insurance shall cover the damages or losses of the VESSEL’s materials, hull and equipments which incurred by various marine perils, inland perils or the BUILDER’s errors and omissions during the period of construction and trail, as well as any additional costs and liability to a third party including the BUYER’s SUPPLIES.
The amount of such insurance coverage shall be in an amount equal to the amount of the Contract Price, and not less than, the aggregate of the payments made by the BUYER to the BUILDER and the value of the BUYER’s SUPPLIES. Before the delivery of the VESSEL, if the BUILDER and the BUYER adjust the Contract Price in accordance with the Article VI of the Contract, it is the BUILDER’s obligation to adjust the insurance amount accordingly.
All losses under such insurance policy shall be payable to the BUILDER.
The BUYER shall inform the BUILDER of any subsequent changes of the value of the BUYER’s SUPPLIES upon receipt of the notice of such changes of value, the BUILDER is obliged to accordingly change the insured value of the materials and equipment which supplied by the BUYER.
The BUYER is obliged to assist the BUILDER in arranging the aforesaid insurance and providing relevant documents required by the insurance company. The BUILDER is obliged provide the BUYER with the copy of the insurance policy as backup.
2. APPLICATION OF RECOVERED AMOUNT
(1) Partial Loss
In the event the VESSEL shall be damaged by any insured cause whatsoever prior to acceptance and delivery thereof by the BUYER and in the further event that such damage shall not constitute an actual or a constructive total loss of the VESSEL, the BUILDER shall apply the amount recovered under the insurance policy referred to in Paragraph 1 of this Article to the repair of such damage satisfactory to the Classification Society and the Administrative Authority as described in the Specifications. No additional expenses should be collected by the BUILDER and the BUYER shall accept the VESSEL in accordance with this Contract.
(2) Total Loss
In the event that the VESSEL is determined to be an actual or constructive total loss:
(a) By the mutual agreement between the PARTIES hereto, proceed in accordance with terms of the Contract, in which case the amount recovered under said insurance policy shall be applied to the reconstruction and/or repair of the VESSEL’s damages and/or reinstallation of BUYER’s supplies without additional expenses to BUYER, provided the PARTIES hereto shall have first agreed in writing as to such reasonable extension of the delivery date and adjustment of other terms of other terms of this Contract including the Contract Price as may be necessary for the completion of such reconstruction; or
(b) If due to whatever reasons the parties fail to agree on the above, then refund immediately to the BUYER the amount of all installments paid to the BUILDER under this Contract without interest together with recovered amount for BUYER’s SUPPLIES onboard, whereupon this Contract shall be deemed to be canceled and all rights, duties, liabilities and obligations of each of the parties to the other shall terminate forthwith.
Within thirty (30) days after receiving notice of any damage to the VESSEL constituting an actual or a constructive total loss, the BUYER shall notify the BUILDER in writing of its agreement or disagreement under this sub-paragraph. In the event the BUYER fails to so notify the BUILDER, then such failure shall deemed as rescinded and canceled and the BUYER receive the refund as hereinabove provided and this paragraph (b) shall apply.
Concurrently with the refundment to be made by the BUILDER to the BUYER as per the paragraph (b). the Contract is deemed to be terminated. all the right and obligation of one party to another party under the Contract shall be null and invalid, and the guarantees under the Contract shall be returned.
3. TERMINATION OF INSURANCE
The BUILDR’s interest under the insurance policy shall cease and terminate forthwith upon delivery of the VESSSEL.
ARTICLE XXIX PATENTS, TRADEMARKS AND COPYRIGHTS
The machinery and equipment of the VESSEL may bear the patent number, trademarks or trade names of the manufacturers. The BUILDER shall defend and save harmless the BUYER from patent liability of claims of patent infringement of any nature or kind, including costs and expenses for, or on account of any patented or patentable invention made or used in the performance of the Contract and also including cost and expense of litigation, if an. If the BUYER involved into a patent infringement because of the BUILDER, it may lodge claims against the BUILDER for its losses arising therefrom.
