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NGUYEN TRONG DAN

11(113 HONG TIMING MAI QUtit TE


Xueit bcin

lein this 6

International Trade Contracts


6th Edition

NHA XUAT BAN LAO DONG HA NOL 2007

Thu' tit g6p

y xin

GS.TS. Nguygn Trong Dan DTDD: 0904 055 077 Email: dhannte,fpt.vn

Tac gi6 gilt bgn quye'n


Copyright by the author

Preface
This book is intended to provide commerce students of international trade and other readers with guidelines to the language of international trade contracts as the name of the book suggests. Despite the difficulty and complexity of the subject matter, the language used in the book is straightforward and readily understood. The book contains 11 parts. The first eights parts deal with legal aspects and give examples of authentic language used to illustrate them. At the end of each part, there are comprehension questions so that the students can check their understanding. In the footnote from Part 1 to Part 8, four or five words and/or expressions are listed with their context meanings in Vietnamese. Part 10 gives examples of authentic contracts from various Vietnamese and foreign trading corporations. All of these contracts are bilingual: English and Vietnamese. Part 11 includes the ICC Model Sale contract and the remarks made on each individual provision in the light of the civil code of the SRVN regarding civil contracts. Although every effort has been made to ensure the reliability of the information in the book, for readers of the book, the author is not responsible for any losses resulting from using this book or specimen contract clauses taken from therein. Before signing a contract, business persons should take appropriate legal advice. As mentioned the subject matter is very difficult and complicated, errors and mistakes might have been made here and there in the book. Constructive suggestions and corrections are, therefore, highly appreciated.

Prof. Dr. Nguyin Trong Dan Hanoi, 2007

Acknowledgements
I would like to express my many thanks for Directing Board of the Foreign Trade University for their help and assistance during the preparation and production of this book. I also would like to express my sincere thanks for my colleagues at the English Department of the Foreign Trade University for their long and kind co-operation in the making of this book. I am deeply indebted to my Australian Collegue, Mr. Timothy Maxwell Clemons for his valuable suggestions, comments, criticism and correction during the development of this book. I am also deeply indebted to all Vietnamese and foreign import and export organizations and commercial services to their assistance and permission for reproduction of their contracts and documents. As always I wish to express my special thanks to my wife and my children for their understanding and encouragement throughout the preparation of this book. I would like to thank Mr. Nguyen Van Chau, BMA, Researcher, at the Foreign Trade University for his deligence shown in proofreading of the book and for all other things that he has done on my behalf so that the book would have been made possible for the first edition. Finally, I also would like to thank all of my friends and former students for their assistance in providing the contracts and their translation.

Prof. Dr. Nguyin Trong Dan

Contents
Page
PREFACE ACKNOWLEDGEMENTS CONTENTS BIBLIOGRAPHY HOW TO WORK WITH THE BOOK 3 4 5 7 9 11
11 11

Part 1

THE RELATIONSHIP BETWEEN THE LAW AND THE CONTRACT


1. 2. 3. 4. 5. 6. BRIEF INTRODUCTION TO THE LAW AND THE CONTRACT THE RELATIONSHIP BETWEEN THE LAW AND THE CONTRACT EUROPEAN (CONTINENTAL) LAW AND ANGLO - AMERICAN LAW THE APPLICABLE LAW SOME SPECIMEN CLAUSES COMPREHENSION QUESTION THE CONTRACT SENTENCE THE LANGUAGE OF ANGLO-AMERICAN CONTRACTS THE CLAUSES PATTERN IN CONTRACT ENGLISH THE PASSIVE FORM COMPREHENSION QUESTIONS

13 17 21 22 25 25 31 33 37 38
43

Part 2

THE LANGUAGE OF CONTRACT IN ENGLISH


1. 2. 3. 4. 5.

Part 3

INTERPRETATION OF THE CONTRACT


1. THE ENTIRE AGREEMENT AND THE CONTRACT DOCUMENTS 2. THE WHEREAS - RECITAL 3. DEFINITIONS 4. SOME SPECIMEN DEFINITIONS 5. COMPREHENSION QUESTIONS

43 45 47 49 50 54 54 55 57 58 61 61 69 72 75 75 76 77 79 80 81

Part 4 THE PARTIES TO A CONTRACT


I.
THE NAMES OF THE PARTIES TO A CONTRACT 2. THE SIGNATURE 3. THE ASSIGNMENT OF RIGHTS AND DUTIES 4. COMPREHENSION QUESTIONS

Part 5 GOODS AND DELIVERY, PRICE AND PAYMENT


I. SCOPE AND DELIVERY 2. PRICE AND PAYMENT 3. COMPREHENSION QUESTIONS

Part 6

THE DEFECT AND THE LIABILITY


I. WARRANTY AND GUARANTEE 2. THE DEFECTS LIABILITY PERIOD 3. REMEDY 4. THE TIMING OF THE DEFECTS LIABILITY PERIOD 5. WHO PAYS FOR CLAIMS UNDER WARRANTY? 6. DEFECTS LIABILITY AND MAINTENANCE

7 - COMPREHENSION QUESTIONS

82 87 87 88 91 93 99 104 104 108 109 109 109 110 110 111 111 114 114 117 122 123 126 129 231 231 241 249 260 273 306 322 334 340 340 354 369 385 385 428

Part 7 BREACH OF CONTRACT I. LIQUIDATED DAMAGES AND PENALTIES


2. 3. 4. 5. LIQUIDATED DAMAGE: PROBLEMS TERMINATION THE LIMITATION OF LIABILITY COMPREHENSION QUESTIONS

Part 8 FORMATION OF CONTRACTS I. SOME LEGAL ASPECTS


2. 3. 4. 5. 6. 7. 8. 9.
1.

THE OFFER THE PURCHASE ORDER ACCEPTANCE OF ORDERS GENERAL CONDITIONS ECE GENERAL CONDITIONS APPLICABILITY GENERAL NOTE ON NEGOTIATION COMPREHENSION QUESTIONS

Part 9 THE INDUSTRIAL PLANT CONSTRUCTION CONTRACT

UNPACKAGING, TENDERING AND NEGOTIATION 2. THE PARTIES 4. THE EMPLOYER'S DUTIES: PRICE AND PAYMENT 5. VARIATION 6. TEST AND INSPECTIONS 7. AN EXAMPLE OF A SUPPLY CONTRACT TO DELIVER AND INSTALL MACHINERY (BILINGUAL)

Part 10 EXAMPLES OF CONTRACT I. CONTRACT FOR RICE


2. CONTRACT FOR LUBRICANTS 3. ABC CORPORATION'S CONTRACT 4. CONTRACT FOR GARMENT PROCESSING 5. CONTRACT FOR DISTRIBUTORSHIP AGENCY 6. JOINT VENTURE CONTRACT 7. SALES AND PURCHASE CONTRACT 1 8. SALES AND PURCHASE CONTRACT 2

Part 11 ICC MODEL CONTRACT FOR THE SALE OF GOODS I. THE ENGLISH VERSION OF THE CONTRACT
2. THE VIETNAMESE VERSION OF THE CONTRACT 3. MODEL CONTRACT FOR THE SALE OF GOODS AND THE CIVIL CODE OF VIETNAM

APPENDIX
- CONG 1.fric VIEN 1980
2 HOP DOING MUA BAN TAI SAN THEO LUAT DAN SVCOA NUOC

CONG HOA XA HOI CHU NGHIA VIET NAM

BIBLIOGRAPHY
Anderson, Ronald A. Business Law. Cincinati: South Western 1980. Black, H. C. Black's Law Dictionary. 5th ed. St Pault: West. 1979. Dy, Nguyen Duc, et al. Tt? di en ngoai thtrong, Ha NOi. 1985. Throng Dai hoc Ngoui

Dy, Nguyen Dile. Tit dien gidi nghia kinh to kinh doanh, NXB Khoa hoc va Ky thuat. 1996. Dam, Nguyen H6ng. Van tdi ngoai thumg. Throng Dai hoc Ngoul thtrang. 1987. Dan, Nguyen Trong. Ngorr ngi? hop dong thu'ung mai Anh My. Sinh hoat khoa hoc trubng Dal. hoc Ngoai thtrong. 1993. Dan, Nguyen Trong. Cau, menh de va ngi? trong hop eking thuzing mai quae re'. Ky y6u HOi nghi Khoa hoc 1c'T ni4rn 30 nam Vien ngOn ngir hoc V* Nam. 1993. Dan, Nguyen Trong. The language of business correspondence in English. NXB Gido duc. Ha NO. 1992. Groner, Sammel B. Modern Business Law. Reston. 1983 Mc (Draw Hill - 1992. Gifis, Steven H. Law Dictionary, Third Ed. New York, 1992. Nguyen Th6 et al. Ter dien Phap luat Anh Viet. NXB KHXH. 1992. Federation Internationale des Ingenieurs (FIDIC): Conditions of Contract 1987
-

International Chamber of Commerce:

+ Force Majeure and Hardship. Paris. ICC. 1984.


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+ Guide to Penalty and Liquidated Damages Clauses. Paris ICC. 1990. + Incoterms - Paris ICC. 2000. + Model forms for Issuing Contract guarantees Paris. ICC - 1992. + Rules of Concilliation and Arbitration. Paris. ICC. 1988. Ma, Nguyen Thi va Thiet, Hoang Van. Phap ly dai cumig. TriOng Dai hoc Ngoai thuong. NOi. 1991 Ma, Nguyen Thi va Hoang Van: Nhil'ng van ngoai thumg. TrtOng Dai hoc Ngoai diming. 1996.

de phap li trong
Prodec.

Pinnels, James. International Procurement Contracts. Helsinki. 1991.

Sanderson, Steve. Ed. Standard Legal Forms and Agreements for Canadian business. Canada 1989. Staple, James G. et al. "Know - how in the united States" in the know - how contract in Germany, Japan and the United States Ed. Herbert Stumpf Deventer: Kluwer. 1984. Tixu, Vu Hiru. Tdchdc ky thugt Ngoai thurnig. Trtthng Dai hoc Ngoai thuang. Ha NOi, 1991. White, James, et al - Uniform Commercial Code. St Paul West. 1980. Trinh, Dinh Xuan. tay thank loan Quo .c Trubng Dai hoc Ngoai thtrong Ha NO. 1991 lugt Dan su' dia nu& Cong hoa xar 110i chi nghig Viet Nam. Vietnam Law & Legal Forum. 1996. Ludt thumig mai cua niffrc COng hoa xd hgi chi nghra Viet Nam. 1996. Legal writings on Foreign Investment in Vietnam. SCCI. 1992. COng uOc Vien 1980

Bo

ye Hop (long mua ban QuCic to Paris. 1980.

HOW TO WORK WITH THE BOOK


This book is, as mentioned, meant to be used, firstly by commerce students at the Hanoi Foreign Trade University and otber business persons. The focus of the book is on both the language and other legal aspects of contracts. Anyone who wishes to use the book effeciently should, first of all, attain a fairly advanced level of English and then have a good understanding of such key subjects as: - Laws applied to international business operations - Foreign Trade Organizations and Techniques - International Payment - Shipping, Transport and Insurance. In order to understand, at the beginning, and be able to apply the contract terms and conditions, the students, readers and users are required to work through the book starting from Part I. The working phases are recommended as follows: Phase 1: - Understanding technical terms - Being able to analyze clause structure - Understanding every single grammatical unit. Phase 2: - Understanding legal and technical aspects as explained in each part - Reading sample provisions

- Reading and understanding short contracts, and then long ones Phase 3: - Translating some simple short contracts into Vietnamese, and comparing them with the ones provided in the book - Drafting short provisions, and then long ones - Drafting a contract - Discussing it with someone who is an authority on the subject matter. In the course of using this book, it should be kept in mind that laws are constantly changing and it is the drafter, not the author of this book, who is responsible for the effectiveness of the drafted contract clauses or the contract itself. It is, therefore, essential and vital that the students, users and readers should have a good command of English and a comprehensive knowledege and experience in international business.

Prof. Dr. NGUYEN TRONG DAN 2007

10

Part 1

THE RELATIONSHIP BETWEEN THE LAW AND THE CONTRACT


1. BRIEF INTRODUCTION TO THE LAW AND THE CONTRACT When negotiators from different countries contract, they create a legal instrument. What is the relationship between this legal instrument and the law of the two countries? Two parties may agree to bind themselves in any way they choose, provided their agreement does not come into conflict with the public law (including the constitution) of their countries or with stringent provisions of the private law. The constitution of a country embodies the generally accepted principles that govern the country. In addition to a constitution, each country has laws. In general, laws establish two kinds of rights and duties: (a) the rights and duties that each citizen owes to and receives from the state, and (b) the rights to and duties that citizens owe each other. The law that regulates the relationship between state and citizen is called public law. Private law regulates the relationship between citizens. The public law of a country controls, for example, taxation, immigration, the formation of companies and similar matters. Criminal law is also public law. The private law looks at the behaviour of citizens (and companies) toward each other. One branch of private law looks at agreements which citizens or companies make with each other - this is the Contract Law. 2. THE RELATIONSHIP BETWEEN THE LAW AND CONTRACT Business is based on agreements or Contracts. During the performance of a contract, the parties may disagree on a particular matter and then the two parties will study their contract and ask what it provides in such a situation. If there is
bind: rang buac criminal law: luat hinh legal instrument: cOng cu phap ly private law: tv phap provided: vdi diau kian la public law: cong phap stringent provisions: nhCing quy dinh nghiem ngat

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no such provision, they must ask what, if anything, the law obliges them to do. This raises the most basic question about contracts. What is the relationship betweenc the contract and the law? Example BEC (British Export Co.) is an English company. It makes an offer to supply the Power Co, (PC) of Vietnam with relays for 2 pounds each. Under the English Contract Law, the English company has the right to cancel its offer at any time before PC accepts it. Although BEC has this right, it may agree with PC not to cancel its offer, say, before Sept. 30. In other words, BEC can, if it wishes, give up or waive one of its rights under the Law of Contract. The waivable rights are said to be disposive. Of course, BEC's waiver applies to the offer it is making to PC only. It keeps its right to cancel offers made to others.
Reinarks

- This example shows exactly the relationship between the contract and the law: a contract sets out the rights and duties that apply between the two parties. A contract sets aside rights and duties that exist under private law (e.g. BEC's right to cancel its offer) and creates new rights and duties (e.g. the duty to deliver goods or the right to payment). - And the public law? The provisions of the public law are never disposive. For example, public law in Vietnam forbids the use of certain plastics in the manufature of insulation for cable. Can BEC agree with PC that this law does not apply to their contracts? Obviously not. Public law is not disposive - the parties to a contract cannot set it aside. - The idea of "law" that we have discussed so far is, of course, the traditional western view. This view stresses that law and morality are close partners: The purpose of law is to provide order, stability and justice. Thus viewed, the law consists of relatively fixed rules which regulate conduct according to the morality of the community. Proper conduct, as determined by the community, should be allowed or required. Improper conduct should be prohibited. Law then is a social institution, it is not an end in itself but is an instrumentality for obtaining social justice (Anderson, 1980 p.17).
contract law: luOt help clong disposive: co the khutc ter oblige: bat buiic waive: khutc tit waivable rights: quyen co the khuUc tir waiver: nguti khutc to quygn cluvc hutng

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- Nothing could be further from the traditional eastern view. In the extract below, the long-standing Korean view of "Law" is presented: The idea that law is an accumulation of collective experience never had an existence in the Korean political tradition. Law was an instrument for chastising the vicious and the depraved. It was sharply distinguished from custom. It always signified a norm with physical force as a sanction behind it. It was therefore synonymous with punishment, no more or less. It is little wonder that the ruling elite considered law beneath its dignity. Indeed, the concept that law applies only to the barbarians or to the ignorant masses and never to the proper Chinese or to the rulers is strongly rooted in Korean thought. When the present- day Koreans try to follow the AngloAmerican example, they have to depart so far from their traditional ways of thinking that one cannot help wondering whether it is feasible, let alone advisable to do so (Pyon-choon 1982 pp. 19 and 30). If we accept this view as typically eastern, then clearly the gap between easterner and westerner is wide. For a westerner, a contract is of the highest significance. It put into words powerful moral forces as they apply to the case in hand. Behind the contract stands a huge body of law and 3,000 years of religious and moral tradition. For the easterner, the contract is a simple agreement without such psychological and philosophical roots. Both sides should be aware of this gap during contract negotiations. It is the source of much misunderstanding.
3. EUROPEAN (CONTINENTAL) LAW AND ANGLO - AMERICAN LAW

"Continental" law The so-called "continental" law prevails in most of continental Europe, in France and Germany for example. This law derives from a code which the Roman Emperor Justinian developed 1,50Q years ago. For this reason, lawyers often call it "Roman law". The Code Napoleon of 1803 developed and updated Justinian's code and influenced many legal systems around the world including those of Japan and most South American countries. The essence of "continental" law is Codification. A clear code expresses what is legal and what is not. The German BGC (Civil code) is an excellent example. The continental
accumulation: tich luy beneath one's dinity: kh6ng xerng vol pha'm cach cua... chastising: trerng trq conduct: qui t6c ung xer depraved: suy doi, sa doe forbid: cam insulation: cach diOn, nhiOt Justice: c6ng ly morality: dao dim norm: tiou chugn, nguyen thc sanction: trirng phat set aside: b6 qua, b6 ra ngoai vicious: xali xa, deic c

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family of law has well developed private law, especially the contract and the commercial branches. "Anglo American" law
-

Unlike Continental law, the Law of England, the United States (and many other English - speaking countries) is not completely codified. The tradition of uncodified law goes back to ancient kings who sat under oak trees and made legal decisions case by case. To achieve fairness, the king decided each case in line with earlier decisions in similar cases, the so-called precedents. For this reason, lawyers often call Anglo - American Law "case law". Today, public law is generally codified, while private law remains largely case law. The case - law system prevails in England, in the United States, and in many ex - colonies of Britain such as Australia. It is important to note that the USA has codified its commercial law - tidying up the chaotic situation in which some fifty states followed often widely different legal practices. The Uniform Commercial Code (UCC) was written between 1941 and 1952. A 1962 revision was adopted by 49 states. A 1972 revision was also widely adapted, although different states and courts interpret the UCC differently, it offers a vital guide to current American thinking. Because England and the United States were predominant in world trade until recently, Anglo - American legal thinking strongly influences international practice. The Anglo - American family has a fully developed private law. In particular, the big trading countries have developed a strong commercial and contract law.
Anglo American and Continental Law: the Differences
-

Anglo - American contract law is largely case - law. Each decision on a new set of facts or on the construction of a previously undisputed law by a judge creates a precedent. This precedent may be binding, if so future judges will follow it. The chart below compares how Continental and the Anglo - American law treat the relationship between a case and the law.

Anglo-American law: luat Anh-M2 case law: luOt an 10 codify: soap thanh luat barbariaus: ke man rq code: bq luOt Continental law: luOt chau Au

oak tree: cay soi precedent: tin la, an la UCC: bQ luOt thu'ang mai th6ng nhat philosophical: trial hoc, triet ly psychological: tam ly elite: tinh nhua, qui ph&

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The Anglo - American and the Continental approaches to law produce different styles of legal argument, and very different contract language. Much of the material in the following chapter explores these differences. Let's take a single example for now: the length and complexity of Anglo - American contracts. You have probably noticed that English and American lawyers draft long contracts in difficult language. Why is it? Perhaps lawyers are paid by the word, and a long contract makes more money than a short one! Although it was true in the past, it is not the heart of the problem at present. In the Anglo - American legal world, as we have seen, nobody knows the result in any given case until the judge reaches a decision. If the parties want to avoid surprises, they must draft a detailed contract covering all future possibilities. This makes contracts long and full of exceptions and conditions. Further, judges must take binding precedents into account when making their decisions. Each case may have dozens (even hundreds) of precedents. 'Contract language has developed over the centuries to "force" the judge to arrive at the same result whatever precedent(s) he or she uses. One example, if a judge once refused damages because the plaintiff had incurred "costs" while the contract spoke only of "expenses". Future contracts will tend to speak of "costs and expenses", and thus avoiding the problem.

approach: phtrang phap tigp can exception: ngoai le incure: phat sinh

plaintiff: nguyOn dan take st into account: tinh den... tend: cO xu fluting.

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CONTINENTAL
Start with a clear legal code

ANGLO-AMERICAN
Start with a case decided on its merits.

When a case occurs, the judge simple applies the code. Sometimes the judge must interpret the code to see how it applies in a particular case

When a similar case occurs, the judge decides the case on its merits and in line with the precedent set by the first case.

Very difficult cases go to a higher court. The higher court interprets the code and decides how it applies in the difficult case.

A huge body of case law develops with many precedents in slightly different cases.

PERHAPS
The legislature passes a statute (= law) that tidies up a complicated situation, or it may pass completely new laws.

Before applying a statute, a court may evaluate its constitutionality . This means that the courts may reject a statute and refuse to apply it, if it is found to be unconstitutional. Judges also have wide powers to interpret statutes; the court must decide what the statute means. "The courrt's interpretation is the law" (Groner, p.8)
constituonality: tinh, khth nang lap hian interpret: then giai legislature: co quan lap phap merits: tinh fiat (cue vu kien) occur: phat sinh, xay ra statute: hanh vi lap phap, luat thanh van

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4. THE APPLICABLE LAW

No contract is complete. When the contract does not answer a question, the answer lies in the applicable law, the law of a particular state or country. In principle the parties are free to choose the law which applies to the contract. What is important in choosing an applicable law? What happens if the parties cannot agree on an applicable law? The parties should agree on the applicable law before drafting a contract. Without a defined applicable law, the parties may write unenforceable provisions. Further, some applicable laws require a more detailed contract than others. If the parties simply cannot agree on a law, then they must write a very long contract. If a contract is a fish, it swims in water. In principle the parties are free to decide which water their fish will swim in. A Chinese - German contract could choose German, Chinese, English, or, to oversimplify a little, any other national law. You often find the Applicable Law clause at the end of a contract. Even so, you should turn to it first before reading the rest of the contract. Some provisions of a contract change their meaning radically under different legal systems. An example of a carefully worded applicable law provision:

This contract, and all questions concerning its formation, validity, interpretation and application shall be governed by the laws of the State of New York Study this wording. It says that the laws of the State of New York govern the contract. That is clear enough. The clause also mentions four questions governed by these laws:

4.1. Formation
Was the contract correctly formed? That depends on the applicable law. But if the contract was not correctly formed, it does not exist, and so there is no applicable law. And if there is no applicable law, it is impossible to decide if the contract is correctly formed or not! This legal knot is easy to untie if the
applicable law: luat ap dung defined: dich danh formation: hinh thanh govern: chi ph6i oversimplify: don gian h6a qua mut unforceable: khOng c6 hieu lut validity: thdi han hiau luc

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parties agree that not only the contract itself but also the question of its formation is subject to the laws of the State of New York.
4.2. Validity

Is the contract valid? If not, the same problem (and the same solution) arise as with Question 1, Formation.
4.3. Interpretation

How is the contract to be interpreted? To understand this point we must distinguish between substantive law and rules of procedure. Substantive law is the law as it applies to the behavior of the parties. What does the law require them to do? Rules of Procedure apply to the court and its way of conducting its business. The rules of interpretation are procedural rules, not substantive laws. This wording makes it clear that both the substantive laws and the rules of interpretation are those of the State of New York.
4.4. Application

How will the parties carry out their duties? What rules apply to the performance of the contract? As with interpretation, a dispute might arise about a substantive law and procedural rules. Again the wording makes the situation absolutely clear. An applicable law clause not only states the law applicable to the contract, it sometimes states what law is not applicable. This clause is from a subcontract for space technology. The main contractor is American; the subcontractor is German.

The contract shall be governed by, subject to, and construed in accordance with the laws of the State of Florida; This Contract shall not include or incorporate the provisions of the "United Nations Convention on Contracts for the International Sale of Goods"

be subject to: re thu'ec vao legal knot: chot phap ly rules for procedure: quy tac ye thu tyc

substantive law: lust flux tai untie: gO cal

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This contract was written at a time when both the United States and Germany were in the process of ratifying the United Nations Convention (the so-called Vienna Sales Convention). The parties wished to exclude its provisions from their agreement. Since the matter is disposive, they had every right to do so. What happens if during negotiations the two parties cannot agree on an applicable law? If a French company, for example, will not accept Chinese law, and its Chinese counterpart will not accept French law? First, the parties could decide on a neutral law, for example, English law, or Swiss law as applied in their respective countries. Second, the parties might agree to the law of one side, but write a very detailed and extensive contract leaving almost nothing for the applicable law to decide. Accepting the law of "the other side" is not particularly dangerous if you research carefully and write a clear, detailed and fair contract. There is a third possibility. If two sides reach no agreement, you sometimes see a provision such as this:

13.1 During the performance of the Contract, any dispute in connection with the Contract shall be settled by both parties through consultation in the spirit of friendliness; If no agreement can be reached after such consultation, the dispute shall be submitted to arbitration

13.2 The arbitration shall be conducted in the Arbitration Institute of the Stockholm Chamber of Commerce, Sweden 13.3 The law applicable to the arbitration shall be neutral and be decided by the arbitration committee

arbitration: trong tai construe: didn clich consultation: hip thtrang convention: cong vac

dispute: tranh chap neutral: trung lap ratify: phO chudn respective: mOi, ttrng, rieng

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Allowing the arbitration committee to decide the applicable law is dangerous. Neither party knows what law to apply to the contract. The results of fairly common actions become unpredictable, and the chances of an expensive dispute increase. The next clause, taken from a contract to supply German equipment to the United States, illustrates a fourth possibility:

This Agreement shall be interpreted in accordance with the laws of the Federal Republic of German. If, however, the German law conflicts with Texas or U.S. federal laws regarding any dispute between the parties, then the parties agree to use their best efforts to negotiate an equitable compromise acceptable to both sides hereto; In the event that such a compromise cannot be reached in a timely manner, then the dispute shall be settled in accordance with the separate "Arbitration Agreement" between the parties

The parties were (apparently) unable to agree on one applicable law, so they named three. The clause foresees trouble, disputes and arbitration ahead because of this awkward arrangement. In the end, the arbitrator will decide what law really applies. A surprising number of international contracts use the weaker options, in effect allowing the court or arbitration to decide the applicable law. How does the court, if required, make its decision? What does it take into account? The ICC Rules of Conciliation and Arbitration 1988, says:

In the absence of any indication by the parties as to the applicable law, the arbitrator shall apply the law designated as the proper law by the rule of conflict which he deems appropriate (Article 13.3)
This doesn't help much: the rules governing conflict of law are a study in themselves, and so, for the parties to the contract, the arbitrator's decision is unpredictable. As a rule of thumb, however, the court usually weighs four factors, whatever conflict - of - law rules it is applying.

awkward: vung ve clause: diet., khoan compromise: nhuvng b6 conflict: xung d6t equitable: cOng bang

foresee: luring trutt ICC Rules of Conciliation and arbitration 1 986: quy Mc h6a giai va trong tai 1988 unpredictable: khOng luring trutc duce

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a. The place of performance of the contract (i.e. the place where most of the work is actually done); b. The place of execution (= signature) of the contract; c. The language of the contract; d. The currency or the weights and measures prescribed. Taken together, these points show the gravity of a contract - it's "natural weight". It practice, the place of performance, is often decisive. In an FOB sales contract, this is the country of the seller. In a construction contract, that of the buyer. 5. SOME SPECIMEN CLAUSES

Applicable law This contract shall in all respects be construed and interpreted in accordance with the law of the People's Republic of Bangladesh including any such Laws passed or made or coming into force during the period of the Contract

Governing Law These General Conditions and the Contract are governed by Italian Law

Applicable Law Regardless of the place of agreement, the place of performance, or otherwise, this agreement and all amendments, modifications, or supplements hereto, shall be construed under, governed by, and the legal relations between the Parties hereto determined in accordance with, the laws of the Republic of the Philippines

conflict - of - law rules: qui pham luat c xung dOt or otherwise: hoac khac di regardless of: bat ke designated: chi dinh rule of thumb: qui tbc thvc nghiem gravity: trong diem specimen: mau

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In each case, the water round the fish is labeled: Bangladeshi law, Italian law the law of the Philippines. Even so, the third formulation is clearly better than the other two: it takes into account most of the legal problems that arise in disputes about the applicable law. IMPORTANT REMINDER: The applicable law governs the disposive provisions (or traditions) of the private law: things that the parties could decide themselves but - for whatever reason - left unregulated. Public law always applies, whatever the parties agree.
6. COMPREHENSION QUESTIONS

6.1. A Tax - Free Contract

BEC, an English company, is selling switchgear for power stations in Vietnam. The parties agree that "English law applies". BEC, however, wants to ensure that it is not liable for tax under Vietnam tax law. Therefore the lawyer drafts this clause:
All income taxes or other tax obligations created as a result of this contract shall be assessed and regulated exclusively according to the English tax law in force at the time of assessment

I. Is BEC now free of Vietnam income taxes? (Choose one answer) q YES q NO - because tax law is public law and the parties cannot set it aside. q NO - because the clause is worded too weakly.

hereto: 1. doi vUi hop clang nay 2. tham gia hop dong nay

ensure: bac, dam

liable for: clip trach nhiOni tax-free: mien thue

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2. Does the clause below create a "tax - free contract" for BEC?
The buyer shall compensate and save harmless the Seller from all taxes assessed against the Seller by the government of the Buyer's country

q YES

q NO

q YES, UNLESS...

6.2. Restatement
The clause below is from a contract for the sale of mining equipment to South Africa: Before and during the execution of the work, the Contractor shall collaborate with the Representative authorized by him to ensure that all work is being carried out in accordance with the requirements of the Mine and Works Act, 1956, the Factories, Machinery and Building Works Act No. 22. of 1941 as amended applicable, as well as all regulations made in pursuance thereof

1. Are the Mine and Works Act, 1956, and the Factories, Machinery and Building Works Act No.22. of 1941 Public law or private law? q PRIVATE q PUBLIC 2. Are "as amended applicable" and "all regulations made in pursuance thereof" public law or private law? q PRIVATE q PUBLIC 3. If the Contractor agrees to this clause, is he taking on any additional duties or giving up any rights that would normally be his?
q YES q NO

4. What do you think the purpose of such lause is?


in pursuance: theo, theo ducli save harmless: mien trach...

act: luat, dao


collaborate: hop tac

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6.3. A Law without a Family

These presents shall be governed by and constructed in accordance with British Common Law

An international bank included this clause in a Performance Guarantee.

Unfortunately: a. There is no "British Law", only English or Scottish Law. (Scottish law is a member of the continental law family.) b. Specifying "Common Law" seems to exclude Equity and Statute Law.
Questions:

If a contract is a fish swimming in water, in what water does this

fish swim? q ENGLISH COMMON LAW q ENGLISH LAW IN GENERAL q SCOTTISH LAW q NO LAW

common law: th6ng phap (luat tuc le va an le) equity law: luet tong bring, c6ng chinh

presents: hop Jong statute law: luet thanh van hay an le

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Part 2

THE LANGUAGE OF CONTRACT IN ENGLISH


1. THE CONTRACT SENTENCE The opening sections of an Anglo- American contracts are often puzzling: it is hard to see how the whereas, the witnesseth, and the rest fit together. Sadly, many international contracts are poorly drafted: the wording is often ungrammatical and sometimes nonsense. What is the key to contract language? Traditional English-language contracts are drafted as a single sentence: the "contract sentence". In principle, all the parts of a contract fit into a single grammatical unit . Lawyers are conservative. Lawyers working in English today may still draft contracts in the ancient style, even though these old forms internationally may be a source of confusion. One tradition is the drafting of contracts as a single sentence. This sentence pattern has three main variations. 1.1. "This Contract Witnesseth..." (Variation 1) The lease on the next page illustrates the most common contract pattern. No matter how long a contract is, it can still follow this one sentence pattern. Let's look at the grammar of the sentence:
THIS LEASE...

This lease is the subject of the contract sentence. Many contracts begin with a similar subject: This Licensing Agreement, This Technical Assistance Agreement, and so on.
BETWEEN...

The. word between introduces the names of the two parties. Each party is usually given a " hereinafter referred to" title: the buyer or the seller; Employer or Contractor or whatever.

conservative: beo thu lease: hop dung cho thud va thud puzzling: rec roi, khO hieu

whereas: xet, vi rang witnesseth: lam bang charg

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THIS LEASE Made the tenth day of August 2000 Between Alan Quartermain hereinafter referred to as " the Landlord" And Elizabeth Jenkins hereinafter referred to as " the Tenant" Witnesseth: That the Landlord hereby leases to the Tenant and the Tenant hereby leases from the Landlord on the conditions attached hereto the apartment known as Apartment 4 on the fifth floor in the building known as 13 Greek Street for the term of three years commencing the first day of September 2000 and ending the thirty-first day of August 2002 at the annual rent of $5,000 payable in equal monthly installments in advance on the first day of each month during the said term In Witness Whereof, Landlord and Tenant have respectively signed and sealed this lease as of the day and year first above written.

WITNESSE TH THAT ..