Nothing contained herein shall be construed a transferring any patent or trademark rights or copyright in equipment covered by the Contract, and all such rights are hereby expressly reserved to the true and lawful owners thereof. Notwithstanding any provisions contained herein to the contrary, the BUILDER’s obligation under this Article should not be terminated by the passage of any specified period of time.
The BUILDER’s indemnity hereunder does not extend to equipment or parts supplied by the BUYER to the BUILDER if any.
SECTION 6 SUNDRY
ARTICLE XXX NOTICE AND LANGUAGE
1. NOTICE
Any and all notices and communications in connection with the Contract shall be addressed as follows:
P.C.
To the BUYER (the full name of the BUYER)
Address: (the legal address of the BUYER)
Tel No:
Fax No:
Email:
To the SELLER (the full name of the SELLER)
Address: (the legal address of the SELLER)
P.C.
Tel No:
Fax No:
Email:
To the BUILDER: (the full name of the BUILDER)
Address: (the legal address of the BUILDER)
P.C.
Tel No:
Fax No:
Email:
Any notice or communication sent to the BUYER singly from the SELLER or the BUILDER shall be deemed as from the SELLER and the BUILDER together.
Any change in the address shall be communicated in writing by the party adding such change to the other party and in the event of failure to give such notice of change, communications addressed to the other party at their last known address shall be deemed sufficient.
Any and all notices, demands, requests, instructions, advices and communications in connection with the Contract shall be deemed to be given at the time when the same is delivered to the address of the party to be served however, that email and fax shall be deemed to be delivered upon dispatch and receipt.
2. LANGUAGE
Any and all documents as well as notices, communications, specifications and drawings and any other written materials in connection with the Contract shall be written in the Chinese or the English language subject to the situation, each language is legally of equal effect while in case there is any disagreement between the English version and Chinese version, the Chinese one shall prevail. Each party hereto shall have no obligation to translate them into any other language.
ARTICLE XXXI OPTION
The BUYER shall have the right to build the optional vessels, the optional VESSEL should be executed at the same contract price and construction time as the VESSEL Such option must be declared by the BUYER to the BUILDER within the number of months that has been confirmed by the parties following the effective date of the Contract.
The BUILDER also has the right to negotiate with the BUYER on issues of the contract price of the optional vessel the construction time can be properly shortened and the delivery date can be properly put forward.
ARTICLE XXXII EFFECTIVE CONDITIONS AND DATE OF CONTRACT
The Contract shall become effective upon fulfillment of all the following and other mutually agreed conditions:
(1) The Contract and the Specifications have been signed and sealed; and
(2) Receipt by the BUILDER of the first installment in accordance with Article V of this Contract; and
(3) Receipt by the BUILDER of a Letter of Guarantee in the annexed hereto as Annex B issued by a first class international bank of the BUYER acceptable to the SELLER in accordance with Article V hereof; and
(4) Receipt by the BUYER of a Refund Guarantee in the form annexed hereto as Annex A issued by a first class international bank of the SELLER acceptable to the BUYER in accordance with Article V hereof; and
(5) Approval of the boards of the two parties.
Unless other written agreements exist in the Contract, the parties shall be expressly released from their obligations to each other in accordance with this Contract, an instruction should be made to indicate the ineffectiveness of the Contract. Meanwhile, the BUILDER should return the BUYER all its payments which has been paid before plus an interest of the BUYER’s payment at the rate ofpercent ( %) per annum.
ARTICLE XXXIII ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the parties and no promise, warranty or statement prior to the date of the Contract shall affect the Contract. Any modification of the Contract shall not be of any effect unless in writing negotiated and signed by or on behalf of the parties.