This is a main verb. "This lease witnesseth that..." simply means "This document is proof that..." (The -eth is an antique ending for the third person singular, present tense.)
WHEREAS... This lease contains no "whereas" clauses. It is commonly understood that a string of whereas clauses at this point gives, if necessary, the background to the agreement. commence: b6t dau contractor cht) than employer: chi.), chi.) dau ttr whereof: vi0c nay 26 hereby: theo hop dung nay hereinafter referred to: sau day goi la ... instalment: Pea dan

...THAT... After the word that comes a string of noun clauses- a list of the agreed rights and duties of the parties. Grammatically, of course, a noun clause looks exactly like a sentence; for example: He said that he loves dogs but his wife prefers horses. The two clauses in italics are noun clauses, they are direct objects of the verb "said". In structure, however, they are exactly like sentences. In the same way, the many "sentences" in a contracts are noun clauses, direct object of the verb "witnesseth". This means, of course, that the periods (full stop) at the end of each provision in the contract are grammatically wrong, but in a long contract they are unavoidable. (This also explains why the provisions of a contract are often called clauses and not sentences). IN WITNESS WHEREOF .... The two parties sign the contract to "witness" it, in other words to "give proof of their agreement". This use of the word witness can cause confusion because, in many documents, the signatures of the parties must themselves be witnessed. In this case, however, the signature of the "witness" simply confirms that the signature of the party is genuine. 1.2. "Know All Men ..." (Variation 2) This variation occurs in short document as Bid Bonds, less often in contracts. The document below is a transfer of ownership for a new car. Again the contract is a single sentence.

a string of: mot loaf bid bond: bao dam dot than italic: in nghiOng

unavoidable: kh6ng the tranh duw variation: bien cach

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Know all Men by These Presents


That The Albert Motor Company, the Seller, whose address is 3 Dry Boulevard, Alton, New Hampshire, for and in consideration of the sum of $ 17,000 paid by Joe Ditherspoon, the Buyer, whose address is 1983 Long Lane, Alton, New Hampshire, has bargained, sold, granted and conveyed; and by these presents does bargain, sell, grant and convey unto the Buyer, the Buyer's successors (heirs, executors, administrator) one Ford Mustang Model 2002 Factory No Ap 23840984762HX543 Motor No 72LK753 assigns forever the same unto the Buyer and Buyer's successors (heirs, executors, administrators) In Witness Whereof; the Seller has set his hand and seal or caused these presents to be signed by its proper corporate officers and caused its proper corporate seal to be hereto affixed, on the eleventh day of October 20...

KNOW ALL MEN ...

This means "All men (people) are informed ..." know is main verb of the contract sentence : it is in the command (imperative) form.
BY THESE PRESENTS ...

These presents means "these clauses present before you" or simply "this contract".
THAT...

The rest of the contract is a list of noun clauses containing the information that "all men should know." As with Variation 1, any number of "whereas" clauses can follow the word "That".

bargain and sell: ban by these presents: bai hop clang nay for and in consideration of: nhan

grant and convey: chuyen In witness whereof: de lam bang chirng cho vi0c nay know all men: moi ngtrai duVc thOng bao (biet)

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"K' THE SELLER ...

The name of the seller is introduced


FOR AND IN CONSIDERATION OF...

The price is named


"Y" THE BUYER...

The name of the Buyer is introduced.


... HAS BARGAINED, SOLD...

The seller has sold ... Then the goods are named
IN WITNESS WHEREOF...

The formula is the same as for Variation 1. (The seal in the case of a Transfer of Ownership like this is important; since only one party signs the document, the seal makes it legally binding.)

1.3. "The Parties Hereby Agree That..."'


The agreement on the next page is a standard form for selling a second-hand car in the United States. It contains a heading that is not integrated into the contract sentence, and then a double wording. The rights and duties of each party exactly balance, resulting in two mirror-image sentences. This form is fairly common in short agreements or in a "one-page" contract to which many contract documents are annexed.
ARTICLES OF AGREEMENT

The name of the agreement is, in this case, simply a title outside the grammatical structure of the contract sentence.
BETWEEN...

The word between introduces the name of the two parties. This contract illustrates a common but old-fashioned usage. The first name is said to be "of the first part" and the second name "of the second part" and "the party of the second part".

annex: kem, lam thanh phy lyc integrate: gQp, nha't the

transfer of ownership: chuyen quyen so) hit

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Articles of the Agreement


Between Aland K. Whitbread, who resides at 12 Dogweed Lane New York , NY of the first part And Elizabeth Dwell, who resides at 3 Catskill Drive New York, NY of the second part. The party of the first part in consideration of nine thousand dollars ($9,000) covenants and agrees to sell to the party of the second part a 2003 black Ford automobile including the transfer to the party of the second part of the Certificate of the Title and any other documents necessary to effectuate a complete transfer of title from the party of the first part to the party of the second part The party of the second part, in consideration of the complete transfer of title of the 2003 black Ford automobile from the party of the first part to the party of the second part convenants and agrees to tender payment of nine thousand dollars ($9,000) to the party of the first part in the form of cash with payment due on the date of delivery of the said automobile In Witness Whereof, the parties hereunto have set their hands and seals the seventh day January in the year two thousand and three.

THE PARTY OF THE FIRST PART CONVENANTS AND AGREES...

This contract sets out the rights and duties of the first party in one sentence, and the rights and duties of the second party in a second sentence. In both cases, consideration is mentioned.
IN WITNESS WHEREOF...

The formula is the same as for Variation 1.


convenant and agree: dungy effectuate: thut hiOn old-pashioned usage: cach dung da cif to tender payment: thanh toan

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2. THE LANGUAGE OF ANGLO-AMERICAN CONTRACTS

The Anglo-American contract often seems lengthy, complicated and repetitious. A negotiator may try to simplify the English wording. But this is sometimes dangerous. Anglo-American contract law is mostly case law, so lawyers draft contracts with cases (precedents) in mind. If a judge in the past based a decision on the precise wording of a contract, later contracts may try to avoid or embrace the implications of that decision. Further, to compensate for the absence of a codified law, lawyers try to cover all eventualities in the contract itself. The result is "contract English" - a language with rules of its own.

The contractor shall be under no liability whatsoever by way of indemnity or otherwise for or in respect of destruction of or damage to the Works or to the Temporary works or any property whether of Government or third parties or for or in respect of injury or loss of life which is the consequency, whether direct or indirect, of the outbreak of war (whether war is declared or not) in which the country shall be actively engaged, invasion of the country, act of foreign enemies, rebellion, revolution or military or usurped power in the country, civil war, or otherwise than amongst the contractor's own employees or the employees of any subcontractor or a contractor executing any specialist works, riot, commotion or disorder, (hereinafter comprehensively refereed to as "the said special risks") and the government shall indemnity and save harmless the contractor against and from the same and against and from all claims, demands, proceedings and damages, costs, charges, and expenses whatsoever arising therefrom or in connection therewith and shall compensate for contractor for any loss damage to the property of the contractor used or intended to be used for the purpose of the works, and occasioned either directly or indirectly by the said special risks

codified law: luat thanh van embrace: bao gom eventualities: tinh huOng co the xay ra

lengthy: dai thing repetitious: lap, trung lap 31

Anglo-American law is largely case-law: each decision by a judge may create a precedent. If this precedent is binding, future judges always follow it. The Anglo-American drafter knows this and writes the contract to avoid the problems created by binding precedents in the past. Study. for example, the language of the contract provision above. It is Clause 114 of the Conditions of Contract of the Public Works Department of a country in East Asia within the Anglo-American law family. This clause uses the word or many times. In each case the drafter has a particular problem in mind. Let's take three examples: Example 1 The clause mentions "the outbreak of war". This seems clear enough, but the drafter adds "whether war is declared or not" Why? The reference is probably to the war in Vietnam. Officially the United States calls this a Conflict, not a War, since war was not declared. During the 1970s, contracts that excluded liability for problems caused by "war" ran into legal problem, and so drafters adopted the habit of adding "whether war is declared or not". Example 2 The drafter writes of "property... used for the purposes of the Works." The wording here perhaps reflects a judgment in particular case where the judge distinguished between property "used for the purposes of the Works" and property delivered to the site but not yet in use. The drafter covers both possibilities. Example 3 One phrase here is typical of Anglo-American drafting: "all claims, demands, proceedings, damages, costs, charges and expenses whatsoever". The drafter is probably making no difference between claim, proceeding and demand or between costs and charges and expenses. He used this list of terms for safety's sake: whatever the situation, the contract covers it. This need for safety reflects a major principle of case law: it is impossible to know the result until the case

foreign enemies: ke thei ngoai bang all claims, demands, proceedings damages: tat ca thief hai all costs, charges and expenses: tat c chi phi revolution: cach mang in respect of: ve, co lien quan d6n indemnify: b6i thutng

military or usurped power: th6 luc quen su va ciao chinh rebellion: not loan riot: bao d6ng, not loan

commotion: huyen rick


therefrom: of nhCing rut ro dOc biet nay therewith: c6 lion quan d6n nhimg rui ro da:c bet nay

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has been decided. So, don't simplify the language of an Anglo-American contract until a lawyer has studied it carefully. A case in point: Courts in the United State have trouble with know-how contracts. Is know-how the same things as trade secrets? And do both mean the same as confidential information? The position is unclear. Accordingly we find in a lawbook this recommendation: The following conclusion can be drawn from an analysis of the terminology used by the courts: (a) the cases are not reconcilable if it is assumed that the different phrases (know-how, trade secrets, confidential information) are intended to define dissimilar legal concepts; (b) the contract drafter who wishes to cover as many future contingencies as possible should use an alternative expression [= an expression containing alternatives] on the theory that subjects matter which might elude one label will surely be covered by another. Thus an alternative phrase such as "confidential information, Know-how, and/or trade secrets" should cover most contingencies. The alternative "and/or" provides the projected enforcer with maximum flexibility in selecting that specific characterization of the misused property which appears best suited to the facts and the law of the forum (Staples and Bertagnoly, p.264). Two points emerge here: First, case-law leads to considerable confusion about the meanings of words; it is often necessary to use several words rather than one to ensure that the true meaning is covered. Secondly, using several words rather than one gives the lawyer great flexibility if the contract becomes the subject of a court case.
3. THE CLAUSES PATTERN IN CONTRACT ENGLISH

Long sentences quickly become confusing in English. Especially in the international arena, the drafter must know, and work within, the limits of basic English clause structure when combining ideas into longer sentences. Four basic patterns of combination are effective in English. Without making it into a religion, many drafters try to limit themselves to these patterns, especially if English is not the first language of either party.

confidential information: th6ng tin bi mat contingencies: cac tru'ang hgp bgt nga distinguish: Oen bat know-how: bi guy& alternative: co thg they the creolize: hinh thanh ng6n ngir ti? 3 ter hai ngOn ngt`r ban deu emerge: not len

reconcilable: co thg h6a giai trade secret: bi mat nhe nghe blurred: nhat elude: khuygt

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English is a mix of French (from the Norman conquerors of 1066) and AngloSaxon (the German dialect of the invaders who filled the vacuum left by the Roman withdrawal from England). When languages combine (or creolize), two results are common: - An oversize vocabulary with blurred distinctions of meaning; - A simplified grammatical structure with usage and idiom replacing "logical" rules. Both results occurred in the case of English. Because English grammar is thin on rules and rich in "illogical" usage, it is difficult to express complex, logical relationships among ideas. As a basis for expression, try to work with the four basic clause structures that underlie most well written contract provisions. Structure 1: Main Clause Plus Main Clause Two sentences (main clauses) joined by and (or a similar conjunction) - this is the most frequently used structure in the English language. Because most languages freely use and, but, or between main clauses, this construction presents no problems internationally.

MAIN CLAUSE
Example:

MAIN CLAUSE

The stipulated prices are fixed, and they are to be understood delivered and paid to the place of destination

The headings and marginal notes in these General Conditions shall not be deemed part of this Contract, and they shall not be taken into consideration in the interpretation thereof Structure 2: Main Clause Plus One Subordinate Clause The simplest relationship between two ideas is to make one into a main clause and the other into an explanatory or subordinate clause. These simple sentences are sometimes enough to express quite elaborate contract provisions.

conjunction: lien to delivered paid to the place of destination: ctrac van 6i a tra den nai den

marginal notes: ghi chO ben le subordinate: menh de phy thin on rules: lOng go ye qui tec

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MAIN CLAUSE
Example:

SUBORDINATE CLAUSE

The Employer has the right to terminate this contract if construction work is not carried out in accordance with local by-laws

You can also begin with the subordinate clause, especially when using the ifclause; the addition of the word then makes the relationship particularly clear.

SUBORDINATE CLAUSE

MAIN CLAUSE

If the construction work is not carried out in accordance with the local bylaw, then the employer has the right to terminate this contract

Structure 3: The Chain: Main clause plus more than one subordinate clause In contracts, a string of conditions is often attached to a main provision. Then you must "chain" the clause:

MAIN CLAUSE

SUBORDINATE CLAUSE (TYPE A)

SUBORDINATE CLAUSE (TYPE A)

SUBORDINATE CLAUSE (TYPE A)

by-law : cac van ban chid lua't

if - clause : menh de bet deu bang "if" terminate : ket thuc

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Naturally, the main clause can also come after the daisy-chain. You should repeat the conjunction, for example, if, at the start of each clause. A ood example occurs in these Terms for. Deliveries Abroad: The delivery time has been adhered to if the consignment is ready for dispatch ex works within the agreed period and if notice to this effect is sent to the purchaser This structure is common in whereas-recitals: "whereas ... whereas..., whereas..., and whereas..." Structure 4: Main clause between subordinate clauses Where a sentence contain clauses of several types (let's say an if-clause and a because-clause), you should place these clauses on either side of the main clause: SUBORDINATE CLAUSE (TYPE A)

MAIN CLAUSE

SUBORDINATE CLAUSE (TYPE B)

Example:*

Where the contract provides for deliveries in lots or installments, penalties for late delivery shall be calculated on the basis of the value of each lot or installment, provided that the late delivery does not impede the general performance of the contract

adhere to : tuan thu consignment : chuyen hang ex - work : tai )(clang : ngan can, can tret at one's discretion : dua vao su suy )(et caa ai dO
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muddle : Ion x6n notice to this effect th6ng bao ye va'n de nay penalties : phat provided that : mien la, vdi dieu kin la arbitrator : trong tai

4. THE PASSIVE FORM .

Contract English is rich in passive verbs. Unluckily for lawyers, modern English is moving away from the passive. Further, many languages have no passive; their speakers have no "feel" for this form. Avoid using passive verbs where active verbs convey your meaning clearly. Passive verbs test out badly, especially in instructions. Readers respond slowly and less accurately when instructions use passives. For example:
Passive

For the watch to be set, both the command button and the recessed set button must be used. If the set button is to be depressed, use should be made of a small object such as paper clip. Damage could be incurred by the watch if a large object is employed.
Active

When you set your watch, you'll have to use both the command-button and the recessed set-button. Use something small, a paper clip for example, to depress the set-button. If you use something bigger, you could damage your watch. The passive is sometimes dangerous if you assign a duty but fail to say who must perform it. Just compfare the following Examples : A monthly progress report should be The Contractor should send a sent to the Employer at his registered monthly progress report to the Employer at his registered office office Or Payment is required on or before 13th of each month The Licensee shall pay the Licensor on or before 13th of each month

The problem is acute with oriental languages which often have no passive form. A Chinese-speaker, for example, may miss the difference between:

defective : cO khigrn khuyet loophole : ke ha c6 the trenh ne dtrac purity : dq tinh khigt, thugn chgt

assign : giao (vigc) inaccurately : khOng chinh xec paper clip : kep gigy

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The Licensee's personnel were given training (Passive) and The Licensee's personnel were giving training (Active) Where possible, therefore, try to avoid the passive.
5. COMPREHENSION QUESTIONS

5.1. Study the form of the contract sentence in this Memorandum of Understanding. How would you reword the document so that it makes sense grammatically? Omit "witnesseth" or omit "expresses" an understanding and add that after witnesseth.

Memorandum of Understanding
This Memorandum of Understanding expresses an understanding between the Moran Corporation (hereinafter called "Moran") and The Ministry of Public Works of the Republic of Verbena (hereinafter called "the Ministry") regarding development of a photovoltaic system of power generation for use in the Republic of Verbena
Witnesseth:

Whereas Moran and the Ministry have cooperated on the development of a prototype system Now therefore the parties hereto agree as follows:

licensee : ngtrai thus licensor : ngud cho thus memorandum of understanding : biOn ban ghi nha

prototype : nguyen mau registered : da clang ky

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1. Moran and the Ministry shall cooperate in producing a plan for the installation of a pilot project plant at a site to be designated by the Ministry [Further provisions] In Witness Whereof the parties hereto have caused this Memorandum to be this day executed in Verbena City

5.2.
1. Study this extract from a warranty for advanced electronic equipment:

Any defects or faults detected or occurring must be notified by the Buyer to the Seller within 30 days of the defect or fault being detected or occurring

a. Can a clear distinction be made between faults and defects in a warranty? No q Yes q b. If no, why do you think the drafter used both terms? c. Can a fault be detected unless it has occurred? No Yes q
q

If no, why do you think the drafter used both terms? 2. Study this extract from a contract for electrical parts in a shipbuilding project: d. All components used in the manufacture of the Goods shall be new and unused and not of an age which would impair their operation; Reconditioned or refurbished components shall not be used

components : linh kien execute : thut hien, ky ket

pilot project plant : nha may thut nghiOm cua du an impair : lam ton thuttng den

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a. Is there a clear distinction between the terms new, unused, and not of an age which would impair their performance? Yes q No q b. If no, why do you think the drafter used all three terms ? same as C : c. Is there a clear distinction between reconditioned and refurbished parts?. Yes q d. If no, terms? No q

why do you think the drafter used both

e. The second sentence seems to repeat the idea expressed in the first sentence. Is there really one idea or two here? One q Two q f. Is one, why do you think the drafter decided to use two sentences?
3.

a. Rephrase these sentences in the active form: Corrections to drawings shall be discussed (Passive Verb) and agreed (Passive Verb) by such members of the Consortium as are thereby affected (Passive Verb)

b. A unanimous decision is required (Passive Verb) on all technical questions by which members of the Consortium are affected (Passive Verb), and, as far as single members are concerned (Passive Verb), their express written approval is required (Passive Verb)
consortium : c6ng xo6c xiom, tap doan rephrase : viet lai cho r6 nghia

unanimous : nhat tri

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5.4. In the two cases below, the sentences need restructuring If delivery occurs late, and in the event that such late delivery causes idle time on the site, should such idle time exceed one shift, the Supplier shall be liable for liquidated damages in the sum of $1,200 per shift lost

If the Licensee becomes aware of any trade-mark infringements in the territory, so that the Licensor may take appropriate legal action, the Licensee shall notify him immediately

aware of : bigt infringement : vi /Mani liquidated damage : mot ton thgt dtrac xac doh

shift : ca territory : lanh th6

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S.S. Rewrite the following confused sentence

If any claim is raised by the Purchaser against a member in respect of any matter concerning the Purchase contract for claim another Member, if or Member (s) is (are) responsible whether the claim is attributable to his (their) share(s) of supply or to a failure by him (them) to carry out his (their) obligations under the Purchase contract in a timely and correct manner or to any other reason, then the responsible Member(s) shall immediately save harmless from all obligations the Member held liable by the Purchaser

An explanation of the test may help you there. Briefly this is the situation. A group of three suppliers (a consortium) is selling to a Purchaser. Each member of the consortium has his own "scope of supply". If the Purchaser has a claim against the consortium, he can bring it against any member; the members are said to be "jointly and severally liable". Among themselves, however, the members make an agreement. If the Purchase makes a claim against the "wrong guy", then, of course, the "wrong guy" will have to pay, but the guilty party will compensate the "wrong guy" in full. (As a purchaser, you may sometimes deal with consortium agreements. It is common practice for the employer to have the right to see the relevant consortium contract of his contractors).

guilty party: ben co 16i to be held liable: chtu trech nhiem jointly and severally liable: cung chung trech nhiem be responsible: chw trach nhiem scope of supply: pham vi cung cgp, d6i ttrang cua hop dong

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Part 3

INTERPRETATION OF THE CONTRACT


1. THE ENTIRE AGREEMENT AND THE CONTRACT DOCUMENTS

Anglo - American contracts often list "contract documents ". Why? And what problems does this list may cause? If the contract is the entire agreement, then outside documents are normally excluded from the contract. Some contracts, however, include documents by naming them specifically. This creates a problem if the included documents contradict each other. For this reason, the drafter must rank documents in order of priority. Anglo - American law takes the contract as the entire agreement. In other words, nothing outside the contract unless it is specifically referred to and included as part of the agreement. In international practice, parties often wish to "incorporate" (= include) outside materials into the contract such as: general conditions, special conditions, subcontracts, the Incoterms of the International Chamber of Commerce, and so on. To do this, the contract names such materials as Contract Documents. For example:

Contract and Contract Documents

"Contract" means this Purchase Agreement itself, and all applicable General Conditions of Purchase, Special Conditions of Purchase, specifications, the Statement of Works, and manufacturing drawings

contract documents: tai lieu hop deng contradict: mat./ thu6n entire agreement: hap clang Ong the in order of priority: theo trot tiOn.

interpretation: din giei statement of work:: thuyet minh ye nha may unless: trii phi (lieu khOng)

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All contract documents and the clauses of this contract shall be read, if possible, so as to be consistent. In the event of conflict, the order of precedence for the provisions and documents which constitute this agreement is as follows: I. Any alterations typed on the face of the printed Purchase Agreement 2. The printed text of the purchase agreement itself 3. Specifications 4. Statement of Works 5. Manufacturing Drawings 6. The Buyer's Special Conditions of Purchase 7. The Buyer's General Conditions of Purchase

This clause is well drafted. It lists specific documents that are parts of the contract (Don't worry if you don't know what all these documents are!), and it accepts that with so many documents, contradictions are likely. To resolve contradictions, it gives an order of precedence, or "seniority" among the documents. The higher its place on the list, the greater the authority a document has.

Some specimen clauses


This clause from a shipbuilding contract incorporates the Incoterms into the contract and establishes the precedence between the contract and the Incoterms.

"Incoterms 2000" means Incoterms 2000, the international rules for the

interpretation of its terms, published by the International Chamber of Commerce. When a terms from Incoterms 2000 is used in the Contract, the rules and definitions applicable to that term in Contract except insofar as they may conflict with any other provisions of the Contract, in which case the provisions of the Contract prevail

alteration: thay ddi In the event of: neil c6 precedence: sv &Mg trtrdc insofar as: MI mut

prevail: thong, dirdc xem xet truft tiOn seniority: sv o trOn specimen: mk

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In Section (e), the following clause from a procurement contract for a power station allows the purchaser to regulate priority. The supplier is likely to be unhappy about that. The term Contract Documents shall mean and include the following which shall be deemed to form an integral part of the contract: a. Invitation to Bid, Instructions to Bidders, Contract Agreement, General Conditions of Contract, and Special Conditions of Contract b. Specifications of the equipment/ goods to be supplied and erected under the contract as detailed in the accompanying Technical Specifications c. Supplier's bid proposal including the letters of clarification thereto between the supplier and the Purchaser prior to the Award of Contract d. All the materials, literature, data and information of any sort given by the supplier along with his bid, subject to the approval of the Purchaser e. In the event of any conflict between the above mentioned documents, the matter shall be referred to the Purchaser whose decision shall be final
2. THE WHEREAS
-

RECITAL

Most Anglo - American contracts begin with a "whereas - recital" Why? What should the "whereas - recital" include and exclude? A contract states the rights and duties of the parties. It does not discuss the motivation of the parties, the business situation, or other important background information. Without such information, however, the judge cannot always interpret the contract correctly. The Parol Evidence Rule forbids the Anglo award of contract: tuyen b6 trung theu bid: On dv than final: cu6i ding Parol Evidence Rule: qui rac khi chifp nhan phan khau chimg doi vUi nhfing dieu khoan da thoa thuan cua hop dung motivation: Bong cc parol evidence: khdu chum procurement: mua sa'm integral part: bo: phan hop thanh whereas - recital: lief Ice cac can cu de hai ben ki hdp clang.

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American judge to use background materials not expressly named as contract documents. Accordingly the parties include matters of fact, expectation and so on in the form of a whereas-recital. Traditionally the Anglo - American contract is an "entire agreement". Unfortunately, however, the text of a contract does not answer many important questions: Why did the parties sign the contract? What circumstances make the deal attractive? How long have the parties known each other? What future business do they hope for? If a contract runs into trouble, the judge/ arbitrator asks such questions in order to interpret the contract. Often the parties give different answers. To prevent this uncertainty, lawyers write the answers to these background questions into the contract. How? Through the whereas recital. Contracts often begin after "witnesseth that":

This Procurement Contract between The Styropak Company of Nanamia: and Verbena Packaging LTD of Verbena
Witnesseth that

WHEREAS the parties have for many years successfully traded together AND WHERWEAS Styropak has recently developed biodegradable Styrofoam packaging

After this opening come the rights and duties agreed by the parties. The word whereas means because or considering that. In other words, whereas - clauses are not provisions, promises or conditions - they are explanations. file above example is a typical whereas - recital. If you look at it quickly, you'll see that it contains two types of background information. Such information is useful to an
biodegradable: c6 the phan hu3, ye met sinh hoc circumstance: trutng hop deal: vu (thu'ong), viec buon ben expectation: mong mu6n styrofoam: xcip ti-r6

46

Anglo - American judge/arbitrator if the contract runs into trouble. In a contract written under a Continental Law, a recital (or preamble") is useful: it prevents misunderstanding. In an Anglo - American contract that contains an Entire Agreement clause, a recital is essential. Continental lawyers often avoid the complicated grammar of the whereas - clause. They prefer simple sentences under the heading Preamble. The legal result is, of course, exactly the same. The body of the contract records the rights and duties of the parties; the recital states their motivations, their goals, and other background information.
3. DEFINITIONS

Continental law - makers include a precise definition of many important terms in the law itself Because Anglo - American law is based on cases, it offers many conflicting definitions. This leads to uncertainty, how will the judge interpret a particular term if the contract gets into trouble? The Anglo American drafter must overcome this uncertainty. But how? Anglo - American contracts often begin by listing definitions. The list defines problem terms. It records special meanings that the parties have agreed. In principle, definitions belong to "up front" in a clause of their own. Let's begin with an example: BEC is negotiating a contract in India. The parties agree that BEC's technical advisers shall have "holidays" free. To BEC, Christmas and Easter are holidays. To the Indian company, they are not. To avoid the problem, the lawyer must draft a definition of holidays. In this contract "holidays" shall mean all legal holidays in the State of Kerala, and, in addition, 24 and 25 December, Good Friday, Easter, Saturday, and Easter Sunday In international contracts, both continental and Anglo - American lawyers are careful to include such definitions. Some words always cause trouble unless drafters carefully define them. For instance, the Conditions of contract published in 1987 by the Federation Internationale des Ingeniurs Conseils (FIDIC) for Electrical and Mechanical
preamble: phan mo dau assignee: nguti &Ito chuyen nhutng Easter: 0 phuc sinh Easter Saturday: Thu bay Le phuc sinh Easter Sunday: Chu nhat Le phuc sinh up front: phan deu Good Ftiday:thir turtle Phyc Sinh, tha 6 tuan Thanh incorporate: gam, g6p letter of acceptance: thtr chip nhan tre

47

Works begins with thirty - seven definitions. Some examples: "Contractor" means the person whose tender has been accepted by the Employer and the legal successors in title to the Contractor but not "except with the consent of the Employer" any assignee of the Contractor

"Contract" means the agreement between the Employer and the Contractor for the execution of the works incorporating the Conditions, Specification, Employer's Drawings and Contractor's Drawings, Price and completed Schedules, Tender, Letter of Acceptance and such further documents as may be expressly incorporated by the Letter of Acceptance

"Foreign Currency" means a currency of a country other than that in which the Plant is to be installed

"Plant" means machinery, apparatus, materials and all things to be provided under the Contract for incorporation in the works A definition, as you see, performs two different tasks:
Task 1. Choosing a Meaning

If a word has several meanings, a definition pinpoints the agreed meaning. The FIDIC definition of foreign currency does this. (The word foreign changes its meaning according to the nationality of the writer, so a single, agreed meaning is essential).
Task 2. Assigning a Meaning

If the parties attach a special meaning to a term - if they go beyond its normal dictionary meaning - then the definition explains this special meaning. The FIDIC definitions of contractor and contract work in this way. (No dictionary defines contract as "the agreement between the Employer and the Contractor for the execution of the Works, etc"). This is a special meaning agreed by the parties) 48

Any defined term is usually capitalized throughout the text of the contract, either the whole word or simply the first letter is printed in capital letters. This alerts the reader to the special definition. As a general principle: every term that the parties discuss in detail during the negotiation is defined under Definitions at the start of the contract.
4. SOME SPECIMEN DEFINITIONS

The most common wording at the start of the definitions section is like this:

1. Definitions In this contract, the following terms shall be interpreted as indicated: 1.1. "The Contract" means the agreement entered into The wording below is more careful: 1. Interpretations The following interpretations of terms shall apply except where the context otherwise indicates: 1.1. "Acceptance" means the issue of a Quality Assurance and Acceptance Certificate by the Contractor subject to... The purpose of writing "except where the context otherwise indicates" is to avoid a common problem: the use of a defined word in a different context. For example, some contracts define the word works:

f. "Works" means all plant to be provided and work to be done by the Contractor under the Contract

alert: bao dQng capitalize: vi6t hoa

enter into: giao pinpoint: khu bi6t, chi doh

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If the contract somewhere speaks of "Delivery ex works", then clearly the defined meaning of works cannot apply. The drafter avoids this problem with the words "except where the context otherwise indicates". A full definition often includes more than direct, formal definition. Sometimes it adds examples or a "negative definition": a statement of what the term does not mean. The definition below uses both examples and a negative definition.

1.12. "TECHNICAL DATA" shall mean any information directly related to the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification or reconstruction of the MP2 system, associated equipment or spare parts Such data includes, for example, information in the form of blueprints, drawings, photographs, plans, instructions, computer software and documentation It does not include information containing general scientific, mathematical or engineering principles

Formal Definition

Examples

Negative Definition

5. COMPREHENSION QUESTIONS 5.1. The One - Page Contract

Look closely at Clause 2 of the following contract form. Does it conform with what we have said in this section? If not, how does it differ?

delivery ex-work: giao hang tai xcrang where the context otherwise indicates: khi ngOn canh bleu it)i khac di ancilliary: phu, kern theo be desirous: mong mu6n

negative definition: JO nghia phu dinh overhaul: kiem tra de clai to remedy: sera china their respective laws: Itiat rieng cue ho

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CONTRACT FORM
This agreement is made on the sixth day of May, 20..... between [NAME OF PURCHASER] of [MAILING ADDRESS OF PURCHASER] (hereinafter "the Purchaser") of the one part and [NAME OF SUPPLIER] of [MAILING ADDRESS OF SUPPLIER] (hereinafter "the Supplier") of the other part. Whereas the purchaser is desirous, the goods and ancilliary services listed in the Price Schedules and described in the Technical Specifications should be provided by the Supplier and has accepted a bid by the Supplier for the provision of those goods services in the sum of [CONTRACT PRICE IN WORDS AND FIGURES] (hereinafter "the Contract Price"). Now this agreement witnesseth as follows: 1. In this Agreement, words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract referred to; 2. The following documents shall be deemed to form and be read and construed as part of this agreement, viz.: a) The Bid-Form and Price Schedules; b) The Schedule of Requirements; c) The Technical Specifications; d) The General Conditions of Contract; and e) The Special Conditions of Contract; 3. In consideration of the payments to be made by the purchaser to the Supplier as hereinafter mentioned, the Supplier hereby covenants with the purchaser to provide the goods and services and to remedy defects therein in conformity in all respects with the provisions of the Contract; 4. The Purchaser hereby convenants to pay the Supplier in consideration of the goods and services and the remedying of defects herein, the contract price or other sums as may become payable under the provisions of the Contract at the times and in the manner prescribed in the Contract. IN WITNESS whereof the parties hereto have caused this contract to be executed in accordance with their respective laws the day and the year first above written.

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5.2. In 20..., Verbena Storage bought from Northern Chipboard technology for making warehouse shelves from chipboard planks. For a period of five years, Verbena Storage agreed to purchase the board directly from Northern. Unfortunately, in tropical humidity, the boards bend under the weight of stored components. Verbena Storage asks for help, Northern refuses. Verbena Storage re-reads the contract. The relevant clause says :

Northern warrants the suitability of the chipboard for the manufacture of storage shelves without defects under normal conditions. This warranty does not apply in the event of incorrect use of the Chipboard. Further, the warranty is void if shelves are used under improper conditions

Northern says tropical heat and humidity are not "normal conditions" and installing shelves in tropical warehouses is "improper use". Verbena Storage disagrees. Obviously the words normal and improper need interpretation. The recital helps here:

WHEREAS the Northern Chipboard Company has worldwide expertise in the manufacture of chipboard for all types of storage. AND WHEREAS the Chipboard has been successfully used in all parts of the world for the manufacture of storage shelves...

1. Underline the words in the recital that help Verbena Storage. 2. Northern and Verbena Storage interpret normal and improper differently. Which interpretation is supported by the recital?

5.3. Verbena Fan makes electric power fans for industrial applications. Verbena Fan buys technology and hi-tech parts from BEC. A clause in the contract says:

bend: cong humidity: de) dm void: khOng cb gia tr!

warrant: bao dam warranty: bao hanh

52

Modifications to Technical Data For a period of five years after the coming into force of the contract, the Supplier shall inform the Receiver of all modifications to technical data without delay, and supply copies of modified technical data as necessary

The maintenance manual for the fans uses many photographs to help repairmen who speak little English. Four years after the contract comes into force, the maintenance manual is revised. BEC sends Verbena Fan the text of the new manual but not the new photographs. When Verbena Fan asks for the photographs, BEC says that the photographs are not "technical data" but merely an aid to repairmen. 1. IF the contract contains no definition of technical data, who is probably right? q VERBENA FAN q BEC 2. If the contract contains the definition below, who is probably right?

"TECHNICAL DATA" means any information directly related to the design, engineering, production, operation, repair, or maintenance of the FANS. Such data include, but are not limited to, information in the form of blueprints, drawings, illustrations, photographs, instructions, computer software and its documentation

q VERBENA FAN

q BEC

computer software: phen mem may tinh

manual: sach twang din without delay: ngay, khOng cham tre

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Part 4

THE PARTIES TO A CONTRACT


1. THE NAMES OF THE PARTIES TO A CONTRACT

International companies often have subsidiaries with similar names. This can create confusion. Worse, it allows a deliberate "dirty trick" on the part of an international company. What is this trick, and how can you prevent it? It is essential to discover the exact name of the company with whom you sign a contract. If you notice a difference between the name on the contract and the name on the company's letterhead, start asking questions: you may be dealing with an undercapitalized subsidiary. On the first page of most contracts is the name of each party. When it first appears, the name is normally the full, registered name of the company. Often a few words of description follow, perhaps the state of registration or the place of the company's head office. Some companies have complex names, for example, The Smith, Jones, Wrangel and Ironside Supply Company Inc. To avoid repeating this formula during the contract, a short - form follows the first use of the name. The short form may be a specific name: The Smith, Jones, Wrangel and Ironside Supply Company Inc., a corporation organized and existing under the laws of the State of Delaware, USA, having offices in San Francisco, California, hereinafter called "SMITH"
Or a generic description:

The Verbena Docklands Procurement Company, a corporation organized and existing under the laws of the Republic of Verbena having offices in Port Mary, Verbena hereinafter called "BUYER"
dirty trick: tro bgn thiu hereinafter: sau day subsidiary: cling ty con undercapitalized: kh6ng du vdn

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The use of short - forms saves space and reduces the risk of mistyping. If a name appears in different forms in a contract, there can be legal problems. Many contracts capitalize the short - form throughout the contract; this tells readers that a short - form is used.
2. THE SIGNATURE

The formulas used to sign contracts are sometimes antiquated and hard to understand. Although serious mistakes are unlikely, it helps to understand the meaning behind the formulas. In the Anglo - American tradition, the parties sign the contract to "witness" it, that is, to prove that they reached this agreement. Anglo - American contracts and it is always the case with Vietnamese contracts, are sometimes "sealed", i.e., a company seal is fixed to the contract. a company seal is fixed to the contract. The use of the seal sometimes changes the way that the law applies to the contract. Sometimes the signatures of the parties are themselves "witnessed". This means that a third party states that the signature is genuine. Under the Uniform Commercial Code (UCC), a "signature" is anything that a party uses to authenticate the agreement. The traditional formula at the end of a simple agreement says: In Witness Whereof, We have this 16 th day of March 2000 made and signed this Agreement

In Anglo - American contracts, the formula sometimes includes mention of a seal: In Witness Whereof, The parties hereto have set their hands and seals this 16 th day of March 2000

antiquated: co to authenticate: chimg thut

generic description: m6 6' dac tinh chung mistyping: danh may sai

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The seal was once a large disk of red wax with an impression on it. Mostly today seal is replaced by the two letters L.S. (Latin Locus sigilli = the place of the seal). What is the significance of the seal? Ever less. Under some laws within the Anglo - American family, some ancient rules still apply, for example: - An offer under seal is not revocable; The Statute of Limitations is longer on a sealed contract. (This means the right to raise a legal action running for a longer time); A contract under seal requires no consideration. The UCC has radically changed the rules in the United States: Seals inoperative 2.203. The affixing of a seal to a writing evidencing a contract for sale or an offer to buy or sell goods does not constitute the writing, a sealed instrument and the law with respect to sealed instruments does not apply to such a contract or offer. In plain language, a seal on an offer or a procurement contract has no major significance. You may see an even longer formula on some contracts: Signed, Sealed and Delivered... The meanings of Signed and Sealed are clear - but what is Delivered ? "Delivered" means physically giving the signed and sealed contract to the other person. The usage comes from the law of sealed instruments. Until a contract under seal has been physically given - delivered - to the other person, it is not valid. Sometimes when the parties sign a contract, the signatures are "witnessed" (the genuineness of the signature is confirmed) by a third party - a marriage contract is the classic case. In commercial contracts, the applicable law decides about the witnessing of signatures. Consult your lawyer for the appropriate formula. In the Anglo - American world, simpler formulas are gaining favour. For example: THE PARTIES, INTENDING TO BE LEGALLY BOUND, have executed this agreement as of the date first set forth above seal: con clau, (big dau 56

statute of limitation: 144 thai hle'u

Naturally international contracts written in English but under a Continental Law also favour shorter, clearer formulas.
3. THE ASSIGNMENT OF RIGHTS AND DUTIES

A contract that allows assignment (= sale, gift, etc.) of rights and duties is dangerous. It allows the parties to pass on their duties to third parties, perhaps to subsidiaries or even total outsiders. Most applicable laws allow assignment of rights but not of duties. Normally, do not accept a contract that allows assignment of duties. A clause expressly forbidding all assignment without the agreement of both parties is often useful. Sometimes a contract contains a clause like this:
Assignment

Neither the rights and duties under this contract nor the contract itself may be assigned by either party, either in whole or in part, without the prior written approval of the other party Assignment is a general word for transfer. Sale is a kind of assignment, as are gift and exchange. Unless the parties agree otherwise, most legal systems allow the assignment of rights but forbid the assignment of duties. In general, this is fair. The assignment of a right (the right to collect payment, for example) hurts no one. The assignment of a duty (for example, the duty to carry out research and development into a new process) can change a contract completely. In principle, try to forbid assignment without the consent of both parties.
Some specimen clauses

The clause below is a standard provision in tender documents; it simply restates the normal legal position. The supplier shall not assign, in whole or in part, its obligation to perform under the Contract, except with the purchaser's prior written consent The clause below carefully includes both positive and negative wording. Special provision is made for assignment on bankruptcy.
assignment: chuyen nhuvng consult: tham Mao positive and negative wording: viet theo 16i kh ng dinh va phu dmh inure: thich nghi, Ong ph6 law of sealed instrument: luat van ben duvic d6ng dau trustee: Om h6

57

This agreement on any rights or duties hereunder may not be assigned or otherwise transferred by either party and shall not inure to the benefit of any trustee in bankruptcy, receiver or other successor to either party, whether by operation of the law or otherwise, without the written consent of the other party; And any assignment or transfer by either party without such written consent of the other party shall be null and void
4. COMPREHENSION QUESTIONS

Negative Wording Positive Wording

4,

4.1. An opening like this is not unusual in international contracts:

This Contract
is entered into as of the 7 th day of March 20... by and between The HURD COMMUNICATIONS CORPORATION a Delaware corporation, with offices at 4848 Main Street, Cardiff, California (hereinafter called HCC or BUYER) and the VERBENA PARTS PROCUREMENT COMPANY with facilities at 10 Francis Street, Verbena City (hereinafter called VERBENA PARTS or SELLER). 1. What is the meaning of the expression "a Delaware corporation"? 2. If you had received letters from Hurd under the letterhead Hurd Communication Inc., what action would you take? 3. In this contract, each company has two names (HCC or BUYER, and CERBENA PARTS or SELLER). What is the reason for this double wording?

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4.2. The UCC contains three main provisions on signatures:

A contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker

"Signed" includes any symbol executed or adopted by a party with present intention to authenticate a writing

Authentication may be printed, stamped or written. It may be by initials or thumbprint. It may be on any part of the document, and in appropriate cases, be found in a billhead or letterhead. No catalog of possible authentications can be complete and the court must use common sense and commercial experience in passing on these matters. The question is always whether the symbol was executed by the party with the present intention to authenticate the writing

In the eyes of the UCC, which of the following are properly authenticated agreements? 1. A contract bearing two authorized signatures q NO q UNCLEAR q YES 2. An unsigned Confirmation of Order on company stationery q NO q UNCLEAR q YES 3. An agreement "signed" with an X q YES q UNCLEAR q NO 59

4. An agreement bearing the initials of one of the parties and the note "Still needs a couple of changes" q NO q YES q UNCLEAR 5. The same agreement as in 4, but without the note q NO q YES q UNCLEAR 6. A tape recording of one of the parties saying "I agree to the whole text exactly as it stands" q NO q YES q UNCLEAR

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Part 5

GOODS AND DELIVERY, PRICE AND PAYMENT


The first question about a contract concern the exchange: "What am I giving?" and "What am I getting?". This part studies the underlying "deal": what will the seller deliver, how and when; what will the buyer pay, how and when. In more formal terms, Scope and Delivery, Price and Payment.
1. SCOPE AND DELIVERY

A scope clause explains (often in outline only) what the seller must supply. The delivery clause establishes how delivery is to be made, what counts as delivery, the delivery date, and what counts as delay. It regulates the passage of risk and title, and it states the consequences of non-excusable delay. The scope provisions in a contract take so many forms and are so technical that a full discussion is well beyond our present purposes. In fact, contracts often recognize this fact: the scope clause can be very short, referring the reader to technical specifications else where. For example:

Performance of the Contract and Technical Requirement The requirements of the Contract and any amendments thereto shall be performed in accordance with the Order issued by the Supplier to the Purchaser The Supplier is required to deliver an Item or Items which meet the requirements of the Specification shown in the Order in all respects

non-excusable: kh6ng the tha 1110' chtdc order: Lenh, chi th!

scope: pham vi, d6i tucing ale hp (king

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or
Scope of Services

The Contractor agrees to carry out a feasibility study according to the Statement of Work (SoW) (Annex 2) prepared on the basic of the Ministry Requirement (MR) (Annex 1) This separation of obligations and specifications is valuable source of clarity: the manager or risk analyst gains an overview of the contract without drowning in technical detail.
Step 1. How will Delivery be made?

In a simple sales contract, a key provision explains how the seller will make delivery. For example: For the equipment listed in Annex 1 the price is for delivery free on board the carrying vessel designated by the Buyer at the port of Hai Phong including expenses for the stowing and packing, as well as expenses incurred before loading the equipment on board the carrying vessel The ways in which a seller delivers goods are few and standard. For this reason, contracts often use a standard term: the Incoterms are best known. The 13 Incoterms have clearly established meanings; the ICC lays down exactly the duties of the buyer and the seller for each term. The 13 terms are grouped in four categories: E-term, F-terms, C-terms and D-terms.

clarity: sang saa drown: chim, ch6t du6i stowing: san x6p

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Group

Term

Term in full

When Delivery made

E- Term F- Terms

EXW FCA FAS FOB

Ex Works Free Carrier Free Alongside Ship Free on Board Cost and Freight Cost Insurance and Freight Carriage Paid To Carriage and Insurance Paid Delivered at Frontier Delivered ex Ship Delivered ex Quay

When goods are available at the factory When goods are handed over to the carrier When goods are alongside the ship When goods pass the ship's rail When goods pass the ship's rail When goods pass the ship's rail When goods are handed over to the carrier When goods are handed over to the carrier When goods are cleared for export at a named frontier When goods arrive on the ship at the port of destination When goods are on the Quay at the port of destination and cleared for import When goods are available to the buyer at a named destination, duty unpaid When goods are available to the buyer at a named destination, duty paid

C- Terms

CFR CIF CPT CIP

D- Terms

DAF DES DEQ

DDU

Delivered Duty Unpaid

DDP

Delivered Duty Paid

carriage paid to: cutc tra tOi delivered at frontier: giao tai bran gidi delivered ex ship: giao tai tau delivered ex quay: giao tai cat.' cang delivered duty unpaid: giao tai dich chtra nqp thu6

delivered duty paid: giao tai dich da Op thud ex works: giao tai xveing free carrier: giao cho nguti van tai free alongside ship: giao doc man tau free on board: giao lOn tau

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Using the Incoterm FOB, the complicated delivery clause above reads: The equipment listed in Annex 1 shall be delivered FOB Hai Phong (Incoterms 1990)

Step 2. What if the Goods are ready but Delivery is Impossible? FOB delivery takes place when the goods cross the ship's rail. Payment is usually tied to delivery. What happens, though, if the ship is late? The goods are ready, but the seller, through no fault of his own, cannot deliver. The careful seller makes a special provision to cover this problem:

If the vessel named by the buyer fails to arrive on or before the agreed delivery date, then the seller may at his discretion deliver the goods to a bonded warehouse in the port of Hai Phong, and shall be deemed to have fulfilled its delivery obligations under this contract This is only one example. If the parties foresee any kind of problem, they, should regulate it in the contract. Step 3. What is the Date of Delivery? Normally a delivery date is clearly fixed - but there can be problems. "Delivery shall be made on or before 11 April 20..." looks clear, but is delivery at thirty seconds past midnight on 12 April also timely? In most cases, probably it is. In some situations, however, exact timing is essential, for example `just in time" delivery of components to a modern production line. In such cases, lawyers say that "time is of the essence". Some contracts have time is of the essence stamped on them to make the point clear. Buyers often add a clause like the one below to a procurement contract:

at one's discretion: dkra vao sir suy xot be tied to: On yen bonded warehouse: kho ngoai quan ship's rail: Ian can tau 64

Time is, and shall remain, of the essence of this agreement, and no acts of the Buyer, including without limitation to, modification of this order or acceptance of late deliveries, shall constitute waiver of this provision The Seller shall immediately notify the Buyer of any actual or potential event, including in particular any labor dispute, which is delaying or threatens to delay the timely performance of this agreement

Step 4. When do Risk and Title Pass?

Risk means legal responsibility for goods; title means ownership of goods. In theory at least, the two problems are entirely separate. First then, assuming the use of Incoterms, let's look at risk.
Transfer of Risk

The risk for loss of or damage to the goods... passes from the seller to the buyer when the seller has fulfilled his obligation to deliver the goods (Incoterms 1990, p.117.) That is the general principle: risk passes not with physical delivery, but when the seller has fulfilled his obligations to deliver. This can be earlier than physical delivery if the buyer "does not take delivery as agreed or fails to give such instruction... as the seller may require in order to fulfill his obligation to deliver the goods "(p.117). At what point, then, does risk normally pass? The chart below shows the point for each of the Incoterms. It's important to note that risk passes for the three most common terms (FOB, CFR, and CIF) at the ship's rail.

assuming: gia SCI, cho rang physical delivery: giao hang mang tinh vat chat risk: rui ro title: sa hitu

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E- Term

EXW

When goods are at the disposal of the buyer at the place of manufacture When goods are given to the carrier Alongside the vessel at port of loading At the ship's rail at port of loading At the ship's rail at port of loading At the ship's rail at port of loading When goods are given to the carrier When goods are given to the carrier When goods are at the disposal of the buyer at the place of delivery (frontier) When goods are at the disposal of the buyer at the place of delivery (ship at destination) When goods are at the disposal of the buyer at the place of delivery (quay at destination) When goods are at the disposa of the buyer at the place of destination When goods are at the disposal of the buyer at the place of destination

F- Terms

FCA FAS FOB

C- Terms

CFR CIF CPT CIP

D- Terms

DAF

DES

DEQ

DDU

DDP

Transfer of Title
The problem of title ownership) is more complicated. An example: an aircraft engine is ordered from England by a French shipping company on behalf of a Nepalese buyer who wants to take delivery in Bangladesh. Half the price is paid in advance. The ship stops in Portugal where its cargo is impounded by a court order issued in Germany for a debt contracted by the ship-owner in Norway. Who owns the engine? Heaven knows!
impounded: ttch thu

66

Many sellers want to retain ownership of their goods until the buyer has paid for them. Problems in retaining ownership arise when goods are partly paid for, when the buyer goes bankrupt and has many creditors, and in many other situations. What are the ground- rule? In 1989, the ICC published Retention of Title: A Practical Guide to 19 National Legislations. As the name of this book suggests, this question is still a matter of national rather than international practice. Step 5. What Delay is Excusable? A seller who agrees to deliver on a particular date must accept that late delivery will be "punished" in some way. Accordingly sellers try to add provisions to a contract that soften the delivery date, while buyers resist such softening. You have probably met two softeners: (a) the grace period and (b) the force majeure provision. Grace Period The grace period is usually expressed at the beginning of the clause dealing with the consequences of delay:

If delivery is not effected within two weeks of the agreed delivery date for reasons other than Force Majeure, then the seller shall pay... In other words, problems begin only when delivery is two weeks late. The effect of this two-week grace period is not quite the same as a delivery date two weeks later, the seller has an early good-faith target to meet: the buyer can exert a great deal of moral pressure before the mechanism of the "penalty" takes over. Even so, grace periods are not common.

Force Majeure The force majeure provision is normal practice. The seller says: "I'll do my part, but if something happens that is beyond my control, you can't expect me to pay a "penalty"

excusable: co the tha tht? duvc grace period: an han ground-rules: quy thc can ban good faith: thin chi, tinh ngay that

national legislations: quyen lap phap cOa cac quOc gia retention of the title: quyen so him retain: gill' duvc

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Force Majeure

If either party is prevented from, or delayed in performing any obligation under this contract by reason of a force majeure event, then this party is not considered to be in default and no remedy, be it under this contract or otherwise, is available to the other party Force majeure events include, but are not limited to: wars, riots, insurrections, acts of sabotage, or similar occurrences; strikes, lockouts, or other labor unrest; newly introduced laws or government regulations; fire, explosion, or other unavoidable accident; flood, storm, earthquake, or other abnormal natural events Some items on the list are controversial: strikes and lockouts, for example. Since the term "force majeure" is not a traditional Anglo- American term and has no generally accepted definition, international contracts often agree a list of force majeure events. The ICC has developed an alternative strategy. It has drafted a detailed comprehensive force majeure provision of nine clauses. In summary: 1. The principle of force majeure: some events are simply beyond the control of the parties; 2. A list of such events; 3. A list of events that are not force majeure events; 4. The duty to notify the other party of the event; 5. The time at which the duty to perform is suspended; 6. What duties are suspended; 7. How long the suspension may continue; 8. The right of termination after a certain time; 9. Financial settlement if the contract is terminated. Few contracts contain such detailed and valuable stipulation. If force majeure is likely to be a problem in your own contracts, you should study the ICC provision in detail. If you like it, you can incorporate the provision into the
by reason of: vi default: CO 161 force majeure: bat kha khang

68

contract by using the reference clause. For example: The Force Majeure (Exemption) clause of the International Chamber of Commerce (ICC Publication No 421) is hereby incorporated in this contract Close to the issue of force majeure is the issue of hardship - frustration and impossibility. This subject is discussed as part of the legal framework of the contract. Step 6. What are the consequences of Non- Excusable Delay? The consequences of a failure to perform any of the major duties under the contract - in particular delivery, payment and making good of defects - are much the same: the party at fault can pay money, or the party not at fault can end the contract. This is a complicated issue involving at least three major contract provisions. Accordingly you will find a full - length discussion of consequences in the following parts.
2. PRICE AND PAYMENT

Payment follows much the same pattern as delivery: how payment must be made; what counts as payment; when payment is due; what counts as delay; and the consequences of delay. Deciding the right price for goods and services is a commercial problem, not a legal one; lawyers are more interested in payment. Construction contracts, however, involve complex pricing strategies. Payment is often a simple enough procedure, but unfortunately payment provisions in many contracts lack important detail, for example, this clause was part of an international contract: The price payable for the equipment specified in Annex 3 is USD500,000 (five hundred thousand US dollars); The full contract price is payable within thirty days of receipt of invoice
suspend: glen doer?, treo suspension: su glen doan terminate: k6t thOc termination: stf Vet thuc the party at fault: ben c6 loi

frustration: kh6ng the thur hien duvc (hqp dOng) frustration and impossibility: kh6ng the trait hien duvc (hqp dOng) make good: 1)0 dap reference clause: dieu khan tham khao, hOi chi

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If payment is delayed in such a case, the seller is unsure of his rights, and the buyer does not know what claims can be made against him - a dangerous situation for both sides. Careful drafting of a price and payment clause follows five steps: Step 1. How will payment be made? Trade within a country is based on a mixture of trust and the close proximity of courts of law. International business is not so blessed: Trust is rare, and the courts are far away and unpredictable. Payment is, therefore, tightly controlled. The most common type of payment is the confirmed, irrevocable letter of credit. Typically a contract stipulates:

The Buyer, on receipt of the Confirmation of Order from the Seller, shall at least 20 days prior to the date of delivery open a confirmed, irrevocable letter of credit with a first class international bank; 20% of credit shall be available against the Seller's draft accompanied by invoice; the remaining 80% shall be available against the Seller's draft accompwlied by the shipping documents If the buyer is to pay by normal "inland" means s'ich as a check or bank transfer, then a bank guarantee or a stand-by letter of credit removes the seller's risk - and these instruments are cheaper for the buyer. The seller usually wants to specify the currency of payment. Step 2. What counts as Payment? When Ali Aziz instructs his bank in sunny Verbena to pay BEC in rainy Europe, he begins a chain of events that often takes months to complete. Perhaps the National Bank of Verbena has no funds to make foreign transfers; perhaps inefficiency delays payment. Of course, the Letter of Credit avoids such problems, but payment against invoice is still common and buyers must prefer to pay in this way. To avoid the dangers of late payment, sellers try to protect themselves with a clause like this: Payment shall be deemed to have been made only when the contract sum is paid into the Seller's bank account and is at the Seller's full disposal

confirmed irrevocable letter of credit: tin dung thtr khong the h6y ngang durfc xac nhan due: den han thank toan proximity: svgan, la can

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Step 3. What is the Date of Payment? The date of payment for a single sale is simply regulated, in an ongoing contract - a construction contract, a patent licence or a spare parts supply contract, for example - the parties must agree a chain of dates. These are either calendar dates (for example, 30 th June) or interval times (for example, within 30 days of the date of invoice). When work is carried out over a long period, the parties agree an elaborate system of stage payments (often called "milestone payment"). Step 4. What Delay is Excusable? As with delivery, delay in payment might be excused during a grace period, though this is very unusual. More commonly, a force majeure event excuses delay. (One wording of a force majeure provision was given in the previous section). In fact, the force majeure excuse for delay seldom makes sense in the context of payment; most sellers try to resist it. Step 5. What are the Consequences of Non Excusable Delay?
-

The cost of late payment is easily assessed: the buyer must pay interest on the outstanding sum. Typically, the rate of interest is geared to interest rates in the seller's country. The Federation Internationale des Ingenieurs - Conseils (FIDIC) suggest in the 1987 version of their Conditions of Contract for Electrical and Mechanical Works the following provision:

Delayed Payment 33.6 If payment of any sum payable... is delayed, the Contractor shall be entitled to receive interest on the amount unpaid during the period of delay. Unless otherwise stated in Part II the interest shall be at an annual rate three percentage points above the discount rate of the central bank in the Contractor's country; The Contractor shall be entitled to such payment without formal notice and without prejudice to any other right or remedy

at one's disposal: do ai d6 doh doat draft: ho'i phi6u


stand-by letter of credit: tin dung thy dt..v phOng at annual rate: theo 4%10 thuting nien

elaborate: chi tiet h6a gear: dik chinh theo... make sense: c6 nghia outstanding sum: khoan tien chua tra without prejudice: khOng bat) In (trach nhi0m)

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An earlier version of these Conditions was, arguable, more favorable to the buyer: ...the Contractor shall be entitled... to receive interest calculated at the rate or rates which the Contractor's bank, named in the Appendix to the Tender, would have charged the Contractor to borrow the amount of the delayed payment during the period of delay The principle is clear: the seller is entitled to compensation for losses due to late payment.
3. COMPREHENSION QUESTIONS

3.1. The clause below is typical of the terms dictated by a strong seller to a weak buyer Delay in Delivery

1. Dates of delivery are the date of despatch ex the supplying works 2. The delivery dates apply only on condition that all details of the Order are promptly and completely clarified and any domestic and foreign certificates required are promptly submitted 3. In the event of the Seller being unable to despatch the goods in due time for reasons beyond the Seller's control, the delivery dates shall be deemed complied with upon the Seller notifying the Buyer that the goods are ready for despatch 1. Clause 2 mentions four things the buyer must do in order to make the seller keep the delivery dates. What are these four things? a
c d

2. Of these four things, how many are objective conditions? In other words, is it possible for both sides, or an outsider, to agree on the exact meaning of the words? q 0 q 1 q2 q 3 q 4 conditions is fully objective.

Appendix to the tender: phy lyc cue clan *that.' Beyond the seller's control: yuvt qua sy* khcing ch6 cua nguti ban

72

3. Delivery is fixed as "the date of despatch ex the supplying works." Is this the same thing as the Incoterm EXW? q YES q NO

4. Clause 3 specifies reasons for delay "beyond the Seller's control". Who decides what is "beyond the Seller's control"? q BUYER q SELLER q NOT REGULATED

3.2. Study the payment provision below, and then answer the questions. 1. All payments made by the Buyer to the Seller shall be denominated and made in Deutsche Mark and effected by telegraphic transfer by the Buyer's bank to the Seller's bank; The Buyer shall bear all the costs of making the payment 2. With the Coming Into Force of the contract, the Buyer shall furnish the Seller with an unconditional bank guarantee issued by a first class bank for fifteen percent of the contract sum. The guarantee shall conform with the specimen guarantee in Annex G 3. Within twenty days of receiving the Seller's shipping advice, the Buyer shall open with a first class bank an Irrevocable Letter of Credit in favor of the Seller and valid for one year. The Letter of Credit shall be for seventy - five percent of the contract sum and shall conform with the specimen letter of credit in Annex H 4. The full contract price shall be paid in the following stages: v Fifteen percent shall be paid within thirty days of the Buyer receiving a photocopy of the Export License issued by the Seller's government v Seventy- five percent shall be paid within thirty days of the Buyer's bank receiving a complete set of shipping documents as listed in Annex F

v Ten percent shall be paid within thirty days of the delivery of the goods DDP

furnish: cung cap bank guarantee: bao lenh ngan hang

telegraphic transfer: On h6i DDP: (delivery duty paid): giao tai dich da nQp thu6

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1. Is the way in which the Buyer is to make payments completely clear in this clause? q YES q NO

2. Is it completely clear what counts as payment? (Is it action by the buyer, by the buyer's bank, or receipt by the seller?) q YES q NO

3. Is it completely clear when payment must be made? q YES q NO

4. Is any part of the payment "insecure" (not guarantee)? q YES q NO

5. If "yes", does it matter? Is more security needed? q YES q NO

6. The contract says this about force majeure and nothing more.

The Seller shall not be responsible for delay in the shipment of the Goods due to the occurrence of any Force Majeure event. In case the occurrence lasts more than ten weeks, the Buyer shall have the right to cancel the contract.

It is clear whether late payment is, under certain circumstances, excusable? q YES q NO

7. Are the consequences of non- excusable delay clear? q YES q NO

8. If "no", is this omission important in this case? q YES q SOMEWHAT q NO

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Part 6

THE DEFECT AND THE LIABILITY


1. WARRANTY AND GUARANTEE A guarantee is a promise about somebody else's performance. A warranty is a promise about your own. When businessmen speak of the "seller's guarantee" or "warranty" they mean the seller's liability for defects. To avoid confusion, many drafters today use the term Defects Liability Provision. A warranty is a promise you make about your own performance. The word is used in several contexts. A warranty of title, for example, is a promise to a buyer that the seller really owns the goods he is selling. A product warranty is a promise by the seller to make good any defects in his products. And there are two parties to warranty: the buyer and the seller A guarantee, on the other hand, involves three parties. The guarantor makes a promise to one party on behalf of another Internationally, the distinction between warranty and guarantee is not so clear. First, businessmen loosely use the two words as though they mean the same thing. This is confusing. Others believe that a warranty covers materials and workmanship, while a guarantee covers specifications. This is a mistaken idea. Does it matter? In fact, yes. Confusion between warranty and guarantee could be dangerous. Let's say a contract is written in English, but German law applies. German law makes a clear distinction between a "warranty" (guarantee) The seller's obligations are different under a "guarantee". So loose English could get you into trouble!
-

guarantee: bao lanh, bao hanh guarantee and warranty: = defect liabilities: trach nhiOm d6i vdri khiem khuye't

product warranty: bao hanh san pha'm warranty: bao dam, bao hanh warranty of title: bao dam quyen so hCru

75

As a general rule, incorrect use of "guarantee" causes trouble: use the word only if you mean a third - party guarantee. Many contracts avoid the problem by speaking of defects liability rather than of warranty. This is exactly the right concept, as we shall see in the next section.
2. THE DEFECTS LIABILITY PERIOD

A warranty protects both seller and buyer. The seller is protected against the accusation that he has breached the contract if some goods are defective. The buyer is protected against defects in the goods he buys. Some defects are apparent when the goods are delivered, but this is unusual. Most defects are latent. Defects are of three kinds: workmanship, materials, and design. Failure to meet specifications is a design defect. Problems caused by misuse or wear and tear are not defects. A defects liability provision (or warranty) puts into words what everyone accepts: not all products are perfect on delivery. This provision covers defects that are present at the moment of delivery. Normally quality control prevents products with obvious defects from leaving the factory, so "defects" normally means hidden or latent defects. Defects may be in workmanship, in materials, or in design. The defects liability period (or warranty period) is the period during which the seller is liable for, and must make good any defects that are apparent on delivery or that come to light later. A defects - liability provision, then, covers defective workmanship, materials and design. Just as important is what it does not cover. The two most common exclusions are (a) fair wear and tear and (b) misuse by the buyer. A specimen clause The defects liability provision below is taken from a standard procurement contract for a major aircraft project.

hidden:

an

latent: Sn 76

Warranty
The Supplier warrants that each Item supplied under this contract (and each part thereof) shall at the date of its acceptance: (i) be free from defects in material (ii) be free from defects in workmanship including but not limited to all manufacturing processes (iii) be free from defects inherent in design including but not limited to selection of materials, and (iv) be fit for the purpose for which the Item is normally used If it is discovered in the Item or in any part thereof any defect or deficiency, then the Supplier shall either repair or replace such item or rectify such deficiency The warranty above is subject to the purchaser having adhered to the procedures or instructions applicable to the use, storage, installation or operation of the Item and expressly excludes all damage arising from wear and tear to the Item in normal use

3. REMEDY

The seller normally wants to control over how he will correct defects. If the buyer is allowed to repair the goods, the contract must specify the circumstances exactly. The defects liability provision allows the seller to put problems right. Usually the seller can either repair or replace a defective product. Who decides? The seller likes to include the words "at his discretion"; buyers normally resist this:

If, during the defects liability period, any defect comes to light in any item of supply, then the seller shall, at his discretion, repair or replace the item Another common choice, especially for superficial defects is reduction of the price, with the consent of the buyer, of course.
inherent: a bOn trong/ an wear and fear: hao mem tin nhiOn

rectify: seta china at one's discretion: theo su suy xet cCia ai db

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Some contracts allow the buyer to repair the product, perhaps at the seller's expense. If the repair simply involves replacing a throw - away module, the seller is probably with this procedure. Two specimen clauses The provision below makes the seller's responsibilities particularly clear:

Defects Liability The Seller shall warrant that the goods are made of the best materials, with first class workmanship, are brand new, unused, and comply in all respects with the quality and performance specifications given in Annex B. The seller shall warrant that the goods, when correctly mounted and properly operated and maintained, shall give satisfactory performance for a period of twelve months If any defect in materials, workmanship or design or any discrepancy with specifications comes to light during the warranty period, and if the Buyer makes the defect or discrepancy the subjects of a claim, the Seller shall at his own cost and expense satisfy the claim, subjects to the agreement of the buyer, in one of the following ways: a. Agree to the rejection of the goods and refund to the Buyer the value of the goods rejected b. Reduce the price of the goods according to the degree of inferiority, to extent of damage, or amount of loss suffered by the buyer c. Replace the defective goods with new goods which conform to the quality and performance specifications given in Annex B d. Repair the defective goods to bring them in conformity with the quality and performance specifications given in Annex B e. Allow the Buyer or a third party appointed by the Buyer to repair the defective goods and to bring them in conformity with the quality and performance specifications given in Annex B at the Seller's risk and cost

consent: them th4n, dung }"/ superficial: ben ngoai, hien till mount: hip rap

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Such a clause is tough on the seller. Some contracts go even further especially in a "Buyer's market". The following clause (from a spare - parts supply contract) imposes an onerous duty on the seller: When a latent defect or other warranty claim in the supplies occurs to the same item of supply more than once, the Supplier shall, at its own expense, correct or replace all like items already delivered or to be delivered Sellers are unhappy about such unusual demands; they carefully price the risk involved and increase the contract price accordingly. This is, of course, a general rule: the tougher the warranty, the higher the contract price. 4. THE TIMING OF TIIE DEFECTS LIABILITY PERIOD The defects liability period presents four separate timing problems. Many contracts regulate only one. What are the other problems, should you regulate them, and, if so, how? The parties always fix the length of the defects liability period. Also important, however, are (a) the time allowed to the buyer to notify the seller of a defect, (b), the time the seller has to correct the defect, and (c) the period during which the buyer can raise a legal action. Because national laws differ widely, the parties often regulate these matters.

4.1. The Notification Period


In practice, many contracts do not put a precise time limit on the Notification Period. Two examples:

The buyer shall notify the Seller of defects without undue delay or If any such defect appears or damage occurs, the Employer of the Engineer shall forthwith notify the Contractor thereof

onerous duty: b6n phan Ong ne at the seller's risk and cost: ngutri ban chiu moi rui ro ye phi ton

extent: mCrc db
79

If both parties act in good faith, this "soft - edged" timeframe works well. If a legal problem arises, the Anglo - American judge makes a fair estimate of "undue delay", a :'reasonable time" or "forthwith". Such concepts are well known to the law. 4.2. The Rectification Period Rectification is similar to notification: the making good of defect without undue delay" or "within a reasonable time" is a fair and normal contract requirement. FIDIC (1987) says: The Contractor shall make good the defect or damage as soon as practicable and at his own cost @ 30.2). 4.3. The Legal action Period After a lapse of time, legal claims become unenforceable. This "legal action period" differs with the applicable law. In Germany, for example the Civil Code (BGB) defines a legal action period equal to and concurrent with the defects liability period.
5. WHO PAYS FOR CLAIMS UNDER WARRANTY?

Who pays for making defects good? Normally the seller, but there are exceptions. Further, if a machine breaks down, the buyer can face enormous consequential losses. How does the contract handle this problem? There are no standard defects liability provisions. The parties must negotiate carefully. The stronger the buyer, the heavier the seller's liability. A product warranty usually requires the seller to make good defects "at his own expense". Some warranties, as we shall see in the Comprehension Questions, are less generous to the buyer. Sometimes, the buyer must share the costs of repair, must pay for shipping defective parts, or must pay the cost of sending a repairman to the site. There are no standard clauses - The parties must negotiate carefully every provision of a warranty. The real risk for the seller is not, in fact, the cost of repairing and replacing defective goods. That risk is in the price. The big risk is that he has to compensate the buyer for "consequential damage" or "consequential loss". Consequential losses (often called indirect loss) are dangerous. Most sellers try to include a clause that limits their responsibility to direct losses only, for example: .
forthwith: tut thi, trong vOng 24 giet concurrent: 00 hop vai rectification: diet, chinh, sera chira lapse: qua di consequential loss: ton thgt gian tigp (tOn thgt 0 hau qua cem vigc gi dO)

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The Contractor shall not be liable to the Employer by way of compensation for any loss of use of the works (whether complete or partial) or for any loss of any profit or for any indirect or consequential damage that may be suffered by the Employer On the other hand, a strong buyer makes the seller accept such risks: The Seller shall indemnify and hold harmless the Buyer against any loss or damage whether direct or indirect suffered by the Buyer as the result of defective or faulty goods delivered by the Seller

6. DEFECTS LIABILITY AND MAINTENANCE

A strict line must be drawn between defects liability and maintenance. The danger of a poorly drafted defects liability provision is that it shades over into a maintenance clause. The seller usually words the defects liability provision so that his only duty is the making good of defects. If the buyer wants maintenance, then the parties normally conclude a separate maintenance contract. We have seen that a defects liability provision is normally limited "hidden" defects in workmanship, materials or design. Sometimes, however, the supplier agrees to keep equipment running despite fair wear and tear, misuse, accident, and even force majeure events. This is not a defects liability provision - it is a maintenance clause. Under a maintenance clause, the seller says: "Whatever the cause of the problem, I will keep your machine in working order". Normally the buyer pays extra for this expensive service. For this reason, maintenance is often the subject of a separate contract. For the seller, the danger is that: he writes a warranty so badly that he accidentally adds maintenance to his normal duty to repair and replace. It is also dangerous for the buyer. If maintenance is important, then the supplier must carry it out faultlessly merely fulfilling warranty obligations is not good enough for example.

misuse: lam dung shade over into: a mau thanh hold harmless = save harmless: lam cho ai clO khOng phai chiu (trach nhiam) ve...