ANNEXES
CMAC Standard Newbuilding Contract (
ANNEX A
BUILDER’S IRREVOCABLE LETTER OF REFUND GUARANTEE
To: [insert the full name of the beneficiary]
Date:
To whom it may concern
IRREVOCABLE LETTLE OF GUARANTEE FOR PAYMENT
At the request of a [here insert the name of shipping trade company] and [here insert the name of shipyard or the shipbuilding company] (hereinafter called as “the Seller”), in consideration of you agreeing to pay the Seller the installments before the delivery of the vessel under the building contract concluded by you and Seller dated [ ] (hereinafter called as “the Contract”) for a vessel with construction number [ ] and deadweight [ metric ton] (hereinafter called as “the Vessel”), we hereby guarantee that the Seller will repay to you an amount up to a total of United States Dollars [ ] representing the aggregate amount paid by you to the Seller under the Contract before the delivery of the Vessel, of the first installment of the Contract Price amounted USD [ ], the second installment amounted USD [ ], the third installment amounted USD [ ] and the fourth installment amounted USD [ ]. Should the Seller fails to repay to you such any or all installments due as provided by the articles under the Contract, and you suspend to terminate the Contract due to the extension of the delivery date, we will make such payment to you without interest. In the event that the delivery date is delayed for [ ] days and you terminate the Contract in accordance with the clause 3 of Article 8 or clause 1 (3), 2 (3), 3 (3), or 4 (3) of Article 3 of the Contract, we shall pay to you the aforesaid amount of installments together with interest at the rate of [ ] percent (%) per annum, or [ ] percent (%) per annum in other circumstances. Within thirty (30) running days upon receipt by us from you of a Repayment Demand, we shall pay to you the sun as follows.
However, in the event that is disagreement between you and the Seller on the following issues:
(1) Whether the Seller is liable for the repayment of any or all installments to you, and
(2) Whether you have the right to require us for payment Should the Seller or you submit such dispute before the arbitration in accordance with Article 26 of the Contract or raise an appeal in accordance with the laws of other country, we is entitled to terminate the contract and postpone any payment until the arbitration award between the Seller and the Buyer is published. We shall not be obligated to make such payment unless repayment of the Seller is ordered in the arbitration award and the Seller waives or disclaims appeal in accordance with the laws of other country. Should the Seller fails to enforce the arbitration award, we will pay off the amount ordered by the award (or the judgment), which shall not exceed the amount to be secured by the Letter of Guarantee, plus the interest mentioned above.
All payments under the Letter of Guarantee shall be made in United States Dollars. The Letter of Guarantee comes to effect upon the receipt of the first installment by the Seller from you prior to the delivery under the Contract. The sum available under the Letter of Guarantee shall be in line with the amount which has paid by you prior to the delivery. The amount to be paid under the Letter of Guarantee shall not exceed the aggregate amount of the installments paid by you to the Seller before the delivery of the Vessel, plus the interest at the rate of [ ] percent (%) per annum calculated on the amount of each installment from the date of receipt of the same by the Seller until the date on which the same is repaid under the Letter of Guarantee.
The Letter of Guarantee shall remain in force until (a) due delivery of the Vessel to, and acceptance of the Vessel by, the Buyer, or (b) the payment to you by the Buyer or by us of all sums guaranteed by the Letter of Guarantee, or (c) the [ ] day (the thirtieth day after the delivery date under the Article 14 of the Contract), whichever is earlier. Hereafter, you shall return the Letter of Guarantee to us by airmail for the purpose of revocation, unless:
(1) In the event that the Vessel is under construction, the period of validity of the Letter of Guarantee shall be extended until [ ] day (the [ ] day after the delivery date under the Article 13 of the Contract), or the date of due delivery of the Vessel to and acceptance of the Vessel by the Buyer, if first incurs. Or
(2) In the event that you or the Seller submit before the arbitration authority or the court the matter under the Contract, the period of validity of the Letter of Guarantee will be automatically extended until the thirtieth day after the publication of the arbitration award of the judgment.
The Letter of Guarantee is governed by the laws of the Peoples’ Republic of China.
Yours truly,
[ ] Bank
CMAC Standard Newbuilding Contract (
ANNEX B
BUYER’S IRREVOCABLE LETTER OF GUARANTEE ON THE SECOND, THIRD AND FOURTH INSTALLMENTS
BANK
To: [insert the full name of the beneficiary]
[ ] Shipyard (or Shipbuilding Company)
Date:
To whom it may concern
(1) In consideration of you and [ ] (hereinafter called as “the BUYER”) entering into a sales contract (building contract) dated [ ] for the construction of a VESSEL with hull number [ ] and deadweight ton of [ metric ton] (hereinafter called as “the VESSEL”) we, as the primary obligor and not a guarantor only, hereby irrevocably, absolutely and unconditionally guarantee that the BUYER will punctually pay to you the sum of United States Dollars [ ] representing the aggregate amount of the second, third and fourth installments of the Contract Price as provided by the Section (2) herein.