81

Maintenance Period a. The maintenance Period is a period of one year starting from the date of the take - over of the works by the Purchaser b. To the extent that the Works shall comply in all respects with the contract, the Seller shall execute all such work of repair, amendment, reconstruction, rectification and making good of defects, imperfections, or other faults as may be required by the Engineer

7. COMPREHENSION QUESTIONS
7.1. BEC delivers 200 sets of electronic scales for weighing chemicals. For

each problem below, decide what kind of defect is involved.


Defect in workman - ship q Defect in materials q Defect in design q

No defect q 1. The scales are delivered with pans that hold only 1 kilo of most chemicals though the scales weight up to 8 kilos. 2. Two scales have no rubber feet. 3. One scale cannot be set to zero. 4. Five scales are badly painted. 5. Twenty scales arrive late. 6. The scales are designed to be accurate within 001 grams; tests give figures closer to 02 grams.

q q q q q

q q q q q

q q q q q

q q q q q

7.2. These provisions are taken from a contract to provide a key electrical intent: el& vgi, k doh imperfection: CO khiam khuy6t interaction: using haat dOng, phoi hop associated documentation: tai li6u co lien quan

take - over: ban giao fully compatible with...: hoan toan tvang thich invalidate: lam mat hiau ItiC defect of workmanship: khi6m khuy6t tay nghe

82

component for a rapid transit system (subway) in a country in the Far East. The seller was unhappy about both provisions. Can you see why?

If, in the opinion of the Project Manager, it becomes necessary within the Defects Liability Period to correct a defect in respect of Train design, design of software or component parts of the Train, or in respect of the interaction of the various elements of the Train, including the updating of all the associated Documentation, the Project Manager may instruct the Contractor within a time specified to correct such defect, free of charge, to the Employer to the satisfaction of the Project Manager

In the event that the Employer procures spare parts from sources other than the Contractor, provided such spare parts are fully compatible with the Train and Works supplied by the Contractor, then the use of such spare parts shall not invalidate the Defects' Liability provisions of this Agreement 7.3. Compare the two extracts below, and then answer the questions. Warranty The Supplier warrants that the Goods supplied under this contract are free of defects of any kind. The Supplier will repair or replace any Goods of his supply that are found to be defective during the warranty period

Defects Liability Period The Supplier warrants that the Goods supplied under this contract are, on the date of delivery, free from any defect of workmanship, materials or design. If the Purchaser notifies the supplier during the defects' liability period that any of the said Goods were provably defective on the date of delivery, then the Supplier shall, at his discretion, repair or replace the Goods Assume that the law of Verbena applies to the contract. With which of these statements do you agree?

83

Agree q q

Disagree q q 1. Provision 2 is not a warranty because it is headed "Defects' Liability Period". 2. Provision 2 makes the supplier's rights clearer because it specifies a date when the products were free of defects: the date of delivery. 3. Provision 2 makes the supplier's rights clearer because it limits the defects to three types: workmanship, materials and design. This excludes defects caused by dab shipping, theft, misuse by the purchaser, etc. 4. Provision 2 makes the supplier's rights clearer because it forces the purchaser to prove the defect was present in the goods on the date of delivery. 5. Provision 2 makes the supplier's rights clearer because it allows him to choose whether to repair or replace the goods.

7.4. Read this defects liability provision, and then answer the questions.

Defects' Liability Period The Defects' Liability Period shall be a period of twelve months calculated from the date of delivery of the Goods; If any defect occurs during the Defects' Liability period, the Buyer shall forthwith inform the Seller stating in writing the nature of the defect The Contractor shall be responsible for making good with all possible speed, of any defect so notified which arises from defective materials, workmanship or design (other than a design furnished or specified by the Buyer) The provisions of this clause shall apply to any Goods repaired, replaced or otherwise made good by the Seller, but not so as to extend the Defects' Liability Period for more than twenty - four months from the date of first delivery of the repaired or replaced Goods

specify: cu the 'Oa furnish: cung cap

84

The Defects' Liability Period shall be extended by a period equal to the period during which the Goods cannot be used by reason of the aforementioned defect, but not so as to extend the Defects' Liability Period for more than twenty - four months from the date of first delivery of the repaired or replaced Goods 1. How long is the defects' liability period? 2. When does the defects' liability period begin? 3. When must defects be notified? 4. When must defects be made goods? 5. Is the defects' liability period increased by the period when the goods cannot be used? q YES q NO

6. Does the defects' liability period begin again when the goods are repaired or replaced? q YES q YES 8. If "No", why not?
7.5. In November 2006 you take delivery of a plant for filling and capping mineral - water bottles. The plant is manufactured in the USA. The law of the State of Wisconsin applies. In March 2007, the plant begins to go wrong: a belt becomes worn causing bottles to break, about 5% of bottles are only half filled due to a sticking valve, and the poor hydraulic control caps some bottles so tightly that the glass cracks. Operation of the plant is dangerous, and you shut it down. You look at your warranty:

q NO q NO

7. Is there a danger here of an "eternal warranty"?

to be extended: duvc gia han aforementioned: da" nOi trOn tri.r6c

capping: d6ng nut chai

85

The Defects' Liability Period shall be twelve months from the date certified in the Taking - Over Certificate. The Seller shall make good with all possible speed and at his own expense, any defect in or damage to any part of the works which may appear or occur during the Defects liability Period. Transportation costs and the cost of accommodation for the Seller's personnel will be borne by the Buyer; Any increases in the price for repair or for replacement parts that may have arisen in the period since the execution of the contract will be charged to the Buyer; All further rights, and especially the right to ask for ensuing damages, be it under this contract or otherwise, are expressly excluded Which of the following rights do you have? The right to: q YES
q YES q YES q YES q YES q YES q YES q NO q NO q NO q NO q NO q NO q NO q NO 1. Ask for a replacement belt, a replacement valve, and for inspection of the hydraulic control system. 2. Ask that all systems are made to function correctly.

3. Ask for compensation for damaged bottles.


4. Ask for compensation for loss of profit and other damages.

5. Ask for replacement of the entire plant. 6. Return the plant and get your money back.
7. Ask for the repair of a hole torn in the machine by the careless use of a fork - lift truck (Read carefully) 8. Other (Specify).

q YES

Taking - Over Certificate: gig)/ chimg nhan ban giao accommodation: ch6 ensue: keo theo

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Part 7

BREACH OF CONTRACT

1. LIQUIDATED DAMAGES AND PENALTIES Many international contracts strengthen their provisions with penalties, especially the provisions concerning delivery, payment and defects liability. The value of the penalty is in terrorem (Latin for "as a means to terrorize"). Anglo - American courts, however, do not enforce penalties. Your contracts may need rethinking if an Anglo - American law applies. If one party suffers a loss because the other party fails to perform, then the party at fault, must pay compensation. Some losses are exact. If exact prediction is impossible, the contract often stipulates lump-sum compensation for liquidated damages. This sum is normally payable regardless of the actual loss incurred. If the lump - sum figure is far too high and if its purpose is to force (or "terrorize") one party into performance, then it is a penalty. We have talked about non-excusable delay: delivery is late and there are no excuses, the seller has breached the contract. What happens in such cases of non-performance? If the contract says nothing, then the innocent party (in the case of late delivery, the buyer; in the case of late payment, the seller) goes to law to obtain a remedy- compensation for the loss he has suffered. To avoid the expense and uncertainty of legal proceedings, most international contracts specify the consequences of certain breaches, particularly late payment, late delivery, and failure to repair under warranty. If the buyer pays late, he must pay interest to the seller. The thinking is clear: if the seller must borrow money from a bank because the buyer has not paid, tie must pay interest to the bank. The bank interest is the harm the seller suffers. It
non performance: kh6ng thur hien
-

breach of contract: vi pharn hop d6ng

87

is easy to give a figure for the harm, and so the contract specifies compensation equal to the harm:

Delayed Payment

If payment of any sum payable is delayed, the contractor shall be entitled to receive interest on the amount unpaid during the period of delay The interest shall be at an annual rate three percentage points above the discount rate of the central bank in the Contractor's country (FIDIC, 1987, @336)
2. LIQUIDATED DAMAGE: PROBLEMS

National laws differ widely in their treatment of damages. Few generalizations are possible. Most questions relating to damages are normally, however, disposive. The parties can make whatever arrangements they wish. Clear contracts regulate all potential problems. Let's look at this typical liquidated damages clause:

Liquidated Damages

If the Seller fails to supply any or all of the Goods within the time period specified in the Contract, the buyers shall notify the Seller that a breach of contract has occurred and shall deduct from the Contract Price per week of delay, as liquidated damages, a sum equivalent to one half percent of the delivered price of the delayed Goods until actual delivery up to a maximum deduction of 10% of the delivered price of the delayed Goods

This clause covers the basic points: the breach of contract that triggers payment of liquidated damages. It is required at that the buyer notify the seller that the breach has occurred and of the amount of the damages and the ceilling. Many contracts go no further than this. Unfortunately, however, several questions still lack answers.

disposive: khOng bAt buOc typical: dien hinh

88

Are Liquidated Damages Payable When There is No Loss? The principle behind liquidated damages is this: if an objective condition occurs (for example, delivery is a week late) the party at fault will compensate the injured party, usually by paying money. One immediate question arises. It is a principle of Anglo - American justice that if you have suffered no loss you can claim no compensation. How does this apply to late delivery? Often delivery a week late is a problem but sometimes the delivered goods sit unused in a warehouse for weeks after delivery. There is no loss at all. If there is no loss, are damages still payable? National attitudes vary on this problem. In the U.S., for example, a court usually enforces the Damages clause if the figure is a fair estimate, with or without loss (Groner, p.326) Judges applying Swedish law might reach a different conclusion (ICC, 1990, p.40). For the contract drafter, the answer is to regulate the matter in the contract: Payment of liquidated damages is contingent exclusively upon late delivery of the goods; in no case shall the buyer be required to substantiate any claim for payment of liquidated damages with proof of loss or damage Are Liquidated Damages Payable When There is No Fault? A second problem: fault. If late delivery (or whatever) occurs but is not the fault of the supplier, must the supplier still pay liquidated damages? The question of force majeure was discussed in Part 4. Does force majeure excuse payment of liquidated damages? Normally, yes. But "normally" is not good enough for the careful drafter. Let's modify an earlier example to clarify the issue of fault:

Liquidated Damages If the Seller fails to supply any or all of the Goods within the time period specified in the Contract for reasons for which he is at fault, then the Buyer shall deduct from the Contract price per week of delay, as liquidated damages, a sum equivalent to one half percent of the delivered price of the delayed Goods

triger: lam ph& sinh ceilling: gia tran, gia cao nhal

contingent upon: le thueic substantiate: an chCrng

89

Or, more favorably for the buyer: "whether or not the Seller is at fault".

Is Payment an Alternative to Performance?


Sometimes a seller treats the liquidated damaged clause as an option - either deliver on time or pay. Sometimes the seller may find it more convenient to pay! To prevent this, the courts in many countries give the buyer a Decree of Specific Performance; this forces the seller to deliver the goods. Specific performance or an injunction may be granted to enforce a duty even though there is a provision for liquidated damages for breach of that duty Again national laws differ. Under Swiss law, "the exclusive penalty clause is a special case which allows the promisor, if he so chooses, to pay the amount of the penalty instead of performing the principal obligation" (ICC, 1990, p.42). The promisor has the duty, however, of proving that the penalty clause in question expressly allowed him that right. The practical answer, once again, is careful contract drafting:

The payment of liquidated damages shall not excuse the Seller from full performance of any of his obligations under this Contract

Is Compensation Allowed Beyond Liquidated Damages?


Under most laws, payment of liquidated damages satisfies the buyer's claim against the seller. In the U.S., for example, "Enforceable liquidated damages clauses take the place of judicial determination of damages" (Hoeber, p.345). The situation under German law is, however, somewhat different: "In principle the payment of the penalty does not stop the promise from proving the existence of greater damage and claiming full compensation" (ICC, 1990, p.333). Paying a penalty does not cut of further claims. In this case the naming of the clause is all important. The matter, like most aspects of damages, is disposive under most laws: the parties can agree to any arrangement they wish. Generally, the seller prefers wording like this:

to the exclusion: loai frit cancellation: hay b3 at law: theo luat in equity: theo le full and complete satisfaction: thaa man day dei ye hoan town

90

The payment of liquidated damages shall comprise the full and complete satisfaction of any claim the Buyer may have against the Seller; Any further remedy, be it under this contract, at law or in equity, is expressly excluded This is the basic Anglo - American understanding. The buyer, on the other hand, prefers wording that follows the German line of thought:

The payment of liquidated damages shall not limit the Buyer's right to seek other remedies under this contract or otherwise; In particular, the right to seek compensation for consequential damage shall not be excluded Interestingly, the FIDIC Conditions make no direct reference at all to damages, or to penalties. The result of late delivery is simply a reduction of the contract price for each day of delay. The key wordir g is this:

Delay in Completion ... Such reduction shall be to the exclusion of any other remedy of the Employer in respect of the Contractor's failure to complete within the Time for Completion 3. TERMINATION When delay becomes intolerable, the buyer may wish to end the contract. quick, clean death is better than a long, messy one. How is it achieved? A full termination -fir - cause provision specifies exactly when the buyer can end the contract; often it also protects the seller's rights. According to at:: UCC, cancellation occurs when one party asks a court to end a contract because the other has breached it. Cancellation is expensive, mesry and unpredictable. For the seller, the danger is that he/she may receive no payment for services rendered or goods delivered. Termination (as the UCC conceives it) is an altogether tidier procedure:
to tt3 exclusion: d6i v6i viec loci trig intolerable: khong the tha tin? duvc conceive: nghi ra, tvang tuvng termination - for - cause: k6t thQc co nguyOn cd

outstanding sum: khoan chits thanh Oar)

91

contract provision states the circumstances under which the buyer can end or terminate the contract. Such termination is often "for convenience": in this case, the contract includes a winding - up procedure for final deliveries, final payments, and so on. An example: Termination for Convenience 1. The Purchaser may, by written notice to the Supplier, terminate the contract in whole or in part, at any time for its convenience; The notice of termination shall specify the extent to which performance of the work under the Contract is terminated, and the date upon which such termination becomes effective 2. The Goods that are complete and ready for shipment within 30 days after the Supplier's receipt of the notice of termination shall be purchased by the Purchaser at the Contract terms and prices Termination 'for default" means that, under closely specified circumstances, the buyer can end the contract: Termination for Default The Purchaser may, by written notice of default sent to the supplier, terminate this contract in whole or in part: a. If any delay in delivery due to force majeure exceeds 75 days; or b. If any delay in delivery for reasons other than force majeure exceeds 30 days This clause states two events that can trigger termination, but (at least) two problems remain: (a) how does the buyer obtain the goods he contracted for and urgently needs, and (b) how is the seller compensated for deliveries made so far? The clause might go on to specify: If the Purchaser terminates the Contract in whole or in part, then the Purchaser may procure, upon such terms and in such a manner as it deems
termination "for default" : ke't th6c vi kh6ng c6 kith 'fang the Wan expire: het han

buyer - oriented: hutng toi ngtrai mua

92

appropriate, goods similar to those undelivered, and the Supplier shall be liable to the Purchaser for the excess cost of goods so procured over their Contract price If the Purchaser terminates the Contract, in whole or in part, then the Purchaser shall pay the Seller all outstanding sums due for goods delivered under this Contract, less any sums due to the Purchaser as liquidated damages or for any other purpose; Payment of such sums shall be made only when all warranties made by the supplier have fully expired Such a clause, though it seems buyer - oriented, protects the rights of the seller too. Cancellation of the contract and a court settlement are sometimes rather less generous.
4. THE LIMITATION OF LIABILITY

It is easy to stipulate a clause refusing to accept any liability whatsoever for anything. But it is difficult to persuade the other party to accept it and to avoid overstepping the limit of what the courts are ready to enforce. With a few exceptions, the courts allow businessmen freely to allocate between them the risks of doing business. Your contract can limit your risks as long as the other side agrees to the limitation. Openness and clarity are the keys; the courts do not enforce tricky wordings. There are briefly four ways each side can limit its liability. Since many business risks are taken by the seller, he or she normally adds limitation of liability clauses to the contract. The buyer, on the other hand, tries to reduce their impact. The four ways are as follows: 1. Ceilling 2. Roadblock 3. Iron curtain 4. Buck passing

overstep: vtigt qua (gidi hen) allocate: phan bo tricky: bip bgm The worst comes to the worst: dieu xau nhat xay ra

pinpoint: c6 dinh, an dinh exposure: rdi ro ca the c6 impact: anh twang, tac dOng

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4.1. The Ceiling


In analyzing the risks of a contract, the seller pinpoints his "exposure" (= his possible loss) if the worst comes to the worst. In this process, he tries to set a ceilling on payments for which he is liable:

Delay
For each week of delay, the Seller shall pay 1% of the contract price up to a maximum of 10% of the contract price This wording puts a money ceilling on the seller's liability for delay. Another common ceilling is the extent of insurance cover.

Compensation
The Seller shall be obliged to compensate and save harmless the Buyer for personal injury and property damage to the extent that the damage concerned is covered by the Seller's insurance. On the Buyer's request, the Seller shall hand over for inspection to the Buyer a copy of all relevant insurance policies Similarly the seller often tries to limit his total liability under the contract:

Total Liability
The total liability of the Seller for all claims for damages made against him by the Buyer under this Contract or otherwise shall not exceed 10% of the Contract price Or

Aggregate Damages
The aggregate amount of all damages (excluding liquidated damages as referred to in @ 23 of this Contract) costs and expenses recoverable from the
money ceilling: s6 tion 161 da insurance cover: pham vi bao hiem total liability: trach nhiem t6i da aggregate damage: ton that tong hop recoverable: cO the hoar) tra to be restricted to: hen the den (mire)

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Contractor is restricted to and in no case may exceed 3% of the Contract value In both these examples, the sum payable is fixed as a percentage of the contract price; this is normal. Sometimes a money ceilling is set (for example, "$50,000"). Sometimes, the calculation is more complicated (for example "$10 for every meter of cable delivered"). The parties agree whatever is appropriate to their situation. Ceillings are often set for a particular time; in this case guillotine is perhaps a better word:

Liabilities after Expiration of Defects Liability Period The Contractor shall have no liability to the Employer for any loss of or damage to the Employer's physical property which occurs after the expiration of the Defects Liability Period unless caused by Gross Misconduct of the Contractor (FIDIC, 1987, @42.3) The "fiction" of delivery in accordance with the contract is a time - ceilling favored by many sellers:

Notification of Defects If within twenty - one days of receipt of any consignment from the Seller, the Buyer does not notify the Seller that the consignment is defective and submit samples as evidence of defect, then the consignment shall be deemed to comply in all respects with the specifications and the Buyer shall forego all rights to reject the consignment Such provision are usually enforceable provided they are not hidden or obscurely worded * .

physical property: tai san vat chat gross misconduct: pham loi re' rang Ong tivn) fiction: tuVng tuvng, hu'clu thoroughgoing: thang than, haan toan, dirt khoat

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4.2. The Roadblock

For the seller, risk attacks down many roads. The seller tries to block of as many of these roads as possible. One ocmmon roadblock was discussed in Part 4: the force majeure provision.

Force Majeure

If either party is prevented from. or delayed in, performing any obligation under this contract by reason of a force majeure event, then this party is not considered to be in default and no remedy, be it under this contract or otherwise, is available to the other party An especially dangerous road for the seller is his liability for consequential loss or damage. In Part 5, we saw the danger of a warranty claim going beyond the simple duty to repair or replace. Sellers usually try to add a thoroughgoing rejection of liability for consequential loss:

Consequential Loss or Damage

Performance of the said duty to repair or replace defective items or to pay liquidated damages in the agreed amount shall constitute full and complete satisfaction of any claim of the Buyer under this warranty. The Seller shall not be liable to the Buyer, by way of compensation, for any loss of profit or for any loss or consequential damage that may be suffered by the Buyer, or for any other loss, injury, harm or damage however arising As we have already seen, the buyer's interests are directly opposed:

Seller's Liability

The Seller shall indemnify and save harmless the Buyer against any loss or damage whether direct or indirect suffered by the Buyer as the result of defective or faulty goods delivered by the Seller Unusual roads are open in many contract situations; again the seller tries to block them off. In the clause below, for example, a contractor working on a power plant in South Africa tries to limit his liability for sabotage: he says, in effect, that sabotage by his workers is not breach of contract:

96

Contractor's Liability The Contractor shall be liable for all acts and omissions of his servants, agents, workmen and personnel. However, damage caused by the willful intent of Contractor's servants, agents, workmen and personnel shall not give rise to any claim for compensation for the Contractor A common problem in international contracts is patent rights. If a French supplier sells a machine to Verbena and a law suit begins in Verbena because a local company claims patent rights over part of the machine, then who is liable and who pays? Both the seller and the buyer have an interest in blocking off this road. The clause below is from a contract between a Chinese importer and a German supplier of steel-making machinery. The clause favors the Chinese buyer: Settlement of Claims by Third Parties The Seller shall be responsible for taking up and settling all challenges, claims or law suits brought by individuals, manufacturers, companies and authorities of any country in connection with the know - how transferred to the Buyer under this Contract. The Buyer shall take no responsibility, legal, financial or otherwise, for such challenges, claims or law suits The general rule: Wherever you foresee a risk in the contract, draft a roadblock clause to reduce the risk or exclude it altogether.
4.3. The Iron Curtain

"Everything that is not allowed is forbidden". This principle is helpful, especially to the seller. Like the iron curtain of the post - war years, it blocks off all avenues of approach apart from those deliberately kept open. Three examples of iron - curtain clauses: Comprehensiveness The rights and duties provided for in this Contract are the only rights and duties in case and in consequence of a breach of this contract by either party and all further rights and duties, be they under this contract or otherwise, are hereby expressly excluded
to give rise to: lam phat sinh challenge: tranh chgp, thach thitc

sabotage: su pha hoai omission: be) sOt willful: c6 .}"/

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Limitation of Liability The Buyer's sole remedies for claims of any kind with respect to the products furnished under this Agreement and with respect to all other performancs by the Seller, under or in connection with this agreement or with respect to or in any way connected with the manufacture, sale, handling use, repair, maintenance or replacement of the products including liability arising out of contract, strict liability, negligence, or any other tort shall be limited to those remedies prescribed in the warranty section of this Agreement

Exclusive Remedies The Employer and the Contractor intend that their respective rights, obligation and liabilities as provided for in these Conditions shall alone govern their rights under the Contract and in relation to the Works.

Accordingly, the remedies provided under the contract in respect of or in consequence of: a. any breach of contract, or b. any negligent act or omission, or c. death or personal injury, or d. loss or damage to any property are, save in the case of Gross Misconduct, to be the exclusion of any other remedy that either may have against the other under the law governing the Contract or otherwise. (FIDIC. 1987, @42.4) In other words, "Everything that is not allowed is forbidden". 4.4. Passing the Buck An indemnity passes your responsibilities to somebody else. This is fine, as
iron curtain: mau thap sole/ exclusive: riong, rieng bi6t, dOc nhgt save: trer (giUi tit) possession: chigm him ownership: sa hCru buck: do la deliberately: c6k tort: t6n hai patent licence: Gigy phep sef dung bang sang chg. licensee: Nguti dutc cap gigy phap licensor: Nguti cap gigy phap

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long as the other side agrees to it. An indemnity simply says: "If anyone makes me pay, then I will pass the bill to you, and you can pay it". The example below comes from the procurement contract for an aircraft project:

Product Liability

The Supplier shall fully indemnify and hold harmless the Purchaser from and against any loss, liability or claim in respect of personal injury to, or the death of, any person or any loss of or damage to any property of any kind whatsoever arising out of or in connection with the possession, ownership, use and operation of the Item by the Purchaser or any third party approved by the Purchaser whether such Item is installed in an Aircraft or not

Similar clauses occur in contracts where local taxation is a problem for a foreign company: the local company agrees to "compensate and save harmless" the foreigner. Patent license agreements often indemnify the patent holder: If a lawsuit is brought against him in the licensee's country, the licensee must "compensate and save harmless" the licensor. Indemnity clauses are, by their nature, unbalanced. They are usually a sign that one side, buyer or seller, has the upper hand.
5. COMPREHENSION QUESTIONS 5.1. A Fine Contract

The following clause is (lightly) adapted from a contract for the construction of a hydroelectric project.

Fine Payable

If the Contractor fails to complete the work at the fixed date, a fine shall be imposed upon him for the period of delay until the work is completed. The fins shall be as follows: 2% for the first week, or any part of it; 4% for the second week, or any part of it; 6% for the third week, or any part of it;

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8% per week for the fourth week, or part of it, and for all succeeding weeks. The fine shall be calculated on the total contract value. 1. The clause uses the word "fine". Does that tell you with certainty what kind of clause your are looking at/ (Penalty clause or liquidated damages clause?) q YES q NO 2. How long after a delay does the contractor lose 100% of the contract price? ... Weeks 3. Do you think this clause is a penalty clause or a liquidated damages clause? q PENALTY q LIQUIDATED q DAMAGES

4. If the applicable law is the law of the State of New York, would the judge enforce this clause? q YES 5.2. Damages Is the clause below a liquidated damages clause? If no, what is it 9 Damages for Delay in Delivery or Supply Should the contractor delay delivery of any item of supply beyond its specified due delivery date under the contract, the Contractor acknowledges that, as a result, the Employer will suffer loss and damage, and the Contractor agrees to pay to the Employer an amount in damages to compensate for such loss and damage for each day by which actual delivery exceeds the specified due delivery date under the Contract 5.3. Without Prejudice How do you think a seller would try to modify the following clause q NO

without prejudice: Kh6ng phuvng ton d6n...,

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If the seller fails to deliver the goods on the date specified in the contract, the buyer shall, without prejudice to its other remedies under the contract, impose as liquidated damages a sum of 1 per cent of value of the delayed goods per week up to a total of 10 per cent of the total value of the delayed good
5.4. Material Breach

Study the provision below and then answer the question: In the event of a material breach of any condition of the c,ontract, the Purchaser shall give the Supplier written notice of such breach, and the Supplier shall have four weeks from the receipt of such notice in which to rectify the breach. Should the Supplier fail to rectify the breach within such period, the Purchaser shall have the right forthwith to terminate the Contract in whole or in part In the event of termination, the Supplier shall refund any advance payments made against undelivered items In the event of termination, the supplier shall not be entitled to payment of any amount by way of compensation or otherwise in respect of such termination The price to be paid by the Purchaser for work carried out under the Contract prior to the date of the termination shall take into account the shortfall between the work actually performed and the complete work as specified in the Contract 1. Does the use of "termination" here follow UCC usage? q YES q NO

2. What is a "material breach"? q a. Supply of defective material. q b. A breach that causes a significant loss to the buyer. 3. Is the provision about notification and rectification in four weeks fair to the supplier? q YES
material breach: vi pham nghiem trong refund: tra lai tien

q NO
prior to: fru& advance: tien Cmg trutc

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4. This clause is taken from a contract for the supply of goods and services. How were the goods apparently paid for under this contract? 5. The clause speaks of "compensation". Is this: q a. Compensation for the loss of the contract? q b. Compensation for goods and services supplied so far? 6. Will the Supplier be compensated in full for the work he has done so far? q YES
S.S. Penalty Spot

q NO

Study this clause from a consultancy contract. The consultant examined the heavy electrical equipment requirements of a government department.
Penalty

1. If the Consultant falls to fulfill the contract, in whole or in part, he shall pay a penalty to the Ministry. For each full week of delay, the penalty shall be 0,5% of the value of the outstanding portion of the performance; the total, however, shall not exceed 8% 2. If the Ministry is entitled to claim damages due to the delay, and penalties paid under this clause shall be taken into account

1. Is there a ceilling on the penalty to be paid by the Consultant if he is in delay? q YES q NO

2. If the Consultant pays the penalty, can the Ministry also sue him for compensatory damages? q YES q NO 3. If the answer to (h) is "Yes" can the Ministry claim payment in full
apparently: rO rang consultancy: hi van portion: Wien, xult

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both of the penalty and of the compensatory damages. q YES q NO 4. Is this clause dictated by a strong Consultant (Seller) or by a strong Ministry (Buyer)? q CONSULTANT 5.6. Contract Terms Inc Over a period of years, Smith hired equipment from South Wales Switchgear. Each rental was the subject of a simple form contract provided by South Wales Swithchgear. The contract stated that General Conditions of hire were available "on request". In fact, South Wales had produced three editions of these "General Conditions", the most recent in March 1990. In 1987, a machine hired by Smith broke down and Smith lost a lot of money as the result. Smith demanded compensation from South Wales. South Wales pointed to their current (1990) General Conditions which disclaimed all liability. Smith sued. The issue was this: Was South Wales' disclaimed all liability part of their agreement or not? Smith had never requested a copy of the 1990 General Conditions; however, he had had a dispute in 1989 with South Wales Swichgear, and he had received at the time a copy of the 1989 General Conditions (Smith v. South Wales Switchagear / All ER 18, 1988, modified). 1. What suggests that South Wales' General Conditions are part of the contract: 2. If the Conditions are part of the contract, which version? q 1989 q 1990 q MINISTRY

compensatory damage: ton thit phai b6i thutng disclaim: thoai thac

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Part 8

FORMATION OF CONTRACTS
1. SOME LEGAL ASPECTS

The package of rules governing business relationships is a very complex one. Some rules are enforceable and some are only applicable if not otherwise agreed. A certain practice may have developed in a certain field of business. This section is not meant to be complete. It only gives the reader a general introduction to the subject by explaining the fundamental rules of trade. Whenever money is involved, disputes can arise even between best friends. A written contract stating all agreements as detailed as possible is therefore recommended for all purchases from local as well as from foreign sources. A contract is binding whether it is written or oral. In the event an oral contract between a supplier and a buyer is later confirmed in writing. The written confirmation is binding on both parties if no objection is raised within a reasonable time. It is important to note that when a contract is reduced to writing, the written evidence supersedes all prior oral evidence. This means that a buyer cannot legally rely upon a vendor's oral statements concerning a material's performance or warranty, unless the statements have been included in the written agreement. Consequently, from a legal standpoint, a buyer should consider carefully the content of his oral negotiations with a vendor and ensure that he has reduced to writing the relevant date which he wants to include as part of the contract. The buyer should also be aware of the fact that courts have rules that written or typed statements take precedence over printed statements on the contract form, should conflicting statements appear in the document.

package of rules: chon b6 cac quy tac enforceable: cteng cha, bat bu6c applicable: c6 the ap dung

oral: bang miang supersede: v6 hiau h6a vendor: nguti ban hang

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Almost every action a buyer takes has some legal significance, so he does need to know the consequences of his actions, and must be able to recognize problems requiring expert legal assistance. Many orders are preceded by several meetings between the Buyer and the Seller, settling specifications, approving samples, establishing prices, etc. Unless these discussions negotiations are conducted with care, the parties could find themselves contracted orally so the subsequent order becomes merely a document for accountancy purposes. There is a real danger during these meetings of creating a legally binding contract with the enthusiasm of concluding the deal. Remember, as we said before, contracts for the supply of goods and services do not have to be in writing to be legally enforceable. Another important point to bear in mind in respect of oral contracts is that any limitation placed on an individual's power to commit his organization is purely an administrative device and will not affect the validity of the oral contract unless the other party knews of the limitation. Unless care is taken during the negotiation, binding oral contracts in excess of one's limits of authority - either on the part of the Buyer or, as is equally important, on the part of the Seller can easily be created. On the other hand many orders, especially for standard components, are placed without any prior negotiation. They are acknowledged by the Seller. The goods are delivered, the invoice is passed for payment, and then something is discovered with respect to the goods which was not quite as expected the Buyer on questioning the Seller is referred to Seller's Conditions of Sales. Someone forgot to study the Acknowledgement of Order and the Buyer finds himself faced with a conflict of conditions. It is thought that this does not happen in business organisations but it is surprising how many times it does happen with the pressures Buyers find themselves under today. To create a contract there must be an "offer" and an unqualified "acceptance" of that "offer". The "offer" can be either the Seller's Quotation or the Buyer's Order depending on which document is the initial one. The "acceptance" can be either the Buyer's Order or the Seller's Acknowledgement issued in consequence of an "offer". This is the most common way to conclude a contract. Unfortunately, in practice, many transactions take place without these formalities having been completed. However, big contracts are often signed in
to take precedence over: tinh trtrOc den preced: di trutc, thing trutc merely: chi la

purely: thuan ttly device: phuvng tin

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two identical copies by both parties. Every clause has been discussed and negotiated upon. The risks for conflicting statements in the documents have been carefully examined but the risks for interpretation disputes can not be eliminated. According to the general conditions ECE 188 there are only two situations when a contract is considered to have been formed.
1.1. Paragraph 2.1. says

"The Contract shall be deemed to have been entered into when, upon receipt of an order, the Vendor has sent an acceptance in writing within the timelimit (if any) fixed by the Purchaser". This says that a contract has been formed when the buyer has issued an order and the Seller has accepted or acknowledged it. The Seller's written acceptance or acknowledgment shall be sent by the Buyer within the stipulated time. If there is no such time limit the Seller is obliged to have sent his acceptance within a"reasonable" time.
1.2. The other situation is described in paragraph 2.2

"If the Vendor in drawing up his tender has fixed a timelimit for acceptance, the Contract shall be deemed to have been entered into when the Purchaser has sent an acceptance in writing before the expiration of such timelimit, provided that there shall be no binding Contract unless the acceptance to reache the Vendor not later than one week after the expiration of such timelimit". The Seller has sent his quotation in which he has stated a timelimit within which the Buyer must have acceptance to reach the Vendor not later than one week after the expiration of such timelimit". The Seller has sent his quotation in which he has stated a timelimit within which the Buyer must have accepted the offer. The contract is here entered into when. - the Purchaser has sent an acceptance in writing - the acceptance - Order - has been sent within the timelimit. - the acceptance is received by the Seller not later than one week after the expiration of such a timelimit.
conflict of conditions: xung dOt giva cac diet' ken initial: ban deli identical: giong het nhau eliminate: /001)6 enter into... giao k6t passivity: tinh thy eking counter offer: hoen gia

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The two rules require activity from the party which has received the order or the quotation. This stresses the fundamental rule: never to think a party's passivity binds him. When the Buyer's Order is the Offer, the Seller's Acknowledgment, if unqualified i.e. it does not differ in any essential point from the details of the Order, is the acceptance and a contract exists between the parties. However, if the Acknowledgement of Order shows that the Seller intends his own conditions to apply then this constitutes a counter - offer and no contract exists at that point. A statement on the Order excluding the Seller's Conditions is no protection for the Buyer and does not legally affect the counter - offer situation. Always check for a possible conflict of conditions. An offer may be accepted by conduct, e. g. by dispatching goods in response to an offer to purchase (an Order) without prior acknowledgement of the order. Similarly, an offer to supply goods made by the Seller, (this offer may be in the form of a counter - offer to the Buyer's Order) can be accepted by the Buyer by the latter taking delivery of, and using, the goods. Where a contract has been formed by conduct, it is often difficult to say exactly what terms have been agreed. The Buyer may find himself bound to the Seller's conditions. Post contract negotiations cannot affect the terms of the contract unless those negotiations themselves result in an offer and an acceptance constituting a contract, the intention of which being to amend the previous contract. The existence of the contract does not necessarily mean that all of the obligations of the Buyer and the Seller have been fully specified at the time of forming the contract. There are instances such as variation of orders where, under the terms of the contract themselves, the subject matter of the contract may be changed according to procedures set out in the contract. There is a situation, however, where the roles of Seller and Buyer are, to a degree, reversed. This is where an inquiry and a tender are involved. An inquiry is not an offer, it is an invitation to do business (in legal terms "to treat"). The Seller's tender is the offer and the Buyer's order, the acceptance. Providing the terms of the tender and the order agree there is a contract, and an acknowledgement of such an order is merely a courtesy and cannot affect the contract. Therefore, where a tender and an order have been exchanged and a contract formed, neither party can introduce any new terms. The order in which a contract document shall take precedence over other

conduct: cir chi, ti6n hanh post contract negotiations: dam phan trutc khi ky k6t hap dong

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documents should normally be stated in the contract. Such a clause could have the following wording: "The folowing documents shall be deemed to form and be read and construed as part of this Agreement, viz: a. The Special conditions b. The Tender c. The Tender Invitation d. Technical specifications e. General conditions; The conditions of The Contract shall prevail over any of the referred documents. The above contract documents are to be taken as mutually explanatory of one another but in case of ambiguities or discrepancies the same shall taken precedence in the same order they are listed in".
2. THE OFFER

An offer is usually defined as an act on the part of one person whereby he gives to another the legal power of creating the obligation called contract. The offer must be carefully distinguished from preliminary negotiation. An offer can be accepted and can thereby become a contract. Preliminary negotiations may lead to the making of an offer. The offer begins to run at the time it is received by the person to whom the offer is made, unless otherwise stated in the offer. It continues in effect until it accepted or rejected by the recipient, until it is withdrawn by the offerer, or until it lapses. Once an offer is terminated, by whatever means and for whatever reason, it cannot be revived. The form of the offer is also important. All documents intended to be incorporated must be expressly referenced and made a part of the offer. Mere attachment to or enclosure with the offer will not be sufficient. An offer if made by a vendor can be equally valid, either in writing or verbally.

prevail over: clutc xem xet truUc, th,ing referred documents: cac tai lieu dutc dan ambiguilty: toi nghia discrepancy: su khac nhau

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3. THE PURCHASE ORDER Generally, the purchase order is regarded as containing the buyer's offer and becomes a legal contract when accepted by the vendor. Many purchase order forms have a copy that includes provision for acknowledgement or acceptance. Some companies' forms use the reverse side for printing their standard conditions of purchase. Other companies may include a separate printed sheet stating their terms and conditions. 4. ACCEPTANCE OF ORDERS Having placed an order with a vendor, the purchasing officer wishes to assure that the order has been accepted. It is customary to insist upon a definite vendor acknowledgement, usually in written form. The acceptance may conflict with some of the conditions stated in the purchase order. If a careful comparison is not made of all conditions stated in the offer with all conditions stated in the acceptance, the result will be an unclean acceptance. If the buyer does not make any claim against the conditions within a reasonable be time period, the contract will get legal status and he binding on both parties. Please keep in mind that advertisements and price lists do not constitute legal offers unless specifically directed to the buyer. 5. GENERAL CONDITIONS General conditions can, be grouped in 4 different groups depending on how you categorize the issues: - international organizations - business associations - individual companies The first three categories represent a thorough evaluation of both buyer's and seller's risks in a certain business situation. Their general conditions reflect the will of both parties in a common wording. General conditions issued by individual companies are more detailed and specific in their wording and are most often written to protect the seller's interests... The problem in international trading is that only one party's national law can govern a contract. The other party is very often unfamiliar with that law. General conditions are most often written by qualified experts. By referring to a certain set of general conditions the parties can protect themselves from many
verbally: bang Idri, bang miOng reverseside: mat sau, trang sau categorize: phan logi

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conflict situations. Therefore you should avoid making any changes in the "system".
6. ECE GENERAL CONDITIONS

The most common general conditions used in international trading are issued by the United Nations Economic Commission for Europe (ECE) in cooperation with the International. Institute for the Unification of Private Law (Unidroit) and the International Chamber of Commerce (ICC). They are referred to as "General Conditions for the Supply of Plant and Machinery for Export", ECE 188 for Western European countries and ECE 574 for Eastern Europe. (See Appendix on Page 440). The main differences between the two are: - the transfer of risks of damage to the goods, in case ECE 574 does not refer to Incoterms. - reliefs (force majeure), in case ECE 574 does not include any examples of cases of reliefs. - the arbitral proceedings shall according to ECE 574 not automatically be conducted according to the arbitration rules of the ICC.
7. APPLICABILITY

Standard conditions of contract should form the foundations on which the contract is built. As such they should define the general rights and obligations which experience has shown, it is reasonable for the parties to ask for and accept. They should therefore be as comprehensive as possible and drafted in such a way that they require the minimum of alterations to meet the widely varying circumstances in any given field of purchasing. The conditions should be a simple and clear explanation of the rights and obligations under the contract. Clarity and simplicity should be the keynote throughout. What conditions shall apply on a contract is a matter of strengtheness of business attractiveness except in some cases when they are issued by national authorities. Such conditions are often governed by enforceable rules of national laws or regulations, i.e. a buying officer of a public institution must follow
reflect: phan anh Unification of Private Law: th6ng nhal to applicability: kha nang Org dung arbitual proceedings: thu tuc trong tai will: y chi keynote: then ch6t acquisition process: qua trinh mua ban

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certain rules in the acquisition process and is prohibited from accepting conditions which are not in agreement with applicable instructions. If a set of general conditions apply to an agreement between two parties, the parties must expressly have agreed upon this in a certain clause in the contract of, for instance, the following wording: "The attached General Conditions no... issued by... (enclosure no...) shall apply".
8. GENERAL NOTE ON NEGOTIATION

Always specify in the inquiry order that it is a condition of the order that the standard conditions are to be accepted. If the Seller raises any objections, these can then be the basis for negotiation, subject to legal guidance. Avoid attempting to amend the Seller's conditions to meet one's own requirements. The above represents the ideal. It is recognised that on occasions, as a matter of commercial expediency, risks will have to be taken and departures made from the practice and principles set out above. Such deviation, however, should be the exception rather than the rule.
9. COMPREHENSION QUESTIONS

Fill in the blank with one suitable word


9.1. General considerations

1. The other

to the contract

What is the exact name of the other party? 2. 2 law.

What law will apply to the contract? 3. General conditions. 3


9.2. What the

General conditions will apply?


4 is getting ?

1. Scope of goods and/for services

i. What quantity is to be supplied? ii. What are the 5


expediency: loi ich deviation: khac di, chOch twang exception: ngoai le

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2. Delivery i. 6 will delivery be made? ii. What 7 as delivery? iii. What is the 8 of delivery? iv. When do risks and title pass? v. What 9 is excusable? vi. What are the consequences of unexcused
9.3. Defects Liability 1. Definition of

10

11

i. What 12 as defects? ii. What does not count as defects? 2. Remedies i. What 13 action is required? ii. Who decides what corrective action to 3. The timing of the Defects 15 period.

14

i. How long is the 16 liability period regulated? ii. How long is the Notification Period? iii. How long is the Rectification Period? iv. How long is the 17 Action Period? 4. Who pays for Defects Liability claims? i. Will the buyer 18 any of the cost? ii. Can the seller exclude liability in any way? 9.4. What the buyer is giving 1. Price i. What is the 19 price? ii. In what currency is the contract price stated? 2. Payment i. 20 will payment be made? ii. What 21 as payment? iii. What is the 22 of payment? iv. What 23 is excusable? v. What are the consequences of delay? 112

9.5. Legal Framework law 24 1. The 2. Provisions concerning the parties 25 i. What is the exact name of the ii. What is the legal address for serving iii. Can rights and duties be assigned? 3. Definitions. Do any contract terms require

_ _

party? 26 ?

_27-

4. Coming into force Must any preconditions he fulfilled before the contract comes into force? 5. Duration and Renewal Is performance geared to a specified time frame? 6. Termination for default 28 i. Is either party allowed to ii. Is the buyer allowed to terminate for convenience?

7. Entire agreement
agreement under any applicable law? 29 i. Is contract the ii. Should any background information be included in a Whereas Recital? Invalidity clause necessary? 30 iii. Is a

_ _

8. Language
Which language will be authentic? 9. Total Liability i. Can the seller set a ceiling on his total liability under the contract? 31-- all rights and duties not expressly included? ii. Can the seller 10. Settlement of Disputes agreement clause worth including? 32 i. Is an ii. Is a conciliation procedure worth including? a dispute themselves, how will it be 33 iii. If the parties cannot settled?

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Part 9

THE INDUSTRIAL PLANT CONSTRUCTION CONTRACT


Industrial plant construction contracts, differ from the purchase contracts we have mostly studied so far in at least three ways. They involve more parties, they involve works in addition to goods, and they take many years to run their course. This is not the place for a full discussion of construction contracts; this part simply tries to show the main differences between such contracts and the purchase contracts discussed so far. The part makers frequently refer to a recent UNCITRAL publication, Legal Guide on Drawing Up International Contracts for the Construction of Instructrial Works. The reader who needs to know more is recommended to study this book.
1. UNPACKAGING, TENDERING AND NEGOTIATION

Today most plant construction contracts are "unpackaged" and subject to tender. How does this affect contract negotiation? How does it affect the form of the contract? Turnkey projects have lost favor in recent years. Each phase of plant construction is now "unpackaged" and made the subject of a separate tender. The tendering system, unfortunately, works against careful and expert negotiation of a contract. Only finger-tip control of tendering procedures achieves first-class results. What are the alternatives? Today, many construction contracts are "Unpackaged". Unpackaging means developing a separate contract for a project. For example, a typical project to build a factory involves at least the following senquence of contracts: 1. A consulting contract for a feasibility study. 2. A consulting contract for a design (or engineering study) 3. A consulting contract with an engineer to oversee the construction . installation and testing. 4. A construction contract to build the plant 5. A supply contract to deliver and install machinery 114

Why should five unpackaged contracts be written when one "umbrella" contract can also do the job? One obvious advantage of unpackaging is that local companies can carry out part of the constructions work; this increases local skills and saves foreign currency. A popular approach to large construction contracts today is for the employer and the contractor to join forces and form a joint venture. Let's take an example: a small island in the Vietnam is made of almost pure marble. Vietnam Rock approaches an Italian quarrying company for know-how necessary to set up the quarry and export the marble. It can draft the specifications and invite tenders for the construction work. Thus we have three approaches to construction contracts: 1. The Turn-key project 2. The unpackaged project 3. The joint Venture contract All the three approaches generally involve Tendering: inviting suppliers or contractors to bid for the job. Tendering, in the best international practice, is a highly regulated procedure. In brief the system is this: in an optional first step, the employer (i.e. the party paying for the work) invites companies, usually by means of a public advertisement, to prequality for tendering. Companies that want to tender must now show (a) that they have the expertise to do the job, and (b) that they meet a number of formal requirements, for example they must be registered companies, have no record of bankruptcy, and so on. Next, the employer issues an invitation to tender. This invitation is often public, or it is perhaps restricted to certain firms, for example, those who prequalify, or companies on a list of acceptable contractors. A company that wants to tender receives a list of the tender documents, specimens of documents, and a statement of the tendering procedure. An effective tendering system also establishes sub-procedures to regulate such issues as: 1. The submission of tenders that comply with the invitation; 2. The submission of alternative or partial (non-compliant) tenders; 3. Withdrawal of a tender; 4. Posting of guarantees; 5. Opening, examination and evaluation of tenders; 6. Acceptance and rejection of tenders. 115

Although most tendering procedures are already highly regulated, a 1988 UNCITRAL report suggests still tighter regulation. Each country, UNCITRAL says, could pass laws to regulate tendering "procurement laws". Procurement laws would cover all tenders submitted to ministries, state enterprises, private companies, and so on. Such laws would have three main goals: 1. Integrity 2. Efficiency 3. Promotion of special national Objectives The Integrity of the tendering process is very important internationally. Tendering must work fairly, openly and within a well established legal framework because only a trust worthy, law-based system encourages serious bids by the best companies. A clear, fair system established by law also helps achieve the goals of efficiency and the prdinotion of national objectives, for examples the development of local expertise. So far, however, few countries have passed procurement laws. Why not? One reason is the basis conflict between tendering and contract negotiation ever more difficult. A first-class agreement takes into account the true interests of both sides; both sides feel happy with it. Normally a first-class agreement requires skillful and flexible negotiation. Tendering, however, is an inflexible procedure. In fact, tendering is the natural enemy of negotiation. Some sets of tender documents recognize this by allowing a company to submit a non-compliant tender, (ie. a tender that does not perfectly agree with the project specifications). Unfortunately, non-compliance works against the main principle of tendering, that is the job goes to the lowest bidder. Only if the tenders are identical in all respects can the employer decide whose price is lowest. For this reason, serious centracters sometimes submit compliant tenders with which they are unhappy and which do not represent state - of - the - art technology. They fear that employers seldom properly consider a non-compliant tender. This vicious circle is hard to escape. The effect of tendering on technology transfer is particularly negative. For decades, many developing countries believed that buying plant and equipment would automatically bring in technology: know-how and technical expertise. All too often, this belief has proved false. The transfer of technology depends on three factors: documentation, training and technical assistance. In each case, the necessary contract provisions must be tailor-made for the project. Training is a particular problem: a proper training program always requires sensitive negotiation. 116

Tendering and negotiation: the two procedures are hard, but not impossible to reconcile. The most important principle is that the tendering procedure must not become so rigid that it makes a first-class agreement impossible. Well conceived tenders often leave specially sensitive areas such as training open for later negotiation with the successful bidder. The effect of tendering process on the shape of the contract is well known: a short contract and many volumes of contract documents. The government of Vietnam hereinafter called the Employer and the Supper group hereinafter called the Contractor hereby agree that in consideration of the price specified in Annex B being paid to the CONTRACTOR by the EMPLOYER, the CONTRACTOR shall complete the work specified in Annex A in accordance with the agreed General and Special Conditions Singed, for and on behalf of... A handful of words are, often, the "contract". The technical specifications in the Annexes are beyond our present scope. What lies within the General and Special Conditions is explained in the next section. 2. THE PARTIES In a simple sale, two parties are involved, buyer and seller. In building a plant, countless technical experts, subcontractors and suppliers all confuse the picture. How does the contract regulate so many different interests and levels of control? The employer (the buyer) uses an engineer to supervise the works. The contract must specify in careful detail the relationship between the engineer and the contractor (the seller). The suppliers and subcontractors are normally within the responsibility of the contractor; the contract considers their work as if it were the contractor's own work. Construction of a large plant takes many years and involves often hundreds of suppliers and subcontractors. For these two reasons, time scale and complexity, a plant construction contract differs, at least superficially, from the "standard" Purchase Contract we have discussed so far. The principal parties to a plant construction contract are two: the Employer (or the purchaser) and the constructor (or supplier). However, other parties, the engineer and any number of subcontractor, play a central part.

2.1. The Engineer


The engineer (sometimes called the employer's representative) is a consultant

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who oversees the works on behalf of the employer. Often, more than one kind of expert is needed: an architect perhaps, a civil engineer, an electrical engineer, and so on. These specialists work directly under the engineer. (Some international contracts call these specialists the engineer's representatives) With so many lines of control running between employer and'contractor, conflicts are a matter of certainty. Obviously the contract must specify the exact degree and nature of this control. Some extracts from the Conditions of Contract for Electrical and Mechanical Works published by FIDIC offer a possible model:
Engineer's Duties 2.1. The Engineer shall carry out the duties specified in the Contract... Except as expressly stated in the Contract the Engineer shall have no authority to relieve the Contractor of many of his obligation under the Contract 2.2. The Engineer's Representative shall be appointed by and shall be responsible to the Engineer and shall carry out only such duties and exercise such authority as may the delegated to him by the Engineer 2.3. The Engineer may from time to time delegate to the Engineer's Representative any of the duties vested in the Engineer and may at any time revoke such delegation Any such delegation or revocation shall be in writing and shall not take effect until a copy thereof has been delivered to the Contractor and the Employer... 2.4. Whenever under the Contract the Engineer is required to exercise his discretion by: a. Giving his decision or consent, or b. Expressing his satisfaction or approval, or c. Determining value, or d. Otherwise taking action which might affect the rights and obligations of the Employer or the Contractor; He shall exercise such discretion impartially within the terms of the Contract and having regard to all the circumstances 2.5. The Contractor shall proceed with the decision and instructions given by the Engineer in accordance with these conditions 2.6. The Contractor may require the Engineer to confirm in writing any decision or instruction...

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With so many parties interacting, precise regulation is essential. The most difficult of the FIDIC conditions to enforce is probably 2.4, the requirement that the engineer be impartial. The engineer himself, under contract to the employer, often (reasonably perhaps) expects their engineers to be "on their side". Conflict is inevitable, so FIDIC adds a further condition, in part to protect the engineer; 2.3. The Employer shall not appoint any person to act in replacement of the Engineer without the consent of the Contractor
2.2. The Subcontractor

Another important factor on the plant construction stage is the subcontractor. Subcontractors carry out specialist tasks such as air-conditioning, electrical wiring, roofing, and so on. Because the employer has no contract with these subcontractors, the employer has, in principle, no rights over them and no duties toward them. No line links the employer and the subcontractor; nevertheless, the subcontractor is, in a sense, working for the employer. To clarify the relationship, plant construction contracts usually contain a number of special provisions on subcontracting. The most common are: - A clause forbidding the contractor to subcontract the entire work; - A clause allowing the employer or the engineer to veto subcontractors; - A clause making the contractor 100% liable for the work of all subcontractors as if the work were his own. The last provision is especially important. Contractors sometimes try to avoid taking full responsibility of their subcontractors, but: This practice... denies the employer one of the principle advantages of employing a main contractor, that of having only one firm responsible for the contract.
2.3. The Contractor's Duties: Scope, Delivery, and Defects Liability

Delivering a plant is an immensely complex procedure. What special provisions are necessary to take into account this complexity and the extended time frame of the contract? Termination is allowed in most contracts cithcr for cause (excessive delay for example) or for convenience. A price reduction is a common remedy for 119

defective construction, especially where repair or replacement is uneconomical or simply impossible. Further, plant construction contract sometimes include a provision that the employer can (if the contractor breaches the contract) employ a new contractor and charge the work to the original contractor. Some contracts contain a tough provision that allows the employer to refuse to accept the work under certain circumstances.
Control of and Access to the Site

During construction, the Building site is under the control of either the employer or the contractor. Each must allow the other's access to the site. The contractor obviously needs access to carry out the works, and the employer needs access to inspect the progress of the works. To prevent misunderstandings, most contracts regulate this access. Where several contractors and subcontractors are working on one site under several contracts, access provisions require careful coordination.
Provision of Construction Equipment

Who provides the construction equipment? It is easier for the employer to make the contractor responsible for selecting and providing the equipment, but it may be less expensive for the employer to provide the equipment himself. In any case, this question must be regulated in the contract.
Insurance

Damage is suffered by things: Injury is suffered by people. Damage to machinery, to installations, or to buildings and personal injure to the workforce are major concerns of the employer and the contractor. The main question is, of course, who pays? The answer is usually that: the contractor pays until take-over and the employer thereafter. Usually the contractor indemnifies the employer against any claims arising from damage to property or injury to people unless the employer's own negligence is the cause of the problem. But that is not enough: ... The fact of the employer having obtained an indemnity from the contractor does not, in any way, lessen the employer's own legal liability, and the third party is perfectly free, if he can establish a valid claim to proceed against the employer. It is of the utmost importance, therefore, to the employer that the contractor has adequate resources available to implement the terms of the indemnity. Accordingly in most contracts, insurance policies cover many risks of damage and injury. Normally the contractor or the insurance company must inform the employer that the insurance policy has come into force and that the premiums are regularly paid. This is important: A failure to pay premiums results in a 120

cancelled policy. If there is a serious accident, and the contractor goes bankrupt, the employer can lose a lot of money. Clearance of Site When the work is finished, who is responsible for cleaning up? Again, there is a trade-off between cost and convenience. If the contractor cleans up, the contract price automatically reflects his costs. Services After Completion As soon as the works are running correctly, the employer takes them over. During the defects liability (warranty) period, the contractor makes good any defects. The defects liability provision does not, of course, look at problems with spare parts, maintenance, and repairs. Many contracts require the contractor (against payment of course) to supply spare parts, to maintain and to repair the equipment. Contractor often writes a separate maintenance and repair contract. Since such a contract is usually short and simple, this is perhaps a good idea. The defects liability provision in a plant construction contract follow the pattern discussed in part VI. One issue, however, is particularly crucial in plant construction: when does the warranty period begin? If there is only one contractor, then the warranty begins when the works pass the required performance tests. (This is variously called the date of acceptance or the date of take-over). If, however, the project involves several contractors, life becomes more difficult for example hydroelectric power station for which one contractor has supplied and installed the turbines and another contractor the generators. The scheduled date for completion of all performance tests is 31 December 1995. Warranty begins with successful completion of tests and runs for five years. Unfortunately, there is a two-year delay with the turbines: tests are not run until the end of 1997. The supplier of the generators who installed his equipment on time now has a warranty obligation until the end of 2002. This is not fair to him. On the other hands, the employer needs a five-year warranty. How can the parties resolve this conflict of interest? A common compromise is to say (a) that the warranty runs for five years from the date of completion of tests. Which is what the employer wants, further, (b) that the warranty automatically expires at latest by a given date (in our example, perhaps 31 December 2001). Which gives the contractor some security. If things go badly, the losses are shared. In summary: The scope, delivery and defects liability provisions of a plant 121

construction contract follow the pattern established for the straightforward purchase contract. The provisions are adapted however, to cope with the time scale and the complexity of the typical construction project.
4. THE EMPLOYER'S DUTIES: PRICE AND PAYMENT

Fixing the price and payment terms for a project that is to run for many years and involves many risks is extremely difficult. What techniques insure that the employer gets a fair deal? The more risks the contractor takes, the higher the contract price is. Skillful pricing shares the risks and lowers the contract price. Payments are made in stages: this is a problem for the accountant rather than for the lawyer. As in simple purchase contracts, the main duties of the employer are found in the price and payment provisions of a construction contract. The time scale and complexity of the project create a number of problems.
4.1. Price of the Contract

The price of plant construction is fixed in one of three ways: 1. Lump-sum price 2. Unit price 3. Cost-Reimbursable price
Lump -sum Price

The lump-sum price is stated in advance as a total for the whole project. This is the normal, familiar method for fixing the price for a job. In calculating this price, the contractor looks at all the risks he is taking in performing the work. The contractor puts a price on each risk and, if possible, adds it to the total contract price. Because they cover so many risks, lump-sum prices are usually high. Obviously, reducing the contractor's risk is one way to reduce the contract price. Two approaches to reducing risk are common; unit price and costreimbursable price. Both are different from the lump-sum price in that they are not fixed in advance for the total project.
Unit Price

Unit prices are agreed prices for certain units of performance, for example: cubic meters of concrete poured, work-hours used in excavation work or in digging a tunnel. With this method of pricing materials, in the construction of a tunnel, for example, no one knows what will happen when tunneling begins. The tunneling contractor needs a large safety margin, so he quotes a high price for a lump-sum contract. The figure for a unit-price contract (price per workhour) is usually lower because it carries no risks for the contractor. The employer, on the other hand, accepts a risk. If the work is quickly done, he 122

saves money. If there are major problems, he loses money. The problem for the employer is obvious. However, if the contractor is paid by the hour, he has no incentive to work quickly. Cost Reimbursable Price
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Cost-reimbursable price is another attempt to avoid the high figures that go with lump-sum quotations. Under this system, the contractor is simply reimbursed for his costs plus an acceptable profit margin. (For this reason, costreimbursable price is often called "cost-plus price"). With this method, in theory at least, the contractor needs no safety margin, and so the final price of the project is perfectly realistic. The danger is obvious. If the price has no ceiling, then the contractor is under no pressure to keep his costs low: No matter what happens, he is paid and his profit increases with his expenditures. To avoid this danger, some contracts include a ceiling price: whatever happens, the price will not exceed $xxx million. This ceiling often defeats the purpose of reimbursable model. In effect, the ceiling price becomes a lump-sum price. If the price goes above the target, the contractor is not paid 100% of his cost. The greater the reimbursable model, the more sophiscater the use of a target price is. This gives the contractor an incentive to hold down costs. Cost-reimbursable contracts usually allow the employer to terminate the contract if costs are unexpectedly high. Termination is not, however, an easy answer. The work must be finished, the new company knows the situation, and it often charges more than the original contractor. 4.2. Payment Payment is not, in general, a problem for the lawyers, though the details are sometimes complicated. The price is usually paid in stages: perhaps 10% of the total as each one-tenth of the work is completed, or installation, and so on. A large contract may involve hundreds of payment events: perhaps tunneling is paid for by the meter, excavation by the hour, the general progress of the works by 10% stages, and the delivery of machines against invoice. With so much to regulate, price and payment provisions are normally long and elaborate. In principle, however, the terms of price and payment in a plant construction contract follow the general pattern explored in earlier. 5. VARIATION A project changes shape as it develops. How does a contract allow for alterations and additions to, as well as deletions from the work? How is the new contract price calculated? And how can the parties guard against major price changes caused by currency fluctuations and inflation? 123

A well drafted contract creates a procedure for changing the scope of the work. It also regulates the necessary adjustments to the contract price. A mechanism for price revisions is necessary when the value of a currency is likely to change or when inflation is necessary when the value of a currency is likely to change or when inflation in one country is likely to upset the balance of the contract. The final shape of a construction project seldom follows the original designs exactly. Let's take the Island marble quarry as an example. The Italians are interested in the project because they want a source of marble in East Asia-export from Europe is uneconomic. A harbor is planned for Island in a small bay. To allow heavily loaded ships to leave the harbor, the contractor must blast a deep channel with dynamite. Unfortunately, a reef of rare coral blocks the entrance to the bay. The Ministry of science and Environment hears about the plan to destroy the reef only days before dynamiting is scheduled, the Ministry immediately forbids the destruction of the coral. The plans must be changed. In another development, half-way through the project, Vietnam Airlines begins a helicopter service to the islands. The plans for the administration building are upgraded to include a helicopter landing pad. Finally, a plan to drill a deep well is abandoned when test drillings produce only salt water. Three variations are now necessary, each one of a different type: 1. Alteration 2. Addition 3. Deletion These variations all require changes to the scope and to the price provisions. The contract (or the general conditions) must establish a mechanism for making such changes. Some of the toughest and most expensive disputes occur when a change is necessary, but the parties did not agree in advance on a mechanism for change. How does such mechanism work? First, does the employer have the right to require major changes in the contract? Some contracts are very clear on this subject:
Variations

The term "variation" as used in this contract means any change in the scope of construction or technical characteristics of the equipment, materials or construction services to be supplied by the Contractor Any variations ordered by the Employer must be implemented by the Contractor in accordance with the provisions of this article

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Although some legal systems refuse to enforce such sweeping provisions, normally such a clause, if the contractor accepts it, is valid and enforceable. Some contracts, perhaps more fairly, allow the contractor the right to raise objections to variations, especially to major variations. (A "major" variation is, typically a variation involving a price adjustment of more than 15% of the contract sum). The employer must consider these objections. If the two parties cannot agree, the matter must go to arbitration. In practice, most contractors are happy to accept alteraticns and additions provided the price of the project is suitably increased. Deletions accompanied by price reductions are, understandably, less popular. How are price changes regulated? Price changes that result from variations in the scope of the contract are often called adjustments. (Adjustments are distinguished from price revisions which are price changes for the work exactly as originally specified).
Price Adjustments

Price adjustments are often calculated on a cost-reimbursable (cost-plus) basis: the contractor receives his costs plus a reasonable profit, as we saw in the last section. The FIDIC Conditions regulate price adjustments carefully. The first step is for the engineer to order the variation. Next, the contractor puts a price on the variation. The engineer now decides whether to carry out the variation or not. If the engineer wants the variation but thinks the contractor's price is too high, the FIDIC Conditions create a procedure for fixing a fair price (FIDIC Condition, 31). It is not necessary to study the details here, but the principle is clear: where scope and price adjustments are regulated in the contract, the parties can usually reach agreement. Where there is no regulation, expensive dispute r quickly arise.
Price Revisions

Price Revisions (i.e., recalculations of price for eactly the same work) are a feature of any contract that runs over a prior of years. Price revisions have two main sources: (a) an increase (or less commonly a decrease) in the price of the materials or services, and (b) a change in currency rates. Where the contractor fears rapid price increases, he will not tender on the basis of a fixed and constant price. He will want price to be indeed. In principle, indexation is simple: if the price of a commodity, for example cement, increases by 10%, then the price calculation exactly reflects this increase. For example, if cement costs accounted for 20% of the original price, then a 10% increase in the cost of cement raises the total contract price by 2%. 125

Problems arise in choosing an indexation procedure acceptable to both parties. What is the source of the indexed? What is the starting date or "zezo-date" for indexation? What exactly is the formula for applying the index? These matters must be specified in the general conditions or negotiated in the contract. Contracts are generally denominated in one currency, perhaps $US. Sometimes the local currency is used to denominate local components of the contract. Because violent currency swings are possible over a period of years, contracts occasionally allow a price revision in line with currency swings. Such clauses are difficult to divise: if an American supplier offers to work for $US 10 million, a revision clause (based on recent changes in the value of the dollar) could' swing his actual price down to $US5 million or up to $US 20 million. This costs within the United States, however, remain much the same, allowing a little for inflation. Most contractors do not want a revision clause, but without one the employer may find himself paying twice as much, or half as much for the project. What is the fair solution? In theory, though seldom in practice, the parties can denominate the contract in a basket of currencies: for example, one quarter US dollars, one quarter Sterling, one quarter Deutsche Marks, and one quarter Yen. Such a tactic evens our the rise or fall of a particular currency. There are two ready-made 'currency baskets": the Special Drawing Rights (SDR's) of the International Monetary Fund and the European Currency Unit (ECU). Both rates are quoted daily. Although few contracts today are denominated in either unit, international practice is slowly changing. To sum up: A plant construction contract cannot be frozen. The needs of a construction site change almost daily and the contract must change accordingly. A well drafted contract sets up mechanisms that allow change with the minimum of friction.
6. TEST AND INSPECTION No employer takes over a plant without a successful take-over test. Unfortunately, many plants fail the take-over test, not once but repeatedly. How can the employer guard against such expensive and time-wasting failure?

Many contracts develop a complex schedule of tests to ensure that machinery meets its specifications in all respects. These tests greatly reduce the risk of a last-minute failure at the point of take-over. The procedure for the final takeover tests requires special drafting. A turnkey contract, at least in theory, requires only one set of tests, performance tests, when everything is ready for take-over. Most contracts, 126

however, add tests for machinery at various stages of manufacture and shipping. What is the purpose of these tests? Aren't the issuance of the TakingOver Certificate and the defects liability provision enough protection for the employer? The chief interest of the employer is a plant that functions correctly on schedule. Any delay, even if the contractor must pay liquidated damages, is costly in terms of wasted time and postponed development. If the plant never works, the employer is left in an intolerable situation. A well constructed series of tests greatly reduces these dangers. What does a test series look like? Let's say, for example, that the Saigon Dock Authority has ordered from a company in Germany a crane for loading and unloading container ships. The contract includes delivery, installation, and start-up. The Authority specifies, perhaps, five tests, as follows: - Test 1 while custom-made crane is being built in Germany - Test 2 when the crane is ready for shipment. - Test 3 when the crane arrives at the point of installation - Test 4 when the crane is installed and ready for take-over - Test 5 One week before the end of the warranty period Testing programs obviously vary from contract to contract. For any given machine, a practical timetable for testing is easy enough to develop. If schedule testing during manufacture is appropriate (or random testing usually on 24 hour notice), the FIDIC Conditions suggest a clear wording for necessary provision:
Inspection and Testing During Manufacture 20.2 The Engineer shall be entitled during manufacture to inspect, examine and test the materials and workmanship and check the progress of manufacture of all Plant to be supplied under the Contract. This shall take place on the contractor's premises during working hours. No such inspection examination or testing shall release the Contractor from any obligation under the Contract... Rejections 21.1. If, as result of the inspection, examination or testing referred to in Clause 20 the Engineer decides that any Plant is defective or otherwise not in accordance with the Contract, he may reject such Plant and shall notify the Contractor thereof immediately. The notice shall state the Engineer's objections and reasons. The Engineer shall not reject any Plant for minor defects which do not affect the commercial operation of such Plant The Contractor shall then with all speed make good the defect or ensure that any rejected Plant complies with the Contract...