(2)In accordance with the Contract, the sum to be secured in the Letter of Guarantee includes the second installment of USD [ ], for which the BUYER is liable within three (3) New York Banking Day after the commencement of the construction of the VESSEL, the third installment of USD [ ], for which the BUYER is liable when the first paragraph of the VESSEL is put on the slipway, and the fourth installment of USD [ ], for which the BUYER is liable within three (3) New York Banking Day after launching of the VESSEL.
(3) As the primary obligor and not a guarantor only, we hereby irrevocably, absolutely and unconditionally guarantee that we will punctually pay the interest calculated on the amount of each installment, which the BUYER is obliged to pay, at the rate of [ ] percent (%) per annum from the expiry date of such installment as provided by the Contract until the date on which the same is fully paid.
(4) Should the BUYER fails to punctually pay any installment or interest and such failure is last for fifteen (15) days, we will, upon receipt by us from you of the first written demand for the same, pay to you or to your order the amount of the second, third and fourth installments and relevant interest as provided by Section (3) above, without request to you for a further action, measure or steps on the mortgages holding by you or the SELLER.
(5) The Letter of Guarantee and obligations hereunder shall be freely assignable by you at your own discretion. If assigned, it is guaranteed that any third party consigned by you or the Business Department of the Head Office of Bank of China is your agent. Such third party or Business Department of Head Office of Bank of
(6) Any payment under the Letter of Guarantee shall be made in United States Dollars to [here insert the name of bank] and transfer to your account in the Business Department of the Head Office of Bank of China, with you or your agent as the beneficiary and the receiving bank appointed or temporarily appointed by the SELLER.
(7) Our obligations under the letter of guarantee shall not be affected or impaired by the following factors: any dispute between the BUYER and you, as the SELLER, under the Contract, or delay on delivery or construction of the VESSEL for any reason, change or extension of the period of construction or delivery of the VESSEL, any mortgage or compensations incurs or to incur, any absolution from you or other relevant parties, non-performance or invalidity of the relevant provisions or other factor which may diminish the obligations under the Letter of Guarantee such as any action, omission, facts or conditions.
(8) Any representation or demand in writing made by you shall be signed by one of your duly authorized officers and may be served on us by hand or by post to [ ] (or such other address as we may notify to you in writing), or by authorized communication number with written confirm of Bank of China.
(9) The Letter of Guarantee come to effect upon your receipt and remain in force until (a) due delivery of the VESSEL to, and acceptance of the VESSEL with full performance of his obligation, by the BUYER, or (b) the payment to you by the BUYER or by us of all amount of the second, third and fourth installments and interest, whichever is earlier.
(10) Our liability under the Letter of Obligation shall not exceed the maximum sum of USD [ ], which includes:
(a) The aggregate amount of the second, third and fourth installments to be secured in the Letter of Guarantee, which is USD [ ], and
(b) Interest on the installment for sixty (60) days at the rate of [ ] percent (%) per annum, which is USD [ ].
(11) All payments to be made under the Letter of Guarantee shall be made without any set off or counterclaim and without deduction or withholding for or on account of any taxes, duties or charges whatsoever unless we are compelled by law to deduct or withhold the same in which case we shall make the minimum deduction or withholding permitted and will pay such additional amounts as may be necessary in order that amount received by you after such deduction or withholding shall be equal to the amount which would have been received had no such deduction or withholding been made.
(12) The Letter of Guarantee is to be construed in accordance with the laws of [here insert the name of country]. We hereby submit it to the courts without judicial privileges for any legal action or litigation in the [here insert the name of country].
(13) The Letter of Guarantee will be ended as of the date above. After that, you shall return the Letter of Guarantee without any condition.