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For building works, on-site inspection takes the place of scheduled tests. This kind of day-to-day inspection is performed by the engineer. The contract usually includes the details of inspection procedures in the clause that describes the duties of the engineer or the engineer's representative. The final testing procedure most often occurs immediately before take-over or acceptance. The contract must specify this testing procedure closely. The normal steps are set out: 1. A procedure for naming the day on which the final tests take place. 2. A procedure for continuing tests without the other party (if necessary). 3. A procedure for repeating the tests if the works fail the tests. 4. Consequences of repeated failure of the test.

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7. AN EXAMPLE OF A SUPPLY CONTRACT TO DELIVER AND INSTALL MACHINERY (BILINGUAL):

7.1. The English version of the contract CONTRACT NO 10/NAP7 By and between Name : The Vietnam National Complete Equipment and Technics Import Export Corporation (Technoimport) Address : 16-18 Trang Thi Hanoi/ S.R. Vietnam Telex : 411230 (TECHNO VT) (hereinafter called "the Buyer") on the one hand And Name : Danbrew Ltd. Address : Rahbeks Alle' 21 DK-1801 Frederiksberg C Denmark Telex : 16124 (DBREW DK) (hereinafter called "the Seller") on the other The present contract has been today entered into on the following terms and conditions:

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CONTRACTUAL DOCUMENTS Article 1 Object of the contract and Scope of Supply Article 2 Contractual Documents Article 3 Obligations of the Seller Article 4 Obligations of the Buyer Article 5 Conditions and Time of Delivery Article 6 Packing and Marking Article 7 Prices and Payment Terms Article 8 Penalties for Delivery Delay Article 9 Inspection before Delivery Article 10 Guarantee Article 11 Erection, Performance Test and Acceptance Article 12 Import/Export Licences Article 13 Arbitration and Applicable Law Article 14 Force Majeure Article 15 General Conditions Article 16 Coming Into Force of the contract Article 17 Legal Addresses of the Parties

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Article 1: Object of the contract and scope of supply

1.1. Object of the Contract The object of this Contract is to establish a complete brewery plant with bottling facilities in Nghe An Province, SR Vietnam with the hours/day and 241 working days/year for brewhouse and in accordance with the technical specifications and lists of equipment, spare parts and materials/supplies, etc. specified in the annexes attached to this Contract 1.2. Scope of Supply The Seller undertakes to supply the following: 1.2.1 Processing equipment, auxiliary equipment, fittings and electrical equipment as specified in Annex 3. 1.2.2. Spare parts for two year operation for all the equipment and machines as specified in Annex 4. 1.2.3. Materials and supplies for the first months of operation as specified in Annex 5 1.3. The Seller undertakes to supply all necessary items not mentioned in the above annexes, but needed for normal operation of the plant and to ensure all the guaranteed performances of the plant. 1.4. The Seller shall ensure the supply of spare parts for the plant as needed and at least 10 years from start of the operation of the plant

131

Article 2: Contractual documents

The following 13 annexes are an integral part of the Contract: 1. General process description 2. Specification for the beer 3. List of equipment and machinery 4. Spare parts 5. Materials and supplies 6. List of the Seller's personnel and Buyer's personnel 7. Technical documentation 8. Implementation schedule for delivery, erection, commissioning and operation. 9. Specimen of Letter of Guarantee issued by the Seller's bank 10. List of Buyer's supply 11. List of consumption figures per hl beer 12. Supervision services and training of the Buyer's personnel 13. Buyer's trade mark - Trade mark reference and use

132

Article 3: Obligations of the seller

3.1. The Seller shall be responsible for the project concept, designing and technical documents to be supplied to the Buyer. These documents are specified in Annex 7 and shall be supplied in 5 copies of each kind of document. 3.2. The Seller supplies equipment, materials and spare parts for the project to CIF Danang port as per scope of supply mentioned in Annex 3. 3.3. The Seller shall deliver the equipment, materials and spare parts in conformity with standards and specifications mentioned in Annex 3, to Danang Port on CIF basis as per Article 5 of the present Contract. 3.4. The Seller shall provide all instructions necessary for the construction of the plant building as per Annex 7. 3.5. The Seller shall undertake to conduct and supervise the erection of equipment and to carry out the test run, commissioning and operation of the plant as per Article 11 of the present Contract. 3.6. The Seller shall undertake to train the Buyer's personnel as specified in Annex 6 of the Contract. 3.8. The Seller shall supply to the Buyer without any extra charge equipment or machine parts or carry out replacement or repair, if necessary, in order to complete his obligations, provided that such supply, replacement or repair are not the obligations of the Buyer under this Contract.

133

Article 4: Obligations of the Buyer

The Buyer undertakes: 4.1. To provide the Seller with basic and necessary data and documents related to the plant for the latter's designing and working out of the list of equipment and materials to be responsible for the correctness of the documents 4.2. To apply for import license and other necessary permits for the construction and production of the plant 4.3. To complete the construction of the plant building in conformity with the technical requirements of the plant 4.4. To supply equipment for erection (cranes, scaffolding tackles, etc.), general tools and consumables for erection of the plant delivered by the seller (for welding, grinding, head-cutting, etc.) 4.5. To apply for necessary permits for the Seller's Specialists and their family, if any, to come to Vietnam working for the plant, including entry visa, temporary stay and working permit 4.6. To supply to the Seller, at Seller's request, manpower, materials necessary for erection, the test run and commissioning of the plant as per Annex 10 4.7. To bear transport cost for the equipment, materials and spare parts supplied under the present Contract from Danang to the plant site, including port customs fees

134

Article 5: Conditions and time of delivery

5.1. The Seller shall deliver equipment, materials and spare parts mentioned in Annex 3 and Annex 4 and technical documents mentioned in Annex 7 of the Contract in accordance with the dates mentioned in Annex 8 5.2. Delivery of the equipment materials and spare parts is to be made on the basis of CIF Danang port, SRV (in accordance with the INCOTERMS of 1953, Edition 1990) The Seller shall try to avoid transshipment. If this is impossible, the Seller shall inform the Buyer thereof and make suitable arrangement. The Seller is to bear and pay all costs, fees, taxes and expenses regarding the transportation of the goods to Danang port, SRV. The goods shall be insured from the Seller's warehouse to the Buyer's warehouse at Danang port The vessels carrying the goods supplied under the Contract shall comply with the following conditions: Such vessels have been in use for not more than 15 years or must be classified as first class for ocean going ships by one of the international classification societies as mentioned in the Lloyd's Instute classification clause 1.7.1978 Shipment in containers to be allowed The Seller shall at least two weeks before shipment inform the Buyer by cable or telex of compliance of the vessel with the foregoing and nationality thereof The Seller shall in favour of the Buyer insure the equipment materials and spare parts shipped under the Contract 110% (one hundred and ten per cent) of the CIF contract value in accordance with Lloyd's Institute Cargo Clause (all risks) payable in the currency stated in the Contract with a reputable insurance company 5.3. The equipment shall be delivered with full accessories and spare parts in accordance with the delivery schedule to ensure the erection and testing of the project on time and in the most rapid and rational manner 5.4. The date of the relevant clean on board Bill of Lading is considered as the delivery date of the goods. In case of airfreight of the technical documents the airway bill will replace the ocean Bill of Lading and the date of the airway bill is considered as delivery date for technical documentation 135

5.5. The Seller shall notify the Buyer by cable or telex 10 (ten) days prior to shipment of the goods. The contents of notification shall be as follows" - Contract number - Port of shipment - Scheduled delivery date - Value of the goods to be shipped - Number of cases and/or containers - Total gross weight - Total volume - Other information and/or instructions The contents of the above cable or telex shall be confirmed by registered letter within 10 (ten) days after dispatching of the cable or telex 5.6. The Seller shall notify the Buyer by cable or telex of the shipment within 5 (five) days after the sailing date of the vessel from the port of shipment The contents of such cable or telex notification shall be as follows: - Contract number Confirmation and/or variation, if any, of the telex under paragraph 5.5 - Item number of equipment and materials shipped in accordance with Annex 3 - Number of cases and/or containers - Total net/gross weight in kg of each container or case - Total volume in m 3 - Note concerning the cases of over-dimensioned and over-weighed equipment such as from 10 (ten) tons and more in weight and/or from 10 (ten) meters in length and/ or from 3.2 meters in height and/or from 2-8 meters in width. - Total value of the goods delivered - Date and number of Bill of Lading The above mentioned cable or telex notifications shall be confirmed by registered airway letter which shall be sent to the Buyer within 3 (three) days after the date of dispatching the cable or telex 136

5.7. Within 10 (ten) days after the sailing date of the vessel the Seller shall send to the Buyer's address by courier service the following documents: - Commercial invoice: - Clean on board Bill of Lading: - Packing list: - Inspection report: - Certificate of Quality: - Certificate of Quantity: 4 copies 4 copies 4 copies 3 copies 3 copies 3 copies

Besides one set of packing lists, kept in a strong and waterproof envelope, shall be sent through the captain of the vessel 5.8. In case of delivery by air the Seller shall inform the Buyer by cable or telex 10 (ten) days before dispatching the goods of the number of Contract, the expected delivery date, place of dispatching, description of the relevant goods and its quantity 5.9. The Seller undertakes to advice the buyer by cable or telex on the same day of dispatching of the relevant goods the following: - Number and date of Contract - Number and date of airway bill - Name of air transport company and flight number - Description of the goods - Number of cases - Net/gross weight The Seller shall send to the Buyer, together with the goods, all necessary transport documents such as copy of airway bill and packing list to ensure a safe receipt of the goods at the airport of destination 5.10. The Seller shall be responsible for any damage and/or any additional expenses caused by the absence of the above mentioned notification. 5.11. All expenses related to the notification as well to obtaining and dispatching of all documents as mentioned in this Contract shall be borne by the Seller 5.12. On deck storage shall be allowed for items which according to international commercial customs are not or cannot be stowed under deck 137

5.13. After the arrival of the goods at the port of destination the Buyer has the right to entrust the inspection of quantity and/or quality to the "Vietnam Superintendence and Inspection Company VINACONTROL" with respect to the goods the packing of which is damaged or defective. This inspection shall be done by. VINACONTROL itself A report thereof shall be issued by VINACONTROL as an evidence for making a claim against the Seller A Seller's representative can be present at the inspection. In case there are damages and losses of the goods during the transportation, loading and unloading which are not imputable to the Seller. The Buyer, in the period of insurance, shall invite VINACONTROL to inspect the said goods and supply the Seller with claim documents concerned enables him to make claim against the carrier or insurance company and to re-supply at his own expenses. The Buyer with the replacement goods on the conditions stipulated in his Contract within 6 (six) months from the date of receipt of claim documents supplied by the Buyer Claim documents shall consist of: - COR (Cargo Outturn Report) - ROROC (Report on Receipt of Cargo) - Survey report - Bill of Lading - Packing list - Other necessary documents

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Article 6: Packing and marking 6.1. The equipment and spare parts are to be shipped in export sea packing covering the requirements of each particular type of equipment and climatic conditions in the SR Vietnam 6.2. The packing is to secure full safety of the goods from any kind of damage and corrosion during transportation by sea, railway and combined transport taking into account transshipment, if any, during transportation and proper long storage conditions in the SRV (with maximum time of 10 months) 6.3. The packing shall be suitable for bring loading by crane, autocars, trucks and manually in so far as the weight and volume of individual packages allow 6.4. Before packing all machine parts of equipment and spare parts are to be protected with anti-corrosion coasting to prevent them from any damage and corrosion in transportation and to ensure a 10 months time storage in the Buyer's country 6.5. The Seller shall be responsible for any damage or breakage of the goods that is caused by initially poor packing or for corrosion which is due to initially improper or insufficient coating 6.6. Every case or crate is not to exceed the following dimensions: - Length: 10,000 mm - Width: 3,000 mm - Height: 3,200 mm In any case weight is not to exceed 20 tons for each container or case; in case of containers the dimensions of the same will be standard ones of 20 feet 6.7. Tubes, pipes and sectional steel or similar materials which due to international practice could be delivered without packing shall be bundled tightly according to sizes in order to avoid breaking during transportation, transshipment and confusion upon arrival at the plant site in Vietnam 6.8. The packing list will contain the following information: - Contract number - Item number (according to Annex 3) - Weight (net/gross)

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- Case dimensions in cm - Name of Consignor and Consignee 6.9. The cases in which the equipment and spare parts are packed are to be marked on 4 sides: on the top of the case and on 3 adjacent sides. 6.10. The marking shall be clearly made with black indelible paint in English as follows: (Words and figures not less than 10 cm in size if the dimensions of the package permits). - Consignee: TECHNOIMPORT HANOI S.R. Vietnam - Contract No.: - Net/gross weight in kg: - Volume in m3 : - Case dimensions in cm: - Case number: - Item number (according to Annex 3): - Consignor: DANBREW/DAN - Port of shipment: - Port of destination Port of Danang S.R Vietnam 10/NA/P7 TECH/DAN

- Transport mark: The same marking will be applied to airfreight

6.11. All cases which need special handling must have and additional marking: "With care", "Top", "Do not turn over" as well as other indications if specified handing or a particular case is required such as sling point and center of gravity 6.12. A waterproof envelope containing a copy of the packing list shall be fastened to the external side of each case. The envelope is to be covered with a metal plate which is either nailed to the case or firmly fixed to the metal part of the equipment. Another copy of the packing list is to be put into the case together with the equipment 6.13. The Seller is responsible for additional transport and storage expenses as well as for damage to the goods due to the despatch of the equipment to wrong address caused by the initially insufficient or incorrect marking 140

Article 7: Prices and payment terms 7.1. The total value of the Contract is as follows: Equipment, spare parts Documentation materials Supervision and training Freight and insurance Grand total price D E M x,000,00 D E M xxx,000 D E M xxx,000 D E M x,000,000

7.2. The above grand total price is understood CIF Danang port S.R. Vietnam and its firms and not subject to any alteration. 7.2.1. Packing will be made in 20 foot one-way containers except big items which cannot be put into the containers. 7.3. Price list Item No
1.0 Malt handling equipment

Price D E M xx,000

1.1 Malt mill 1.2 Malt grit bin, elevators, conveyors 1.3 Dedusting and cleaning system 1.4 Control panel 1.5 Rice mill and handling equipment supplied by the Buyer 2.0 Brwewhouse D E M xxx,000
2.1 Mash/Wort kettle 2.2 Adjunct kettle 2.3 Lauter tun 2.4 Whirlpool 2.5 Hot water tank 2.6 Pump, pipes and fittings 2.7 Control panel

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Item No 3.0 Wort handling 3.1 Wort cooler 3.2 Wort aeration 4.0 CIP station 4.1 Hot CIP plant 4.2 Cold CIP plant 5.0 Fermenters

Price D E M xx,000

D E M xx,000

D E M xxx,000

5.1 9 x Cylindro-conical fermenting/storage tanks 5.2 Temperature control system 6.0 Yeast storage tanks 6.1 2 x Yeast storage tanks 6.2 Yeast pump 7.0 Filter plant 7.1 Filtration pump 7.2 Kieselguhr filter 7.3 Trap filter 8.0 Bright beer tanks 8.1 2 x Bright beer tanks 8.2 Temperature control system 9.0 Bottling line 9.1 Crate conveyor 9.2 De-packing table 9.3 Bottle conveyor 9.4. Bottle washer 9.5 Bottle filler/crowner 9.6 Pasteurizer 9.7 Labelling machine 9.8 Packing table 142 D E M x,000,000 D E M xxx,000 D E M xx,000 D E M xx,000

Item No 9.9 Inspection 9.10 Lubrication 9.11 Control system 9.12 Production control 10.0 Utility plant: 10.1 Cooling plan 10.2 Compressed air dryer 10.3 CO2 recovery plant 10.4 Steam boiler plant 10.5 30 cylinders filled with argon gas 11.0 Process, mechanical and electrical installations 11.1 Pipes, pump, fitting, etc. 11.2 Main switchboard and cables 12.0 Laboratory equipment 13.0 Spare parts 14.0 Raw materials 15.0 Packing one-way containers Total FOB price, brought forward to page Carried forward from page Supervision/Commissioning Insurance Grand total CIF Danang port 7.4 Payment Terms

Price

D E M xxx,000 D E M xx,000 D E M xxx,000 D E M xxx,000 Free of charge D E M xxx,000

D E M xx,000 D E M xxx,000 D E M xxx,000 D E M xx,000 D E M x,000,000 D E M x,000,000 D E M xxx,000 D E M xx,000 D E M x,000,000

Payment for the grand total price as stipulated in article 7.1 shall be effected as follows: 7.4.1 Down payment of 15% (fifteen per cent) of the grand total price, 143

amounting to DEM xxx,000 will be paid by T.T. remittance within 60 days from the signing of the Contract against Seller's presentation of the following documents: a. The Seller's original invoice in 5 copies b. An irrevocable Bank Guarantee as per Annex 9-issued by the Seller's Bank-in favour of the Buyer 7.4.2 For 85% (eighty-five per cent) of the grand total price, amounting to DEM x,000,000, the Buyer shall arrange that the Bank of Foreign Trade of Vietnam (Vietcombank) issues an irrevocable Letter of Credit payable at sight in favour of the Seller, confirmed by the Seller's bank within 60 days (sixty days) from the date of signing the Contract. The said Letter of Credit shall be advised by telex on cable (full wording) to the Seller's bank The Letter of Credit shall be valid as follows: 75% (seventy-five per cent) of the grand total price, amounting to DEM x,xxx,000, until 18 months after opening of the Letter of Credit 10% ten per cent) of the grand total price, amounting to DEM xxx,000, until 18 months after opening of the Letter of Credit 7.4.3 The payment of the above total amount shall be made as follows: 75% (seventy five per cent) of invoice amount of each shipment, i.e. not exceeding DEM x,xxx,000 payable against presentation of the following shipping documents: 1. Signed commercial invoice, 2 originals and 2 copies 2. Clean shipped on board Bill of Lading marked "Freight prepaid" made to order and blank endorsed full set of originals and 2 copies 3. Packing lists, 3 originals and 2 copies 4. Inspection report issued by the Seller, 3 originals and 2 copies 5. Certificate of Quality issued by the Seller, 3 originals and 2 copies . 6. Insurance policy or certificate in duplicate endorsed in blank for 110% of the CIF value in accordance with Lloyd's Institute Cargo clause (all risks) showing claims payable in the same currency as the Letter of Credit 7. Copy of Seller's Notice of Shipment, 3 copies
144

10% (ten per cent) of the grand total price, amounting to DEM xxx,000 payable after commissioning of the plant against presentation of 1. Signed commercial invoice 2 originals and 2 copies 2. Acceptance Certificate confirming commissioning has taken place signed by representatives of Buyer and Seller However in any event this instalment shall be available to beneficiaries 17 months from opening of the Letter of Credit: 1. Signed commercial invoice in 2 originals and 2 copies 2. Beneficiaries simple receipt 7.5 The seller shall within 30 days from the signing of the Contract obtain an irrevocable Bank Guarantee Securing the 15% down payment as per article 7.4.1. The Bank Guarantee is to be issued by the Seller's bank with the Content as Annex 9 of this Contract 7.6 All expenses charges and commissions in Vietnam will be borne by the Buyer. All banking charges and commissions outside Vietnam shall be borne by the Seller All expenses and charges related to any prolongation and/or modification of the above mentioned Letter of Credit shall be borne by the faulty part

145

Article 8: Penalties for delivery delay

8.1 Should the Seller, due to reasons solely imputable to him, fail to deliver all kinds of equipment, materials and spare parts on the dates stipulated in the delivery schedule (Annex 3) the Seller is to pay to the Buyer liquidated damages for delivery delay as follows: At the rate 0.5% for each full week of delay from the end of the expected delivery date stipulated in the delivery schedule. The total sum of liquidated damages for the equipment, materials and spare parts shall, however, not exceed 5.5% of the value of the equipment and/or materials delayed 8.2 The above rates of the liquidated damages are not to be reduced or increased by arbitration 8.3 The liquidated damages will be paid by the Seller against the Buyer's invoice within two months after receipt thereof 8.4 The Seller is not to be relieved from his obligations stipulated in the present Contract by paying the agreed and liquidated damages 8.5 If for reasons solely imputable to the Seller the delivery of equipment, materials and spare parts is delayed by more than 3 months, the contractual parties shall have to find out the measures to be taken for the continuation of the Contract within one month from the last date of the 3 months

146

Article 9: Inspection before delivery

9.1 The Seller shall carry out at his expenses the inspection of the equipment at his or his sub-contractors works 9.2 The Seller shall issue the inspection report confirming that the equipment has been manufactured in strict conformity with the terms and conditions of the Contract and according to metric systems 9.3 Prior to shipment the Seller is to make the control assembly and the check of the mechanical function of the most essential equipment. Should any machine or unit be shipped in a dismantled state the Seller is to supply, together with the equipment, at his expenses all special means and facilities to assemble the equipment at the plant site under the supervision of the Seller's Chief Erector 9.4 Final tests and acceptance of the equipment for operation are to be made at the plant site in Vietnam in accordance with Article 11

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Article 10: Guarantee 10.1 The Seller guarantees: 10.1.1 That the supplied equipment and technical documentation will ensure the achievement of the guaranteed performance as stated in this Contract 10.1.2 That the supplied equipment and technical documentation as well as automation and mechanization of the production process will be of the latest world technical achievements for this particular type of the plant which will be available to the Seller at the time of delivery 10.1.3 That the materials used for manufacture of equipment and spare parts, workmanship thereof as well as technical execution and assembly must be of high quality 10.1.4. That the supplied equipment and spare parts are brand new and are manufactured in full conformity with the description, technical specifications and conditions of the present Contract and is so proven in commercial operation of the plant 10.2 If, after the fulfilment of the technical documentation or during the manufacture of the plant equipment a technical modification or improvements become known and available to the Seller, the Seller shall submit to the Buyer free of charge the comprehensive technical documentation and supply these in manufacture after receiving the Buyer's written consent 10.3 The guarantee period for the plant, provided that all operating manuals and all instructions supplied as stipulated in this Contract are observed, shall be 12 months from the date of signing Performance Acceptance Certificate but not later than 20 months from the date of last shipment This period will be extended accordingly if the plant operation has been stopped due to the Seller's fault 10.4 If during the guarantee period for the plant any equipment proves to have any defects or to be incomplete, wholly or partly, or if it is not made in accordance with the terms and conditions of the Contr,1 :t during the test run of the equipment, the Seller undertakes, at the Buyer's request, to eliminate the detected defects without any delay 148

within a reasonable period agreed upon between the parties for such elimination and without any additional payment on the Buyer's party. The Seller is to revise or replace the technical documentation and/or repair or replace, at the Seller's cost, the defective or incorrect machines, equipment or spare parts thereof 10.5 All expenses related to delivery of the relevant machines, equipment or spare parts for such replacement on delivery basic of CIF Danang shall be borne by the Seller, the guarantee period for the replaced or repaired machines, equipment or spare parts is 12 months from the date of start of operation The defective machines, equipment or spare parts replacement by new one (s) may be sent back to the Seller if he requests at this expenses on CIF Danang basic within the time agreed on by the parties 10.6 If the Seller fails to eliminate the defects claimed by the Buyer, as referred to in paragraph 10.4, the Buyer has the right to eliminate these defects by himself, at the Seller's expenses, without releasing the Seller from his obligations concerning the guarantee mentioned in this Article. In this case, the Seller is to cover actual expenses for repairs. Any small defects, the elimination of which is urgent and does not require the presence of the Seller will be removed by the Buyer and notified to the Seller by cable or telex and actual expenses will be charged to the Seller's account 10.7 If the defects as per Article 10.4 cannot be removed for the Seller's fault, the Buyer has the right to request the Seller to replace a machine or a piece of equipment or spare parts at the Seller's expenses on the condition of CIF Danang 10.8 The Seller guarantees that: a. The total production capacity will be 30,000 hl/year which will materialize as: - 50 hl brew batches, brewed 3 times/day, 240 days/year - Fermentation and storage in 175 hl (gross) combi-tanks - Filling in bottles in one shift (6,000bph, nominal capacity) b. Product: international standard Lager beer (Pillsner type), 12 P, 4% alcohol w/w, bitterness approx. 21 IBU, in normal conditions of operation Production consumption as pet Annex 11 149

10.9 In case the performance test is unsuccessful, the Seller is responsible to repeat the test within 15 days. If the repeated test is also unsuccessful a penalty of 0.75% of the total contract value for each full percentage of the plant capacity below the guaranteed production capacity for a full week shall be supplied. In the meantime the performance test has to be repeated until the guaranteed capacity is achieved. The aggregate of liquidated damages for delayed delivery (clause 8.1) plus penalty for unsuccessful performance (clause 10.9) shall in any case not exceed 5.5% of the grand total contract price. 10.10 In case of reasons imputable to the Seller the capacity of the plant will be lower than 94% of the guaranteed production capacity after the repeated .performance test run, the Seller shall, at his own expenses, modify, repair and/or replace the equipment or spare parts concerned by suitable means within a period of 60 days in order to obtain the guaranteed capacity. If the guaranteed capacity cannot be obtained, both parties will meet each other to settle this matter In case the parties cannot come to an agreement, this dispute will be submitted for arbitration as per Article 13 of this Contract. 10.11 During operation if there is any part of equipment or machine which is not specified in this Contract necessary for operation of the plant, the Seller shall, at his cost, send them to the plant site within 60 days from the receipt of the Buyer's notification 10.12 The Seller shall undertake to supply any part, equipment or machines or spare parts at the Buyer's request and cost after the guarantee period 10.13 The Seller guarantees that auxiliary equipment, electrical equipment and spare parts supplied under this contract are complete and in conformity with the operation and maintenance of the complete plant supplied under this Contract. 10.14 In case of claim the buyer can notify the Seller at the latest within 45 days after the end of the guarantee period provided that the defect arise during the guarantee period. 10.15 Upon termination of the guarantee period the Buyer shall issue a letter confirming the termination of the guarantee period.

150

Article 11: Erection, performance test and acceptance

11.1 Erection 11.1.1 Before erection packages shall be opened for checking with the presence of the Buyer and the Seller's Site Managers. In case of components mentioned in the packing lists are found missing or damaged, a report signed by the Buyer's and the Seller's Managers shall be prepared, also giving a detailed description of the packing at the time of checking. 11.1.2 If, according to the above report, say, components are found damaged and/or omitted and the packing is in good condition, bear no signs of having been opened then the Seller shall repair or deliver free of charge CIF Danang port the replacement and/or supplement components as soon as possible. 11.1.3 In case of missing and/or damaged components caused by the Buyer's side, then the Buyer and the Seller shall make an agreement on the condition of delivery or replacement(s) and the terms of payment thereof. 11.1.4 The Buyer undertakes to clear and transport, at his own expense, all machinery, equipment and spare parts from Danang port of Vietnam to the erection site and provide all facilities, manpower and whatsoever necessary to carry out the erection of machinery and equipment. 11.1.5 The erection of all the equipment supplied by the Seller shall be carried out by the Buyer's personnel under the supervision and technical instruction of the Seller's technical personnel (according to Annex 6) in accordance with the manufacturing design, drawing, specification, instruction manual, all supplied by the Seller and/or given by the Seller's personnel. The two site managers shall agree upon a time schedule for all erection work as well as for no-load running test of the machines and the whole plant. 11.2 Performance Test Within 7 days from the completion of crectio,i, which is to be certified by the two Site Manages, the Buyer will provide all facilities, manpower, raw 151

materials, etc, according to the Seller's written request two months in advance so that the performance test of individual or group of machines can be carried out by the Seller's personnel as follows: 11.2.1 Capacity Test Each machine or group of machines will run with a load continuously for 7.5 hours/day for two consecutive days under the technical conditions as indicated in Annex 3 in order to prove that the average hourly production is not lower than the one specified in Article 10.8 for the relevant machine(s) In case the guaranteed production capacity as indicated in Article 10.8 could not be achieved, the capacity test shall be repeated by Seller's personnel and at the Sellers' costs and expenses 11.2.2 Mechanical Test All the machinery of the plant will be loaded and run with load simultaneously for 12 hours/day for 6 consecutive days under the technical condition , as indicated in Annex 1 to prove the mechanical efficiency of the machinery 11.2.3 Should one or more machines fail to accomplish with the guaranteed performance due to the defects of machinery the Scller undertakes to replace at his own cost the defective parts or machine(s) in order to finally obtain the guaranteed performance of the production capacity

152

Article 12: Import/export licences

12.1 The Seller shall at his expenses and risks obtain, in due time, from respective committees of origin any necessary export license for exportation to and utilization in SRV of the plant equipment, materials, spare parts, technical documents and replacements, if any, and for the purpose of the Seller's obligations of the Contract in general 12.2 All necessary export licences for the shipment shall be submitted by the Seller to the Buyer within 30 days after the effective date of the Contract In case export licence is not necessary for exportation to SRV of the plant equipment, materials, spare parts, technical documents, replacement parts instead of licence, the Seller shall submit to the Buyer a letter stating that export licence is not necessary for the shipments 12.3 The validity of the export licence shall be longer than the time of the Seller's obligations under this Contract by at least 60 days. The Seller shall at his own expenses and risks prolong the validity of such export licence by the time of any delay occurred in the execution of this Contract 12.4 The Seller is to bear and pay all export duties and/or charges being imposed outside SRV whether these are prevailing at the time of signing the contract or an being levied on the exported plant equipment, materials, spare parts technical documents, replacement parts, if any, as a result of a new law and/or order and/or statutory instrument and the like issued by the government or any other authority outside SRV without any interference from the part of the Buyer 12.5 The Buyer shall at his own expenses and risks obtain any import licence required by the authority in SRV both for importation of all plant equipment materials spare parts technical documents and replacement parts, if any and for the purpose of the Contract in genera) 12.6 The validity of the import licence shall be longer than the time of execution of the Buyer's obligations under this Contract by at least 60 153

days. The Buyer shall, at his own expenses and risks prolong the validity of this import licence by the time of any delay occurred ir ' 1 execution of this Contract 12.7 The Buyer is to bear and pay all customs and import duties, fees and/or any other charges being imposed in SRV whether these are prevailing at the time of signing the Contract or are being levied on the importation of the plant equipment materials, spare parts, technical documents and replacement and the like issued by the government or any other authority in SRV without any interference from the part of the Seller

154

Article 13: Arbitration and applicable law

13.1 If any time, any dispute or difference should arise from or in connection with the present Contract either party shall give to the other a written notice of the existence of such dispute or difference. The parties, after having received such written notice, shall in principle try to settle the dispute or difference amicably by mutual consultation in good faith and in good measures. If an amicable settlement cannot be reached between the Seller and the Buyer, the dispute or difference shall be submitted to an arbitration of the International Chamber of Commerce in Paris in force on lst June, 20 The arbitration body shall be composed of 3 Arbitrators, two of them shall be respectively selected by each of the contracting parties, and the third Arbitrator (umpire), acting as Chairman of the Court, be selected by a joint decision of the arbitration of the two contracting parties The Umpire shall be of the nationality other than the contracting parties and of the nationality of a country having diplomatic relations with contries of both contracting parties The party who desires to refer the dispute or difference to arbitration shall notify the other party about the decision by a registered letter stating the name and address of the subject of the dispute, date and number of the Contract The other party shall if not otherwise agreed, in writing within 4 weeks from the date of dispatching of the above said letter appoint his Arbitrator who may also be the citizen of any country and shall, by registered letter, notify the first party about the name and address of the Arbitrator appointed by him Should the party who has received the notification of the dispute or difference being referred to arbitration fail to appoint the second Arbitrator within indicated period or should two Arbitrators of contracting parties fail to appoint the third Arbitrator (umpire) within 4 weeks from the date after the designation of the second Arbitrator, then those Anbitraters, at the request of the parties concerned, shall be appointed by the President of the International Chamber of Commerce in Paris, France 13.2 The award of the arbitration court shall be decided by majority vote as fast as after the Umpire has been chosen or appointed in accordance with the conditions of the paragraph on the basis and in accordance with the terms 155

and conditions of the present Contract and in case of absence of stipulations there in the French substantive law shall govern 13.3 Unless otherwise agreed any arbitration is to take place in Paris, France. The arbitration shall be conducted in English 13.4 The award of the arbitration court shall be final and binding on the parties. The expenses connected with the arbitration shall be borne according to the award of the arbitration court 13.5 The dispute or difference brought to arbitration does not suspend the performance by both contracting parties

156

Article 14: Force majeure

14.1 All occurrences and circumstances which happen after the present Contract has come into force and which are due to unforeseen and unavoidable facts of an extraordinary character beyond the will and the control of the parties hereto and directly as much affect the execution of the obligations under the present Contract are to be considered as cases of force majeure. In the frame of the above mentioned the case of force majeure are e.g: hostilities or war whether declared or not, earthquake, fire, flood, strong storms, explosions, epidemics, general strikes and/or other strikes officially organized by the Trade Union of the industrial branch concerned and other natural disasters The following cases shall not be considered as cases of force majeure: technical accidents in fabrication (rejection of defective casting, rectification after the defect), shortage of personnel, of raw materials, of means of transport and of energy, delay and/or failure of the Seller's sub-contractors, the local strikes not organized by the above mentioned Trade Union, breakdown and stoppage of the work 14.2 The party claiming relief from performance of an obligation under the present Contract due to force majeure shall notify the other party thereof by cable or telex immediately but not more than 10 days after the beginning and cessation of force majeure. This cable or telex notification containing proof of the occurrences, nature of such circumstances and their commencement and termination date. Consequences shall be confirmed by registered airmail letter within 10 days after the date of dispatching of the said cable or telex. Such letter shall be certified by a relevant Chamber of Commerce (and Industry) attesting the existence, duration and correctness of the notified circumstances 14.3 At any time during the continuance of the present Contract, if either party is unable to perform totally or partially any obligation under this Contract because of any circumstances of force majeure as defined herein above and said force majeure has been notified correctly as agreed upon, the party claiming relief from performance of their obligations under this Contract due to force majeure shall be excused for delays in their performance of the obligations and shall automatically be extended for a period equivalent to the period of the delay caused by the force majeure 157

14.4 If the formalities mentioned paragraph 14.2 are not observed, the months claiming to be affected by force majeure shall forfeit his right to claim relief from performance of his obligations due to said force majeure 14.5 If the said force majeure continues for more than 3 consecutive months, then both contracting parties shall during the 4th month confer with one another and decide the steps to be taken in order to prevent further delays 14.6. In the event of no agreement is reached between both contracting parties within that month or if due to force majeure the delay continues more than 5 months the two parties shall meet again in order to find out a final solution

158

Article 15: General conditions

15.1 All Annexes mentioned in and attached to the present Contract are integral parts of this Contract 15.2 All amendments and addenda to the Contract are valid only when in writing and signed by both contracting parties 15.3 The Seller warrants to the Buyer that he is in the possession of complete rights for relevant patents and inventions for the equipment technical documents, technological processes, knowledge and experiences to submit them at the Buyer's disposal so that the subject of the control should be freely used for the purpose intended that third parties did not include any organization or individual of the SRV Vietnam In case any claim is made lay third parties upon the Buyer or his Clients in SRV Vietnam based on such infringement the Buyer shall immediately notify the Seller of such a claim and the Seller shall at his expenses and risk take measures to settle this claim 15.4 After signing the Contract all previous verbal and written agreements are nul and void 15.5 All taxes and other duties due to performance of this Contract shall be borne by the Buyer if incurred in Vietnam and shall be at the Seller's charges if incurred in other countries 15.6 Any claim arising from implementation of this Contract can only take place after coming into force of this Contract 15.7 All claims under the present Contract shall be made in writing and sent by registered airmail letter. The date of such registration at the post office shall be considered as the date of introduction of such claims. The reply to such claims shall be given immediately not later than 30 days after the receipt. In urgent cases the claims should be done by cable or telex and be confirmed in written form as outlined in this paragraph 15.8 The Seller and his Specialists shall keep in secret all drawings data information furnished or given by the Buyer and/or taken by themselves during their stay in the Buyer's country The Seller and his Specialists shall not have the right to divulge the drawings 159

data, information and documents (including the content of this Contract) connected with this object to any third party. However, the authorities and banks concerned shall not be considered as third party The Buyer and his personnel shall not have the right to divulge the drawings data, information and documents (including the content of this Contract) connected with this object to any third party. However, the authorities and banks shall not be considered as third party 15.9 The Seller shall be liable for loss and damage to property other than the contracted plant as well as for Specialists injury, including death caused by negligence of the Seller's Specialists within the scope of his public liability insurance which depends on the concrete cases 15.10 The Seller shall not be responsible for any indirect losses

160

Article 16: Coming into fore of the contract

The Contract is subject to both Buyer's and Seller's confirmation within 40 days from signing of the Contract The Contract comes into force when the Seller has received both the 15% down payment and the Letter of Credit

161

Article 17: Legal addresses of the parties

17.1. The legal address of the Buyer is: Vietnam National Complete Equipment and Technics Import Export Corporation (TECHNOIMPORT) 16-18 Trang Thi Hanoi S.R Vietnam Phone No: 53776,54974 Telex No: 411230 (TECHNOIMPORT) 17.2. The legal address of the Seller is: Danbrew Ltd. Rahbeks Alle'21 DK - 1801 Frederiksgerg C Denmark Phone No: + 45 31 21 9 18 Telex No: 16124 (DBREW DK) This Contract is made in four copies, three for the Buyer and one for the Seller. Signed in Hue on 10-8-20... For the Seller: For the Buyer: (signed) O.Danbrew. (signed) Le Vuong.

162

ANNEX 1 GENERAL PROCESS DESCRIPTION

Product:

The beer to be produced is Lager type beer of 12 P Rice, 30% Hop pellets

Raw materials: Malt, 70%

Consumption
For one batch of 50h1 cold wort the following amount of raw materials is consumed: Mail (76% extract as is) : 600.0kg Rice (80% extract as is) : 250.0kg Hops (7% acid as is) : 4.6kg 50kg malt and 250kg rice are milled in the rice mill and mixed, with 12.5 hl water in the rice kettle at 50 C. The content is heated to 75 C and a pause of 10 min, is kept, then the content is heated to 100 C and boiled for 30min In the meantime 550kg malt is milled through the malt mill and mashed in the wort/mash kettle with 17.5 hl water at 47 C. The content from the rice kettle is now pumped to the wort/mash kettle and the temperature of the mixture is thereby increased to 67 C. This temperature is kept for 6 min and the mash is then heated to 76 C and kept for 5-10 min until negative iodine reaction The total mash is transferred to the lauter tun where the clean wort is separated from the spent grains. After drawing off the first wort the grains are now sparged with water of 76 until the gravity in the wort kettle is around 10 11 P. Total amount in the wort kettle should be around 55 - 58 hl. During sparging the heating up of the wort kettle has been started and when the kettle is full the temperature is 100 C The hops are added boiling continuously for approx 90 min. Until the gravity is 12 - 12.5 P. The spent grains from the lauter tun is emptied in a small trolley and thereafter sold to the farmers as cattle feed When the wort boiling is completed the wort is pumped to the whirlpool where the hot trub is separated

163

After 30 min. rest in the whirlpool the wort is pumped through the wort cooler from 94 to 10 C in one hour. The cold wort is aerated by approx. 35 ml air/ itre wort. The aerated wort is sent to one of the fermented (combinetanks) which can contain 3 brews, i. e. 150 hl net. With the first brew to a tank all the yeast required for three brews is injected, i. e. 150 litres. The yeast is kept in two yeast storage tanks with cooling jackets and agitators and can be reused up to 10 times. Each time the yeast is used in a fermented the amount doubles. The excess yeast can be treated with 2% propionic acid and sold to the farmers as pigs' feed The wort now in the fermented will start fermenting and the temperature is allowed to increase to about 16 C and the pressure to 1.3 - 1.5 bar where it is then kept automatically. After 4 days the beer is end-fermented. It is then kept for 48 hours at 16 C in order to reduce the diacetyl to less than 0.15ppm (mg per kg) before cooling down in the tank till -1 C is initiated. As soon as the cooling is started the yeast will sediment and it is then immediately taken out and pumped to one of the two yeast storage tanks. When the beer in the fermented has reached -1 C it is kept there for 1-2 days. Before the beer is pumped to the kieselguhr filter, the final sediment in the tank, approx. 1 hl, is drained. The beer filtration takes place in a kieselguhr filter and a trap filter. The beer is checked for taste and CO2 before it is released for filtration The filtered beer is lead to the two bright beer tanks into which it is filled under CO2 counterpressure of 1.2 bar. When the beer has been tested for CO2 taste and turbidity it is released for filling The filling line comprises equipment for filling of bottles. The bottling equipment is suitable for handling of 0.51tr. returnable bottles with a nominal capacity of 6,000bph Returned bottles are manually unpacked and then conveyed to the automatic bottle washer where they are cleaned with caustic soda and water The cleaned bottles are visually inspected and then sent to the filler/crowner where the beer is filling in and the crown cork applied. The full bottles are now sent to the tunnel pasteurized where the beer is gently pasteurized The bottles out of the pasteurizer are inspected for any leakage before they are conveyed to the labelling machine where a body label is applied. The labelled bottles are now manually packed in crates and sent to the full bottles warehouse.

164

Sanitation The brewing equipment is cleaned by a CIP plant using recovered water for first rinse and caustic soda and acid for cleaning following by clean water rinse Utilities Water of good quality is available from the town supply and the main line to be the brewery and in the brewery will be local supply A hot water tank is included for recovery of hot water from the wort cooling The cooling plant comprises two NH3 compressors which via a heat exchanger produce glycol water of -4C to -5 C which is then used for wort cooling, yeast storage tank cooling and fermenting tank cooling The steam is generated in a steam generator and supplies the brewhouse, the filling line and the CIP plant Compressed air is generated by an air compressor and is used for wort aeration, emptying of fermenters and for automatic valves CO2 recovery is included and it will be possible to recover 60 tons CO 2 per year of which 20-30 tons will be consumed by the brewery whereas the rest can be sold for various purposes, i. e. welding and soft drinks carbonation Power is available from the authorities as 3 x380 V + 0 + earth and the brewery will be equipment with a main distribution board with fuses and breaks as well as local operation panels for each department The automation is based on manual operation of the brewhouse and beer processing but automatic temperature control for brew vessels, wort cooler and fermented The cooling plant, steam plant, air compressor and CO 2 recovery plant are all fully automatic For the filling line each machine is automatically regulated for temperature control and stops. Laboratory Equipment The most basic equipment is included like CO2 Gehaltemeter, hazemeter, platometers, thermometers, pH meter and various glassware and alcohol testing equipment

165

ANNEX 2

SPECIFICATION FOR THE BEER

Original extract, P Real degree of fermentation, % Colour, EBC pH Bitterness Haze at arrival, EBC VDK, ppm CO2 , w/w Alcohol, w/w

: : : : : : : : :

12.0 + /-0.2 67 + /-3 7 + /-1 4.2 + /-0.2 21 + /-3 0.7 _. 0.15 0.50 + /-0.03 4.0 + /-0.2

166

ANNEX 3

LIST OF EQUIPMENT AND MACHINERY

1.0 Malt Handling System


1.1 Malt mil 1.2 Malt grits bin. Elevators and conveyors 1.3 Dedusting and cleaning system 1.4 Control panel 1.5 Rice mill and handing.

Origin BRD DK DK DK
DK

Description 4 roller malt mill, 600/800 kg/h Grits bin, 800kg, milt steel Elevators, 1,000kg/h, mild steel. Malt pre-cleaner, ventilator and cyclone, mild steel.
With pushbuttons for start/stop, painted steel Buyer supply

2.0 Brewhouse Plant


2.1 Mash/Wort kettle BRD/DK 79 hl gross volume, insulated stainless steel vessel with heating jacket, internal wort boiler 3.2m 2 and agitator Vessel diameter: 2,500mm 24 hl gross volume, insulated stainless steel vessel with heating jacket and agitator. Vessel diameter: 1,400mm 67 hl gross volume, stainless steel. Vessel diameter: 2.0m 74 hl gross volume, stainless steel. 100 hl hot water tank, 80 C, stainless steel with heating jacket For product and water, centrifugal pumps, water mixer valves, etc. Control panel with pushbuttons for start/stop of motors, indicative mimic diagram, stainless steel. 167

2.2 Adjunct kettle

BRD/DK

2.3 Lauter tun 2.4 Whirpoll plant 2.5 Brewing liquor tank 2.6 Pumps, pipes, fittings 2.7 Control system

BRD/DK

DK BRD/DK BRD/DK

3.0 Wort Handling Equipment


3.1 Wort cooler

3.2 Wort aeration

DK DK

50h1/h plate cooler, stainless steel Wort aerator, 3001trih, stainless steel

4.0 CIP Station


4.1 Hot CIP plant 4.2 Cold CI plant

DK DK

3004. vessel with combined wort and CIP pump, stainless steel 2 x 5001tr. + 8004. Stainless steel vessells, centrifugal pump, control panel for CIP programmes.

5.0 Fermentation and Storage Tanks


5.1 Cylindro- conical fermenting and storage tanks

DK

9 x stainless steel tanks with cooling jackets and insulation, combiarmature for pressure control, top flange with vacuum valve, safety valve, CO2/CPI pipe, spray ball. Design pressure: 2 bar. Gross volume: 175h1 Automatic thermostatic control system in painted steel box

5.2 Temperature control

DK

6.0 Yeast Storage Tanks


6.1 Yeast Storage tanks DK

2 x stainless steel tanks with cooling jacket and agitator, including teperature conterol.Net volume: 300 1 tr. each. 22 hl/h lobe rotary pump in stainless steel

6.2 Yeast pump

GB/DK

168

7.0 Filter Plant


7.1 Filtration pump 7.2 Kieselguhr filter DK BRD Centrifugal pump, 50h1/h, 3,000 rpm, 3.0 bar. 2.2kw 30 hl/h stainless steel filter with plates and frames in stainless steel, including stainless steel mixing unit of 751tr, and dosing pump. Bag trap filter in stainless steel, 305Ohl/h. Max. working pressure: 8.5 bar.

7.3 Trap filter

NL/DK

8.0 Bright Beer Tanks


8.1 Cylindro-conical bright beer tanks 8.2 Temperature control DK 2 x stainless steel tanks with cooling jackets and insulation, otherwise as 5.1. Gross volume: 175 hl Automatic thermostatic control system in painted steel box.

DK

9.0 Bottling line


9.1 Gravity conveyor 9.2 De-packing table 9.3 Bottle conveyors DK DK DK For handling of full and empty crates and cartons, 16 m long For manual de-packing of bottles. double and triple for Single, transportation of empty and full bottles between the various machines Painted mild steel, insulated and clad with stainless steel. Nominal capacity: 6,000bph. Monoblock filler/crowner with a capacity of 6,000 x 0,5ltr.bph. 24 filling valves with pre-evacuation and 6 crowner heads. Single deck construction, built primarily of stainless steel. Based on a 23 belt stainless steel conveyor, 10.6m long. Nominal capacity: 6,000bph. For automatic labelling of bottles 169

9.4 Bottle washer

DK

9.5 Filler/Crowner

9.6 Pasteurizer

DK

9.7 Labelling machine

9.8 Packing machine 9.9 Inspection 9.10 Lubrication

DK DK DK

For manual packing of bottles into crates. 4 belts, 6m long. Visual inspection for clean bottles. Belt conveyor lubrication system consisting of stainless steel trays for lubrication with soap solution. Queue switches for stop/start of main machinery when bottle are queuing up on the conveyor system Mechanical bottle counting of empty and fillrd bottles.

9.11 Control system

DK

9.12 Production control

DK

10.0 Utility Plant


10.1 Cooling plant DK One air cooling plant with a capacity of 154,000kca/h, including compressor, shell and tube cooler, evaporative condenser, glycol pumps and glycol tank. One air compressor with air dryer 0,7 e/min. FBU 60, 60kg/h, including storage tank of 6 tons and cylinder filling station. High pressure boiler with a capacity of 2,000kg steam/h including feed water tank, oil storage tank 30 CO2 cylinders-each 46,7ltr, gaz capacity 7.0e-filled with argon

10.2 Air compressor 10.3 CO2 recovery plant 10.4 Steam boiler plant

DK DK DK

10.5 CO2 cylinders

DK

11.0 Process, Mechanical and Electrical Installations


11.1 Pipes, pumps fittings, etc. DK All pipes, fitting, hoses, pumps, accessories and insulation for connecting the process equipment and utility plant. Beer pipes in mild steel. Excluding water pipes which are local supply. Main distribution panel and complete set of cables and cable trays for connecting the equipment

11.2

DK

170

12.0 Laboratory Equipment - Hand refractometer - CO2 Gehaltemeter - Air tester - Carlsberg flask 251tr - pH meter - Analytical balance - Mechanical balance - Lovibond comparator - Alcohol determination equipment (distillation pycnometers, thermostatic water bath) - Various saccharometers - Various thermometers - General glassware - Various chemicals 13.0 Spare Parts Recommended spare parts as per Annex 4. 14.0 Supervision of Erection/Commissioning and Training One supervisor for a total period of 8 man-weeks supervises the installation and commissioning of the plant and one brewmaster for a period of 8 weeks for commissioning and training of the Client's personnel. Also included are travelling expenses and supervisors' special tools

171

ANNEX 4
SPARE PARTS A lump sum of 3% of the FOB value has been set aside for spare parts operation. The actual scope of spare parts is to be mutually agreed between the Buyer and the Seller based on the Seller's quotation for spare parts which shall be sent to the Buyer not later than 6 months from the effectiveness of the Contract

172

ANNEX 5 MATERIALS AND SUPLIES

The following materials and supplies shall be supplied by the Seller: 1. Malt (76% extract) 2. Hops (7% alfa) 3. Kieselguhr 5. Filter bags 6. Additives 7. Yeast culture 8. Various chemicals 9. Glue 102.0 tons 1,125.0kg 1,792.0kg : 20pcs 140.0kg : 3pcs : 2.4 tons : 0.5 tons

4. Filter sheets, 60 x 120cm : 200pcs

All other consumables like rice or sugar, bottles, crowns, lables, cartons, crates, etc. will be supplied by the Buyer

173

ANNEX 6 LIST OF SELLER'S PERSONNEL AND BUYER'S PERSONNEL

The Seller will send one supervisor for 8 weeks for installations and commissioning of the plant and one brewmaster for two months training the Buyer's personnel The Buyer will himself erect the plant

174

ANNEX 7 TECHNICAL DOCUMENTATION

The Seller will supply the following documentation: 1. Within two months from the effectiveness of the Contract - Site plan, 1:200 - Lay-out, 1: 100, including erection openings - Foundation drawings, 1:50 - General description of building, i. e. requirement for finish and materials. Based on the above the Buyer will be able to make the building design and start construction. 2. Within 5 months from the effectiveness of the Contract - Flow diagrams - Electrical diagrams 3. Two months after each shipment - Maintenance manuals - Operation manuals - Spare parts manuals - Installation drawings - Erection instructions

175

ANNEX 8

IMPLEMENTATION SCHEDULE FOR DELIVERY, ERECTION, COMMISSIONING AND OPERATION

The plant and machinery will be delivered in two shipments. First shipment not later than 6 months after coming into force of the Contract Second shipment not later than 8 months after coming into force of Contract Commissioning will take place after erection which is estimated to have been completed not later than 14 months from coming into force of the Contract. Production will start one month later and full production two months later

176

ANNEX 9 SPECIMEN OF LETTER OF GUARANTEE ISSUED BY THE SELLER'S BANK

Specimen: Letter of Guarantee for first payment and delivery To: Re: Buyer: Our irrevocable Letter of Guarantee No.

Beneficiary: Buyer: With reference to Contract No (hereinafter called "the Contract") signed by the Technoimport, Hanoi (hereinafter called the Beneficiary) and Danbrew Ltd. (hereinafter called "the Seller") on 200.... for the supply of equipment, materials, technical services and technical documentation, amounting to DEM... (say ... German Marks) we, at the request of the Seller hereby open our irrevocable letter of Guarantee No... in favour of the Beneficiary. We hereby guarantee you, irrevocably and as for our own debt for a sum up to DEM... in security of repayment, in full or in part, of your advance payment in the event of our client's faiture to fulfil their obligations towards you. Our liability under this Letter of Guarantee shall be limited to DEM.... (say:... German Marks only). This Letter of Guarantee shall become effective as soon as we have received the payment of DEM... to the free disposal of Danbrew Ltd. Under reference to Guarantee No... In the event that Danbrew Ltd. should raise any objection to disbursements under this Guarantee, payment thereof mush await agreement between the parties or adjudicial decision. We are informed that the Bank of Foreign Trade of Vietnam shall open an irrevocable documentary credit for DEM... in favour of Danbrew Ltd., payable at Den danske Bank A/S, Copenhagen, Denmark. This irrevocable documentary credit represents 85 percent of the total value of contract No... for DEM. The Guarantee will be reduced automatically on presentation to Den danske Bank A/S of shipping documents under and in compliance with the 177

aforementioned documentary credit, by 15% of the invoice value of such documents, without any confirmation from Techoimport, Hanoi. This Letter of Guarantee expires 60 days after the last contractual shipment date in accordance with the Contract. However, notwithstanding any thing contained here in before, the Guarantee expires on... or as soon as it is thus reduced to zero, whichever occurs first. Claims, if any, must have been received by us on the day of expiry at the latest. If no such claim is received, our liability under the Guarantee will lapse. On expiry of the Guarantee please return this document to us.

178

ANNEX 10

LIST OF BUYER'S SUPPLY

10.1. The Buyer shall construct all buildings, etc. and erect all the equipment supplied by the Seller according to erection instructions 10.2. All normal tools, welding equipment and consumables, including scaffoldings, cranes, etc. for the erection shall be supplied by the Buyer. The Seller is to specify the requirements to the Buyer 10.3. The Buyer shall secure supply of electric power, 3x380 V-0, E, 225kw, the Seller is to specify the requirements to the Buyer 10.4. The Buyer shall supply necessary assistance for the Seller's specialists during their stay on the site

179

ANNEX 11

LIST OF CONSUMPTION FIGURES PER HL BEER

1. Malt (76% as is) t2. Rice (76% as is) 3. Hops (7% alfa) 4. Chemicals 5. Kieselguhr 6. Filter sheets 7. Additives 8. Water 9. Power 10. Gas, oil 11. CO2

: 12,9kg : 5.7kg : 150grammes 100grammes : 250 grammes : 0.01m2 13 grammes 15h1 : llkwh : 7 litres : 1kg

180

ANNEX 12
SUPERVISION SERVICES AND TRAINING OF THE BUYER'S PERSONNEL

12.1. The Seller undertakes to send to SRV 2 skilled, experienced and healthy engineers (in Contract refereed as Specialists) for the purpose of supervision for erection, performance tests and plant acceptance as well as training the Buyer's personnel during erection, performance tests and acceptance of the plant 12.2. The Seller shall point out a Chief of the Specialists who will act as the Seller's Site Manger. The Manager will give general instructions and get in touch with the Buyer's Site Manager to discuss and settle everything related to erection, test run and acceptance of the plant 12.3. The Seller shall, at least 20 days before the date of departure of the Specialists concerned, telex the Buyer visa details of those who come so that the Buyer could arrange visa application for them 12.4. Seller shall provide his Specialists with working clothes and insure them at his own expenses for the period of their stay in Vietnam against illness, accidents and death 12.5. The Seller shall be held completely responsible: a. For accuracy, completeness and correctness of the information, instructions, advice, consultation and/or technical documentation shown and given by the Specialists b. For technical damages and expenses caused by the incorrect and inexact technical documents for the services given by his Specialists 12.6. The price for supervision and training services mentioned in Article 7 includes: a. Air tickets from Denmark to Vietnam and vice versa for the Seller's Specialists b. Expenses for meals of the Seller's Specialist during their stay in Vietnam c. Daily salaries and allowances 181

12.7 In case of illness or accidents during the Specialist's stay in Vietnam the Buyer shall provide the sick and injured Specialist with medical care in Vietnam with the exception charges for fitting false teeth, spectacles as well as taking tonics. In the event of the Seller thereof work exceeding 14 days the Buyer shall immediately inform the Seller thereof by telex and continue to guarantee medical care at the Seller's expenses and the Seller shall replace the incapable to work by another qualified Specialist in such manner that the work concerned shall not be effected by the absence of the respective Specialist. In the event of death occurring to any Specialist the Buyer shall arrange all formalities so that the Seller is able to repatriate the deceased. All the cost of the above mentioned repatriation and replacement shall be borne by the Seller 12.8. The Buyer shall provide the permits, visa, etc. for the Seller's Specialists for their entries, stays, re-entries and departure to, in and from SVR 12.9. The Specialists, during their stay in Vietnam, are obliged to adhere to labour safety regulations and obey the rules, law, regulations and habits all as the Buyer has made them known to the specialists or they know them from other sources 12.10. Should any of the Seller's Specialists be incompetent or have unsatisfactory conduct, the Buyer shall take the right to ask the Seller to replace him by another qualified Specialist. All the cost of repatriation and replacement shall be borne by the Seller 12.11. The Buyer shall, during implementation period of the erection and commission of the plant, provide the transport facilities, free of charge, between airport and the site and between the lodging and the plant site for the Seller's personnel. The buyer shall provide, free of charge, suitable office rooms at the site and every person with single room with air condition, bathroom and laundry service 12.12. Training of the Buyer's personnel during the stay of the Seller's Brew master in the plant he shall instruct and teach the Buyer's personnel the brewing procedures and analyzing procedures for beer

182

ANNEX 13
BUYER'S TRADE MARK - TRADE MARK REFERENCE AND USE

Danbrew Ltd. Is a company within the Carlsberg A/S Group In connection with this Agreement and otherwise the Buyer and any person, company or other legal entity controlling, controlled by or under common control with or employed by or related to the buyer, are not allowed in any connection whatsoever, neither directly or indirectly to use or otherwise make reference to the companies'/trade names/trade marks Tuborg and Carlsberg or trade names/trade marks similar hereto or to any other trade names/trade marks belonging to companies within the Carlsberg Group of companies, Danbrew excepted. The Buyer acknowledges that its failure to comply with the above will result in immediate and irreparable damage to Carlsberg A/S, Denmark and admits that Carlsberg A/S shall, without prejudice to any rights of action or any claims of damages or rights at the date of termination, be entitled to injunctive relief and such other relief as any court with jurisdictions may deem just and proper.

183

7.2. The Vietnamese version of the contract

HOP HONG SO 10/NAP7


Tong COng ty Xuat Nhap khdu Thi6t bi Toan BO va Ky thuat "TECHNOIMPORT", dia chi 16-18 Trang Thi, COng hoa Xa hQi ChU nghia Viet Nam, Telex s6 411230 Tech VT va 411542 Tech VT (sau day goi la "Ngueri Mua") la mot ben. Ben kia la C6ng ty DANBREW Ltd, dia chi Rahbeks Alle 21, DK-1801 Frederiksberg C, Dan Mach, telex 16124 (DBREW DK) (sau day goi la "Nguesi Ban") hOm nay da th6a thuan Hop dung sau day:

CAC DIU KHOAN HOP WING


Dieu 1: D6i tArng hop &Ong va pham vi cung cap Dieu 2: Cac tai lieu thuOc hop dung Dieu 3: Nhiing nghia vu cua Nguoi Ban Dieu 4: Nhang nghia vu cna Ngueri Mua Dieu 5: Dieu kien va theii gian giao hang Dieu 6: Bao bi &rig goi va

4 ma hieu

Dieu 7: Gia ca va dieu kien thanh toan Dieu 8: Phat ve giao hang cham Dieu 9: Giam dinh tru6c khi giao hang Dieu 10: Bao hanh Dieu 11: Lap rap, Thir chdc nang va nghiem thu Dieu 12: Gig), phep nhap khdu/xuat khdu Dieu 13: Trong tai va Ludt ap dung Dieu 14: Bat kha khang Dieu 16: Hieu luc cua hqp clang Dieu 17: Dia chi phap ly cua cac ben

184

Dieu 1: Doi tuorng hop d6ng va pham vi cung cap 1.1. Doi tu'ang hop clang
D6i Wong hop dung nay IA thiet lap & tinh Nghe An, prig hoa Xa hOi Chu nghia Viet Nam mot nha may bia doing IX) voi cac trang bi chi6t chai c6 c6ng suit san xuat IA 30.000 hl bia/nam ten co s& 24 giO lam viecingay va 241 ngay lAm viec/nam d6i voi nhA ngu bia va pith hop vii cac tinh 'fang ky thOt va cac ban ke thi6t bi, phu ding thay the va vat tu, do du tril, v.v... neu trong cac phu luc kern theo hop 'long nay. 1.2. Pham vi cung cap Ngtrili Ban chiu trach nhiem cung cap cac muc sau: 1.2.1. Thies bi the bi6n (cong nghe), thiet bi phu trg, cac do n6i va thiet bi dien nhu neu trong Phu luc 3. 1.2.2. Phu ding du tru cho hai nam van hAnh d6i vol tat ca thi6t bi va may m6c nhu neu trong Phu luc 4. 1.2.3. Cac vat to va do dkr tiff cho cac thing van hAnh dau tien nhu neu trong Phu luc 5. 1.2.4. Giam sat, thir nghiem, van hAnh va ciao tao tai dia diem lap rap va van hAnh nhu neu trong Phu luc 6. 1.2.5. TAi lieu icy thuat, cac ban ye va cac so do nhu neu trong Phu luc 7. 1.3. Nguai Ban chiu trach nhiem cung cap tai cd cac mat hang can thi6t khOng neu trong cac phu luc not ten nhung can c6 cho viec van hAnh binh thuang cua nhA may va de bao darn moi chtic nang da &rot bao hAnh cua nhA may. 1.4. Nguai Ban se" bdo ddm cung cap phu tang thay the cho nhA may theo yeu cau va It nhgt trong 10 nam Ice sir khi bat dau van hAnh nha may.

185

Dieu 2: Cac tai lieu thuOc hop dung 13 Phu lac sau day la mot phan khOng tach red ciia Hop dOng 1) MO to chung cong nghe 2) 'Dinh chat ky thuat cua bia 3) Ban ke thiet bi va may moc 4) Phu tang thay the 5) Vat tu va do du tilt 6) Ban ke nhan vier' caa Nguoi Ban va cua Nguoi Mua 7) Tai lieu ky thuat 8) Lich bidu thuc hien d6i v6i viec giao hang, lap rap chay thir va van hanh 9) Mau cua thu bao dam do Ngan hang Ngued Ban phat hanh 10) Ban ke cac thir do Nguoi Mua cung cap 11) Ban ke cac thong s6 tieu thu cho moi hl bia 12) Cac dich vu giam sat va dao tao nhan vien caa Nguoi Mua 13) Nhan hieu thuong mai dm Nguoi Mua - Nhan hieu thuong mai tham kith() va sit dung.

186

Dieu 3: NW-mg Nghia vu cua Ngired Ban 3.1. Nguoi Ban se chiu trach nhiem d6i vii toan 1)0 cong trinh, viec thiet ke va cac tai lieu lcSi thuat se &roc sir dung cap cho Ngued Mua. Cac tai lieu nay duoc neu trong Phu lye 7 va se dugc cung cap lam 5 ban vii moi loai tai lieu. 3.2. Ngtr6i Ban cung cap thiet bi, cac loai vat to va phu ding thay the cho cOng trinh CIF Da Nang theo pham vi cung cap neu trong Phu luc 3. 3.3. Nguad Ban se giao den cang Da Nang theo diet]. kien CIF cang Da Nang nhu Dieu 5 cua Hop Ming nay cac thiet bi cac loai vat to va Ow ding thay the phi) bop vii qui cach pham chat not Dieu 3. 3.4. Ngtrad Ban se cung cap moi chi clan can thiet cho viec xay dung nha =Ong cua nha may neu trong Phu lye 7. 3.5. Nguari Ban se chiu trach nhiem huong dan va giam sat viec lap rap thiet bi va tien hanh chay thin, nghiem thu va van hanh nha may nhu & Dieu 11 dia. Hop ding nay. 3.6. Nguad Ban se cir cac chuyen gia k- thuat nhu neu trong Phu luc 6 cua y Hop dung nay. 3.7. Ngued Ban se chiu trach nhiem dao tao nhan vien cua Ngtrad Mua nhu neu trong Phu luc 6 cua Hop ding nay. 3.8. Ngtrad Ban se cung cap cho Ngtrad Mua kh6ng lay them den thiet bi hoac 1)0 phan may moc hoac thuc hien viec thay the hay sira china, nett can thiet, nham hoan tat cac nghia vu cua minh, vii dieu kien la viec cung cap, thay the hoac sera chira nay khOng thuOc cac nghia vu cua Ngtrad Mua trong Hop &Ong nay.

187

Dieu 4: Nhang nghia vu cua Noel Mua Ngueti Mua chiu trach nhiem: 4.1. Cung cap cho Ngueri Ban nhang s6 lieu co ser can thi& NIA cac tali lieu lien quan den nhA may d6i voi viec thiet ke" cUa Ngueli Ban va lap ra ban ice thi& bi va vat tu c6 trach nhiem d6i voi dQ chinh xac cua cac tai lieu. 4.2. Xin giay phep nhap khdu va cac giay pile') can thi& Ichac d6i voi viec xay dung va san xuat cua nha. may. 4.3. HoAn thanh viec xay dung nha 'cueing nhA may phu hop voi cac yeu cau Icy thuat cua nhA may. 4.4. Cung cap thi& bi cid lap rap - (cac nhu cau, dung cu gian gido, v.v...) cac dung cu chung va cac vat lieu tieu hao cho viec lap rap nha may do Ngueri Ban giao (d6i voi viec hAn, mai, cat dau v.v...) 4.5. Xin nhang giay pile') can thi& cho cac chuyen gia cUa Ngueri Ban va gia dinh ho, n'eu c6, de den Viet Nam lam viec cho nha may, bao g6m thi thuc nhap canh, gigy phep tam tril va lam viec. 4.6. Cung cap cho Ngueci Ban, theo yeu cau cua Ngued Ban, nhan luc, cac vat tu can thiet cho lap rap, chay thin va nghiem thu nhA may nhu neu er Phu luc 10. 4.7. Chiu phi van chuydn doi voi thidt bi, vat tu va phu ding thay the cung cap theo hop dong nay tit DA Nang t6i dia didm nhA may, bao g6m ca cang phi va phi Hai quan.