(14) In witness whereof, the Letter of Guarantee is effective and submitted by our duly authorized representatives on the date above.
CMAC Standard Newbuilding Contract (
ANNEX C
SPECIFICATION
CMAC Standard Newbuilding Contract (
ANNEX D
GENERAL ARRANGMENT AND MIDSHIP DRAWING
CMAC Standard Newbuilding Contract (
ANNEX E
MAKER’S LIST
CMAC Standard Newbuilding Contract (
ANNEX F
Comprehensive Table for the Contract’s Element
(B-C Standard Shipbuilding Contract Facility Edition)
1.Place and Date of the Contract
2. BUILDER’s name, full style address, and contract details ship trading company (if any) Name: Address: Country: Tel: Fax: Email: BUILDER Name: Address: Country: Tel: Fax: Email: 3. BUYER’s name, full style address, and contract details Name: Address: Country: Tel: Fax: Email:
4. VESSEL description/type
A. Main Dimensions (i) LOA (m) (ii) Length between perpendiculars (m) (iii) Deadweight capacity (DWT) (mts) (iv) Design draft (m) B. cargo capacity (i) Cubic capacity (ii)Rold capacity B2. TEU carrying capacity(state number of containers) (i) Total on deck a.
Main engine (i) Maker/Type (ii) Max. continuous rating (kilowatts at MCR) (iii) RPM at MCR (iv) Specific Fuel Oil Consumption at MCR D. Average speed (i) Service speed (knot)at design draft E. Other matters (optional )
5. BUILDER’s Hull Number 6.
7. Classification Society/Class character 8. Contract Price and Currency (a) Price (b) Currency
9. Contractual Date of Delivery 10. Payments 1st installment 2nd installment 3rd installment 4th installment Final installment
11. BUILDER’s Bank Account Data Name: Address: Country: Phone/Fax: Email: Sort code: Account number: Account name:
12. Adjustment of Contract Price A. Speed (a) Contract Price reduction amount (b) Maximum reduction amount (c) Contract Price addition amount (d) Maximum addition amount B. Deadweight: (a) Contract Price reduction amount (b) Maximum reduction amount (c) Contract Price addition amount (d) Maximum addition amount
C. Cubic (a) Contract Price reduction amount (b) Maximum reduction amount (c) Contract Price addition amount (d) Maximum addition amount D. Fuel Consumption (a) Contract Price reduction amount (b) Maximum reduction amount (c) Contract Price addition amount (d) Maximum addition amount
E. Late or Advanced Delivery compensation (a) Amount per day for delay (b) Maximum reduction amount (c) Amount per day for advanced delivery (d) Maximum addition amount F. Others (optional)
13.Guarantees (a) BUYER’s guarantees (i) Number of days after signing contract (ii) BUYER’s installment/Performance Guarantee (b) BUILDER’s guarantees (i) Numbers of days after signing contract 14. Guarantee Period(state number of months, if left blank 12 months shall apply)
15. Additional Guarantee Period (state number of months) 16. Suspension and Termination (a) Running period (state number of days) (b) Notice period (state number of days)
17. Applicable Law and Dispute Resolution (a) Governing law: (i) Law of P.R.C.,or (ii) Law of other country (b) Institution or place of dispute resolution:(i) CMAC-Shanghai, or (ii) other arbitration institution or place 18. Guarantee Engineer (state total number of months)
19. Effective Date of Contract (state conditions to be satisfied) 20. State number of days within which conditions have to be satisfied
21. Optional additional vessels (state number) 22. Optional additional vessels contract price and delivery dates
23. Declaration of options (state number of months after Effective Date) 24. Interest (state rate of interest)
25. BUYER’s Guarantor (state name of bank or party as appropriate, full style address, and contract details) Name: Address: Country: Phone: Fax: Email: 26. BUILDER’s Guarantor (state name of bank or party as appropriate, full style address, and contract details) Name: Address: Country: Phone: Fax: Email:
27. Number of Annexes 28. Number of Additional Clauses
Signature (BUILDER) Signature (BUYER)
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