188

Dieu 5: Dieu kien va th6i han giao hang 5.1. Nguai Ban se giao thi6t bi, cac vat tu phu ding thay th6 neu trong Phu luc 3 va Phu luc 4 va cac tai lieu Icy thuat neu trong Phu luc 7 ciia hop &rig nay dung theo cac ngay ghi trong Phu luc 8. 5.2. Viec giao thi6t bi, vat tu va phu tong se duqc thuc hien ten ca s& dieu kien CIF cang Da Nang, COng hoa Xa hQi Chu nghia Viet Nam (phi' hop voi INCOTERMS - Nhang dieu kien thuang mai quoc t6 - nam 1953, Ban phat hanh nam 1990). Nguai Ban se c6 trach nhiem chuydn tai. N6u khOng tranh duqc Nguai Ban se thOng bao cho Nguol Mua va thkrc hien viec giao hang phii hap. Ngu6i Ban phai chiu va tra moi chi phi, thug kh6a lien quan d6n viec van chuyen hang h6a d6n cang Hai Phong, COng hoa Xa. 110i Chu nghia Viet Nam. Hang 116a se du'o'c bao him tit kho Ngu6i Ban den kho Ngu6i Mua & cang Da Nang. Cac tau van chuydn hang cung cap theo Hop (long nay se dap Ung cac dieu kien sau: Cac tau nay da duac sir dung khOng qua 15 nam hoac phai duac x6p loci nhat d6i vdi tau di Wen b&i mQt trong cac t6 chdc phan loci tau quoc t6 nhu neu trong diet' ve phan loci cua COng ty Lloyd ngay 1/7/1978. Duac phep giao hang trong cOng-ten-na. it nhat 2 tun trudc khi giri hang Nguoi Ban se thong bao cho Nguai Mua bang dien tin hoac telex lie su lam dung ve tau da not & ten va ve qu6c tich cua tau. Ngu6i Ban se thay mat NguOi Mua bao him thi6t bi, vat to va phu ding thay th6 duqc giao theo Hop ding nay 110% (mQt tram muai phan tram) ciia gia tri CIF dia. hap (long phi' hop v6i Dieu ve hang hoa cua COng ty Lloyd (moi rui ro) tra bang dong tien neu trong hap .dong nay v6i mQt cOng ty bao him c6 uy tin. 5.3. Thi6t bi se duqc giao v6i day di' cac phu kien va phu tang pith hop vai lich giao hang de dam bao viec lap rap nha may va chay thin cong trinh dung han theo cach nhanh va hop 17 nhat. 5.4. Ngay ciia Van dan sach da dua hang len tau duqc coi la ngay giao hang; tru6ng hop gin dung hang khOng cho cac tai lieu k9 thuat thi van dan hang khOng se thay th6 cho van dan du6ng bin va ngay cua du6ng bien va ngay cila van dan hang khOng duac coi la ngay giao cac tai lieu Icy thuat. 5.5. Nguii Ban se thOng bao cho Nguai Mua bang dien hoac telex 10 ngay tru&c khi giao hang. NQi dung ciia thong bao nhu sau: - S6 hop dong - Cang giao hang - Dkr ki6n ngay d6n - Tri gia chuydn hang - S6 luong hoac cong-ten-na 189

- Tong trong luang ca bi - Tong khoi Wang - Nhfing thOng bao them va huong clan Ngtroi Ban se xac nhan not dung dm dien hoac telex tren bang thu bao dam trong yang 10 ngay ice tit ngay giri dien hoac telex tren. 5.6. Nguai Ban se thOng bao cho Ngt.r6i Mua bang dien tin hoac telex ye viec giao hang trong veng 5 (nam) ngay sau ngay tau reri ben cang giao hang. Nhang not dung dia thong bao dien tin hoac telex se la: - S6 hap 'long - Su xac nhan va/ hoac thay dei, ne.0 c6, ciia telex thuec diem 5.5 - S6 danh diem cita thiet bi va vat to da giao phu hap v6i phu luc 3. - S6 kien va/hoac cOng-ten-no' - Tong trong Wong tinh/b1 bang kg cila moi cOng-ten-nog hoac kien - Tong khei Wang bang m 3 - Ghi chu ve cac sieu truong va sieu trong nhu tit 10 (mueri) tan tr& len ve trong Wang va/hoac tir 10 (mtroi) met ve chieu dai va/hoac tir 3,2 met ve chieu cao va/hoac tir 2,8 ye chi& Ong. - Ring gia tri cua hang duet giao - Ngay va so dia van don throng bien: Thong bao dien tin hoac telex neu tren se dtrac xac nhan bang thu bao dam giri may bay se duet giri cho Ngtroi Mua trong vong 3 (ba) ngay sau ngay girl dien tin hoac telex. 5.7. Trong yang 10 (mtred) ngay sau khi tau red ben Ngtroi Ban se giri den dia chi Ngu6i Mua bang buu dien cac tai lieu sau: - H6a don thuang mai : 4 ban - Van don dtrong bin sach : 4 ban - Ban ke dong g6i : 4 ban - Bao cao giam dinh : 3 ban - Chung chi pha'm chSt : 3 ban - Chting chi s6 luang : 3 ban Ngoai ra, Ngtr6i Ban se giri qua thuyen twang tau met be cac ban ke &mg goi (long trong phong bi dai va cheng mot. 5.8. TruOng hap giao hang bang dung Meng Ngtreri Ban se thong bao cho Ngt.rbi Mua bang dien tin hoac telex 10 (mutri) ngay tn.r6c khi giri hang ve s6 hap dong, ngay du Id& gui, not giri m6 to ye hang He lien quan va s6 Wang hang. 5.9. Ngtred Ban chiu trach nhiem bao cho Nguai Mua bang dien tin hoac telex vao ngay giri hang h6a lien quan v6i n'ei dung sau: 190

- S6 va ngay dia hop dong - S6 va ngay van don hang khOng - Ten cOng ty hang khOng va s6 chuyen bay - MO to hang Ma - S6 luong kien - Trong Wong tinh/b1 Ngugi Ban se girl cho Ngtrgi Mua ding vdi hang hoa moi tai lieu ve van fait dam bao viec can thiet nhu ban sao van don hang khOng va ban ke dong goi nhan hang duoc an toan tai san bay den. 5.10. Ngugi Ban se chiu trach nhiem d6i vdi bat kSr hu hOng nao va/hoac bat kST chi phi phu them nao do thieu thOng bao neu ten. 5.11. Moi chi phi lien quan den viec thOng bao cling nhu lap va gin tat ca cac tai lieu nhu neu trong Hop dong nay se do Ngtr6i Ban chiu. , 5.12. Viec chat hang tren boong tau se duoc cho phep d6i vdi nhting danh diem ma theo thOng le thuong mai cluck to thl khOng hoac khOng the chat dugc dudi ham tau. 5.13. Sau khi hang den cang nhan Ngugi Mua c6 quyen giao viec giam dinh ve s6 luong va/hoac chat luong cho "COng ty nghiem va Giam dinh Viet Nam - VINACONTROL ve hang h6a nao ma thing g6i bi hu hOng hoac d6 v6. Viec giam dinh nay do chinh VINACONTROL lam. MQt bao cao ye viec nay se &roc VINACONTROL phat hanh nhu la mot chung dr cid lam khieu nai vdi Ngugi Ban. Dai dien ci1a Ngugi Ban c6 the c6 mat tai noi giam dinh. Trugng hop c6 nhirng d6 v6 va mat v6 hang hoa trong khi van chuyen, boc hang va da hang ma khOng thuOc 16i cita Ngugi Ban thi Ngubi Mua, trong giai doan bao hiem, se mgi VINACONTROL giant dinh hang Ma nay va cung cap cho Ngugi Ban cac tai lieu khieu nai c6 lien quan de Ngtrgi Ban c6 the lam khieu nai vdi Ngugi van chuyen hoac COng ty bao hiem va de cung cap lai bang chi phi dia minh cho Ngugi Mua cac hang h6a thay the theo nhang dieu kien neu trong hop (long nay trong \Tong 6 (sau) thang ice tir ngay nhan duoc h6 so khieu nai do Ngtroi Mua cung cap. Cac ho so khieu nai se Om: - COR - ROROC - Bien ban giam dinh - Van don ddmg bien - Ban ke dong goi - Cac tai lieu can thiet khac

191

Dieu 6: Bao bi dong goi NIA 14 ma hieu 6.1. Thi6t bi va phu ding thay the se duqc giao trong bao bi xudt khdu duang bier' dap ung moi yeu du cila moi loai hang rieng biet ve thiet bi va cac diet' kien khi hau a COng hoa Xa hQi Chu nghia Viet Nam. 6.2. Bao bi phai dam bao an toan ddy du ve hang h6a khOi bdt kS, mot d6 Va. sat va van chuydn lien hop covahnriotgcuyednN,otig tinh den ca viec chuydn tai, neu co trong khi van chuydn Ira trong dieu kien luu kho dai ngay va can than a a:mg hem Xa hOi ChU nghia Viet Nam (vai died gian tai da la 10 thang). 6.3. Bao bi se phai phu hop voi viec b6c hang bang can du, xe ca, xe tai NIA bang tay trong chimg muc ma trong luting va khai luting cUa nhang kien rieng bi'et cho phep. 6.4. Truot khi bao bi tat ca bQ phan may cua thiet bi va phu tong phai duqc bao ve voi lop phu chang ri de de phong cho Chung khOi bdt kS , hu hOng va han ri trong van chuydn va de dam bao mot tiled gian luu kho 10 thang tai nuoc Nguai Mua. 6.5. Nguoi ban se chiu trach nhiem ve bdt kS7 hu hOng hoac do va nao cua hang 116a ma do &rig g6i ban ddu khOng tat hoac voi han ri do bOi ma ban ddu khOng dung hoac khOng du 6.6. Moi kien hoac thUng thua khOng duqc vugt qua cac kich thuot sau: - Dai: 10.000 mm - lOng: 3.000 mm - Cao: 3.200 mm Trong moi truang hop trong luting khOng duqc vuot qua 20 tan vbi moi cOng-te-na hoac kien. Trong twang hop cac cOng-to-no thi cac kich thirdly se la cUa cac cOng-te-no 20 foot tieu chudn. 6.7. Cac loai ang va tiler) hinh hoac cac vat to tuong to ma theo thOng tuc quac t6 co the duqc giao khang c6 bao bi thi se duqc buQc chat theo cac kich ca nham tranh gay va trong van chuyen, trung chuyen va nhdm ldn khi den dia diem nha may a Viet Nam. 6.8. Ban Ice dong g6i se Om thOng tin sau: - S6 hop (long - S6 danh diem (theo Phu luc 3) - Trong luting (tinh/b1) - Kich thudc kien bang cm - Ten ngu&i giri va nguai nhan. 6.9. Cac kien c6 chda thidt bi va phu ding phai duqc via mac ma tren 4 mat: mat tren va 3 mat ben. 192

6.10. Mac ma se phai viet ro rang bang son den khOng phai bang tie'ng Anh nhu sau: (Cac chit va con s6 khOng nh6 hon 10cm n'6u kich thirac cita kien cho phep) - Ngueri nhan: 1ECHNQIMORT, Ha NO CHXHCNVN. - S6 hop &rig: - Trong luong tinh/bi bang kg: - Kh6i luong bang m 3 : - Kich thiroc kien bang cm: - S6 kien: - S6 danh diem (theo Phu luc 3): - Cang giao hang: - Cang den: - Mac ma van chuydn Cang Da Nang, CHXHCNVN 10/NA/P7 '1ECH/DAN Cang dUng mac ma nay khi giri throng hang kh6ng. 6.11. Moi kien hang can su b6c def can than deu phai c6 mac ma phu: "Can than", "Phia tren", "Dirng lat" ding nhu cac chi dan khac n6u c6 b6c der dac biet hoac mot kien dac biet nao day can c6 nhu diem nick cap va diem trong tam. 6.12. MOt phong bi ch6ng nudc chtia 1 1)0 sao cila ban ke dong goi se duoc gan vao phia ngoai moi kien; Phong bi nay phai duoc the ngoai bang mot mie-ng kim loci duoc hoac thing dinh vao kien hoac On chat vao phan kim loci cUa thiet mot ban nira ban ke MI-1g goi se duoc cho vao trong kien hang ding \Tad thiet bi. 6.13. Ngued Ban chiu trach nhiem d6i vOi cac chi phi van chuyen phu them hoac luu kho cling nhu vai hu hong xay ra voi hang Ma do viec thie't bi nham dia chi vi da danh mac ma ban dau khOng dU hoac khOng DANBREW, Dan Mach 10/NA/P7

193

Dieu 7: Gia ca va dieu kien thanh town 7.1. Tang gia tri dia hop dung la nhu sau: Thiel bi, phu tong, tai lieu k y thot vat to DEM x.xxx.000 Giam sat va dao tao Phi van tai, bao him va bao bi... Gia tong Ong DEM xxx.000 DEM xxx.000

DEM x.xxx.000 7.2. Gia tong Ong tren &rot hidu la gia CIF tang DA NAng CHXHCNVN va la gia co dinh va khOng phu thuOc vao bAII4 su si:ta gia nao. 7.2.1. Bao bi se duoc thuc hien trong cac cOng-te-no 20 foot mot chieu trit cac danh didm Ion khOng co thd dua vao cong-te-no ducic. 7.3.Ban ke gia ca S6 danh didm 1.0. Thiel bi chuydn malt 1.1. May nghien malt 1.2. Thong malt hat, gdu tai, bang chuyen... 1.3. He th6ng tach bui va lam sach 1.4. Bang dien 1.5. May nghien gao va thao do do Ngued mua cung CST) 2.0. Nha na'u bia DEM xxx.000 2.1. Noi ngam hat.hem 2.2. N6i phu 2.3. N6i loc 2.4. Thimg khugy 2.5. Tilting nook n6ng 2.6. Bum, cac 6ng va dAu not 2.7. Bang dieu khidn 3.0. VAn chuydn hem 3.1. May lam lanh hem 3.2. Th6i khi hem 4.0. Tram ve sinh may tai cho 194 DEM xx.000 DEM xx.000 Gia ca DEM xx.000

4.1. Tram CIP nu6c n6ng 4.2. Tram CIP nuoc lanh 5.0. Cac thing len men 5.1. 9x thing chtlailen men hinh tru con... 5.2. He th6ng kiem tra nhiet dO 6.0. Cac thing chda men 6.1. 2x thing chda men 6.2. Bom men 7.0. Xu&ng loc 7.1. Bom loc 7.2. Loc dat (kieselguhr) 7.3. Loc xi-phOng 8.0. Cac thing bia trong 8.1. 2 thing bia trong 8.2. He thong dieu khien nhiet dO 9.0. Day chuyen trier chai 9.1. Day chuyen thing thua 9.2 Ban thao ket bia 9.3. Cac bang chuyen chai 9.4. May rira chai 9.5. May chi& chai/dung nut chai 9.6. May thanh trUng 9.7. May dan nhan 9.8. Ban &mg ket 9.9. Giam sat 9.10. BOi tron 9.11. He th6ng dieu khien 9.12. Dieu khien san xuat 10.0. Xuang phi trq 10.1. Xuang lam lanh 10.2. XuOng khl nen DEM xxx.000 DEM xx.000 DEM x.xxx.000 DEM xxx.000 DEM xxx.000 DEM xx.000 DEM xxx.000

195

10.3. Xi!'Ong thu hoi CO 2 10.4. Xdong not hoi 10.5. 30 Binh day khi argon 11.0. Cac thiel bi cOng nghe, co khi va dien 11.1. Ong, bom, do not v.v... 11.2. Bang dieu khidn chinh va cap 12.0. Thies bi phong thi nghiem 13.0. Phu tong thay th'6 14.0. Nguyen lieu san xual 15.0. Dong kien, cac vO cOng-te-no 1 chieu T6ng gia FOB Giam sat lap rap van/hanh Phi van tai Phi bao him Gia t6ng cOng CIF cang Da Nang 7.4. Dieu kien thanh toan

DEM xxx.000 DEM xxx.000 KhOng tinh tier' DEM xxx.000

DEM xx.000 DEM xxx.000 DEM xxx.000 DEM xx.000 DEM x.xxx.000 DEM xxx.000 DEM xxx.000 DEM xx.000 DEM x.xxx.000

Viec thanh toan d6i voi gia tong Ong nhu neu trong dieu 7.1 se duot thuc hien nhu sau: 7.4.1. Tien dat coc 15% (mued lam phan tram) gia t6ng Ong len toi s6 tien xxx.000 DEM, se duoc tra bang dien chuydn tien trong yang 60 ngay tit khi ky hop dong nay can cu vao viec trinh cac tai lieu sau day dm Nguoi Ban: a) 1-loa don chinh cua NguOi Ban thanh 5 ban b) Gig)/ bao lanh cua Ngan hang nhu phu lye 9 - do Ngan hang Nguad Ban phat hanh - giri cho NguOi Mua... 7.4.2. D6i voi 85% (tam muoi lam phan tram) cua gia t6ng Ong tren, len toi s6 tien x.xxx.000 DEM; Nguoi Mua se yeu cau Ngan hang Ngoai thuong Viet Nam (Vietcombank) phat hanh mot tin dung thu kh6ng hUy ngang tra tien ngay cho Ngued Ban duoc Ngan hanh Ngued Ban xac nhan trong \tong 60 (sau muoi) ngay tit ngay 14 hop citing nay Tin dung thu tren se duoc thOng bao bang telex hoac dien tin (day du not dung) cho ngan hang tren Tin dung thu nay se co hieu luc sau: 75% (bay muoi lam phan tram) cua gia t6ng Ong, DEM, se tai 10 thang sau khi in6 tin dung thu tren 196

len toi

s6 tien x.xxx.000

10% (magi phan tram) caa gia t6ng cOng, len tgi s6 tien xxx.000 DEM,s'e tdi 18 thang sau khi m& tin dung thu tren 7.4.3. Viec thanh toan s6 tien tong Ong tren se dugc thuc hien sau: 75% (bay magi lam phan tram) cua s6 tien ghi trong h6a dun cua moi chuye-n giao hang, c nghia 1a khOng vugt qua x.xxx.000 DEM, tra can ea viec trinh cac tai lieu giao hang sau: 1) Floa don thuong mai c6 chit 14, 2 ban chinh va 2 ban sao 2) Van don sach da xep hang len tau c6 ghi "phi van tai da tra" da lam va theo lenh va ky hau de trong, toan be ban chinh va 2 ban sao. 3) Ban ke clang goi, 3 ban chinh va 2 ban sao 4) Bao cao giam dinh do Ngugi Ban phat hanh, 3 ban chinh va 2 ban sao 5) Cluing chi pham eh& do Nguen Ban phat hanh, 3 ban chinh va 2 ban sao 6) Don hoac gia.y chting bao hiem 3 ban c6 ky hau de trong cho 110% gia tri phi hop vgi dieu (moi rui ro) ve hang hoa dia T6 chile LLOYD neu ro cac khie-unai duo'c tra bang chinh dong tien ghi trong tin dung thu 7) Ban sao thOng bao giao hang cila Ngued Ban, 3 ban sao. 10% (mtred phan tram) dm gia t6ng Ong tren, len toi s6 tien xxx.000 DEM, dugc tra sau khi van hanh nha may can cif viec trinh: (1)146a don thuong mai c chit ky, 2 ban chinh va 2 ban sao (2) CinIng chi nghi4n thu xac nhan viec van hanh cra dugc thuc hien do cac dai dien cua Ngued Mua va Ngued Ban 14 Tuy nhien, trong bgt kS7 tinh hu6ng nao s6 tien nay se phai c6 san cho ngued thu hugng 17 thang ice tir khi mg L/C nay: (1) Floa dun thuong mai c6 chit 14, 2 ban chinh va 2 ban sao (2) Gigy bien nhan cua Nguoi thy hueng 7.5. Trong vong 30 ngay ke tir ngay 14 hop (long Ngued Ban se co dugc thu bao dam ciia Ngan hang khOng huy ngang, bao lanh cho 15% tien dat coc tren nhu diet' 7.4.1. Thu bao dam; Ngan hang nay se dugc Ngan hang Ngugi Ban phat hanh yen not dung nhu tren trong phu luc 9 cila hop dong nay 7.6. Moi phi ton ve Ngan hang va phi hoa hong trong Viet Nam se do Ngued Mua chiu. Moi phi ton va phi hoa hong v6 Ngan hang ngoai nuot Viet Nam se do Ngued Ban chiu Moi chi phi va phi ton lien quan den viec keo dai va/hoac sita d6i ve tin dung thu not tren se do ben c6 16i chiu

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Dieu 8: Phut giao hang chain 8.1. Neu vi nhfing 1y do hoan toan do minh gay nen Ngugi Ban khOng giao dugc tat ca thiel bi vat tu va phu ding thay th6 vao nhung ngay quy Binh trong lich giao hang (phu 1uc 3) thi ngugi do phai tra cho Nguai Mua nhang khoan phat da nhat tri doi vai viec giao cham nhu sau: Vdi tY suat 0,5% cho m6i tuan le day clU v6 giao cham tit* cu6i ngay giao hang dkr kien trong lick giao hang T6ng s6 tien phat cho thi6t bi, vat tu va phu tong tuy nhi'en se khOng vuot qua 5,5% gia tri cUa thi6t bi va/hoac phu tong va/hoac vat tu dugc giao 8.2. Ty suSt tren va lien phat se khOng dugc giam hoac tang b&i trong tai 8.3. Khoan phat nay se du is Ngugi Ban tra can ccr hoa don Nguoi Mua trong \Tong 2 thang sau khi nhan dugc 8.4. Ngugi Ban khOng duot tir bO nhirng nghia vu cUa minh ne trong hop &rig nay do viec tra khoan tien phat duot 8.5 Neu vi nhang 1y/ do hoan town cira Ngugi Ban ma viec giao thiel bi, vat tu va phu tong thay th6 bi cham hon 3 thang thi hai ben ky hop dong se phai ra nhimg bien phap de xir 1y cho skr ti6p tuc cua hop (long nay rong \Tong 1 thang ke tit ngay cuoi ding cila thang thir 3 nay.

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Di611 9: Giam dinh truck khi giao hang 9.1. Ngue Ban bang chi phi khi minh se tien hanh viec giam dinh thiet bi tai xuong cUa minh hoac cua ngued nhan than dia minh 9.2. Ngued ban se phat hanh ban bao cao giam dinh xac nhan rang thi6t bi da daoc the tao hoan toan phi hop vOi nhting dieu khoan va dieu kien cila hop dung nay va theo he met Tren co so nay 1 gig.y chting chi chgt luong se ducic Ngued ban phat hanh va 147. Ban bao cao giam dinh tren se dugc gUi ding \Ted cac tai lieu nen 6' diem 5.7 9.3. Truot khi giao hang xu6ng tau Ngu6i ban phai kiem tra viec lap rap va viec van hanh c khi cita hau h6t cac thiet bi chinh yeu; N6u c thiet bi hoac don vi may nao do dugc giao trong trang thai thao r6i thi Ngueci phai cung cap ding ved thiet bi do bang chi phi cUa minh tat ca cac phuong tien chuyen dung va dung cu de lap rap thiet bi nay 6 dia diem nha may duoi su giam sat ciia chuyen gia lap rap trueng cUa Ngu6i ban. 9.4. Nhimg thin nghiem va nghiem thu cuoi ding ye van hanh thiet bi, phai duqc tien hanh tai dia diem nha may '6 Viet Nam phi hop voi dieu 11

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Dieu 10: Bali hanh 10.1. - Nguoi ban bao dam rang:
10.1.1. Thiel bi va tai lieu ky thuat duoc cung cap se bao dam dat duoc chirc nang duoc bao hanh nhu neu trong hop Ong nay. 10.1.2. Thiel bi va tai lieu ky thuat duoc cung cap ding nhu sir to Ong h6a va co' khi hoa cua cOng ngh'e san xuit se thuOc nhung thanh tau qu6c to hien dai nhit dbi vdi loai nha may dac biet nay vao thai diem giao hang nha may nay 10.1.3. Cac nguyen lieu dung de the tao thiel bi va phki tang thay the, tay nghe sir dung ding nhu viec lap rap va thkrc thi ky thuat phai co chit Wong cao 10.1.4. Thiel bi va phu t ing thay the duot cung CS!) la loai mai the tao va duoc the tao hoan toan phi' hop vdi sir mb ta, cac tinh Wang va dieu kien ky thuat dm hop &Ong nay va se duoc the hien nhu vay trong viec van hanh thtrong mai dia nha may 10.2. Sau khi hoar' thanh tai lieu ky thuat hoac trong thbi gian the tao thiet bi dia nha may nett Co thay doi hoac cai tien ve ky thuat ma Ngued Ban biet va thuc hien thi Ngued Ban se cung cap cho NguOi Mua khOng lay tien tai lieu ky thuat cai lien va dua nhilng thay dbi va cai tien nay \Tao viec the tao sau khi nhan dugc su Ong yr bang van ban dm Nguari Mua 10.3. Thbi gian bao hanh d6i vdi nha may vdi diet' kien moi s6 tay va chi dan ky thuat duoc cung cap nhu neu trong twang hop Ong nay duoc chip hanh se la 12 thang ke tir ngay ky thing chi nghiem thu eh& nang nhung khOng cham hon 20 thang ke tir chuyen giao hang cuOi ding ThOi han nay se dugc keo dai mot cach tuong Ling nett van hanh nha may da bi ngimg do 16i cita Ngued Ban 10.4. Neu trong thOi gian bao hanh cho nha may bit ky thiet bi nao c6 hu hOng hoac khOng Ong bO, toan bQ hoac tang phan, hoac nett duoc the tao khOng phit hop vdi cac dieu khoan va dieu kien dm hop Ong nay trong viec chay thir thiet bi, theo yeu eau cita Ngtrei Mua, NguOi Ban chiu trach nhiem khir 1)6 nhiing hu hong duoc phat hien ngay lap tic trong khoang thOi gian hop ly ma hai ben thea thuan cho viec khi be) nay ma khOng lay them tien cita Nguari Mua; NguOi Ban phai xem xet lai hoac thay the tai lieu ky thuat nay va/hoac sira chrra hoac thay the vdi chi phi dm minh cac may thiet bi hoac phi tong thay the" hu hOng hoac khOng chinh xac 10.5. Moi chi phi lien quan den viec giao thay the cac may, thiet bi va phy ding thay the lien quan tren co soy giao CIF Da Nang se do Ngubi Ban chiu; tiled han bao hanh doi vdi cac thiet bi hoac phki tang duoc thay the hoac sira chira la 12 thang ke tir ngay bat dau van hanh

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Cac may, thiet bi. hoac phu ding hu hong sau khi &roc thay the bang cai moi c6 the duot giri lai cho Ngueri Ban neu nguoi do yeu cau vdi chi phi dm ngu6i do tren co' so' gido CIF DA Nang trong thoi gian do hai ben thOa thuan 10.6. Neu Ngkr6i Ban khOng khir b6 &roc cac hu hong ma Ngu6i Mua khi6u nai, nhu neu o (loan 10.4. thi Ngtr6i Mua c6 quyen to .mlnh khir 1)6 nhiing hu hOng nay vdi chi phi cna Ngkr6i Ban ma khOng giai thoat Ngu6i Ban khOi nhang nghia vu lien quan den bao hanh neu trong dieu nay; trong nhfing tru6ng hop nay Ngtr6i Ban phai chiu cac chi phi thuc t6 cho viec sira chila. Bat kST sy hu hong nhO nAo can khir 1)6 gap ma khOng can sir co mat dm Ngtr6i Ban se duoc Ngued Mua thkrc hi'en va bao cho Ngu6i Ban bang dien tin hoac telex va Ngu6i Ban se chiu nhang chi phi thkrc t6 10.7. Neu nfrang hu hong nhu neu d diet' 10.4. khOng hu hong bO duot do 16i Ngkr6i Ban, Ngkr6i Mua c6 quyen yeu cau Ngkr6i - Ban thay th6 may hoac mot phan cYa thiet bi hoac phy tiing vdi chi phi ciia Ngubi Ban theo dieu kien CIF Da Nang 10.8. Ngtr6i Ban bao dam la: a) COng suat san xuat tong Ong la 30.000h1/nam se &roc vat chat hoa nhu sau: + Cac me naubia 50h1, nau 3 tan m6i ngay, 241 ngay moi nam. + Viec len men va chda dyng trong cac thYng lien hop175h1(ca vO) + Viec nap chai lam trong 1 ca (cong suat bieu kien la 6.000 chai m6i gib)
b) San pharn: Bia Lager tieu chuan qu6c t6( loai Pilsner)12 P, 4% ruou w/w. DO clang khoang 21 IBU trong dieu kien san xuat binh thu6ng

c) Cac s6 tieu thy ve san xuat nhu trong phy lyc 11 10.9. Twang hop thir nghiem chic Wang khOng thanh cOng, Ngued Ban chiu trach nhiem lam lai thir nghiem nay trong Ong 15 ngay, viec thir nghiem lap lai nay cling khOng thanh cOng thi Ngubi Ban phai chiu mot khoan phat bang 0,75% &la tang gia tri hop &Ong cho moi phan tram day du cua cong suat nha may thap hon cong suat san xuat &roc bao dam cho moi tuan day du. Dong th6i viec thir nghiem chdc nang phai duoc lap lai cho den khi dat dtroc cOng suat bao dam Tang s6 khoan phat se nhat tri cho viec giao hang cham (diet' 8.1) Ong vdi khoan phat cho viec thin nghiem chdc nang khOng thAnh cong (diet' 10.9) trong bat 14 truong hop nao se khOng vuot qua 5,5% dm gia tong Ong cua hop dOng 10.10. Trueng hop vi nhang 4/ do thuOc Nguoi Ban cOng suat Nha may thap hon 94% ciia cOng suat san xuat ducic bao hanh sau cuOc chay thir chtic nang lap lai, Ngu6i Ban se bang chi phi dm minh thay d6i sira chira va/hoac 201

thay the thiet bi hoac phu tong c6 lien quan bang nhirng phuong tien thich hop trong yang 60 ngay nham dat dugc cOng suat duoc bao hanh; nett khOng dat duoc cOng suat nay, hai ben se gap nhau giai quye't van de nay
r

Trading hop hai ben khOng di den th6a thuan, viec tranh chap nay se duoc dua ra trong tai nhu diet! 13 dm hop clang nay 10.11. Trong van hanh neu c6 bat 1(3/ phan nao cUa thie't bi hoac may m6c khOng neu trong Hop &Mg nay nhung can thiet cho viec van hanh nha may, Nguai Ban se bang chi phi cUa minh giri nhiing thu nay tai dia diem nha may trong vOng 60 ngay tit khi nhan duoc thOng bao cita Nguai Mua 10.12. Nguai Ban se chiu trach nhiem cung cap bat IcS/b0 phan thiet bi hoac may m6c hoac phu tong thay the nao theo yeu cau cua Nguai Mua va chi phi cua nguai do sau thai han bao hanh 10.13. Nguai Ban bao dam rang thiet bi phu tro, thiet bi dien hoac phu tong thay the cung cap theo hop dang nay la clang 1)0 va phi' hop vai viec van hanh va bao duong cita nha may dongbO duoc cung cap theo hop clang nay 10.14. Truang hop c6 khieu nai Nguai Mua c6 thd th6ng bao cho Nguoi Ban cham nhat trong \Tong 45 ngay sau khi ket thtic thoi hart bao hanh mien la viec hu hong xay ra trong thai gian bao hanh 10.15. Khi ke't thac thai han bao hanh Nguai Mua se phat hanh mot thu xac nhan ke't thtic thai han bao hanh

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Di6u 11: Lap rap thin chdc nang va nghiOn thu 11.1. Lap rap 11.1.1. Truck khi lap rap cac bao bi se daoc m6 dd kidm tra vdi su c6 mat cua cac Quan 1T cong truang caa Ngir6i Mua va Ngt.r6i Ban; Tra6ng hop thay cac bO phan ghi trong cac ban ke dong g6i bi thieu hoac hu hong hai ben se chuan bi mot bao cao de cac quan 1Y/ caa cOng trung cua Ngu6i Mua va Ngu6i Ban kYi, &Ong th6i cling cung cap nhung mO to chi tier ve bao bi \Tao th6i diem kidm tra 11.1.2. Can cif \Tao bao cao tren, neu to thay cac bO phan may bi hong va/hoac thidu va trong tinh trang tot, khOng c6 dau hieu gi lA da bi m6 ra thi Ngu6i Ban se saa chug hoac giao khOng lay lien CIF cang DA Nang bO phan thay thd va/hoac b6 sung cang som cang tot 11.1..3. Tru6ng hop cac bO phan may thidu va/hoac ha hong do ben Ngir6i Mua gay ra thi Ngiroi Mua va Ngabi Ban se lap mot bien ban hop clang ve dieu kien giao hang hoac thay the va dieu kien thanh toan ve viec nay 11.1.4. Ngeri Mua chiu trach nhiem dua ra khOi cang va van chuyen bang chi phi caa minh tat ca may m6c, thiet bi va phu tAng thay thd to cang DA Nang - Viet Nam tai dia diem lap rap va cung cap moi phuong tien, nhan cOng va cac thu' gi can thidt de tien hanh lap rap may nick va thidt bi 11.1.5. Viec lap rap moi thidt bi do Nguoi Ban cung cap se &roc nhan vien caa Nga6i Mua tien hAnh du'6i sa giam sat va chi clan ky thuat cua nhan vien icy thuat Ngir6i Ban (theo phu luc 6) phi' hop v6i thiet ke", the tao, ban ve tinh nang, s6 tay chi ddn tat ca deu do Ngu6i Ban va/hoac nhan vien Ngu6i Ban cung cap; Hai quan ly cong trung se thOa thuan mot lich bidu th6i gian cho moi viec lap rap ding nhu viec chay thu khOng tai caa cac may va toan 1)0 nha may 11.2. Chay thu Trong vOng 7 ngay tit khi hoan thanh lap rap ma viec nay se dagc hai quan 13-7 cOng xac nhan, Ngir6i Mua se cung cap moi phuong tien, nhan cOng, cac nguyen lieu v.v... theo van ban yea cau caa Ngu6i Ban 2 thang truac nham lam cho viec thin nghiem chilt nang caa moi may m6c hoac nhom may c6 the diroc nhan vien Ngu6i Ban tien hanh nhu sau: 11.2.1. Thu nghiem cong suat M6i may hoac nh6m may se chay c6 tai lien tuc 7,5 tidn ngay trong 2 ngay lien trong diet' kien kS% thuat neu trong phu luc3 de chang minh rang cong suat trung binh moi gi6 khOng thap hurl s6 da neu o dieu 10.8 d6i vad may (cac may) lien quan Traerig hop cOng suat san xuat diroc bao dam nhu 6 dieu 10.8 khOng dat 203

duqc thl viec thir nghiem c6ng swat se du6c rihan vien Nguai Ban lam lai va v6i chi phi cUa Ngued Ban 11.2.2. Thir nghiem co khi: Tat ca may m6c cua nha may se duqc chat tai va chay c6 tai lien tuc trong 12 tieng/ngay trong 6 ngay lien trong cac dieu kien k y thuat nhu neu ct phu luc 1 de chang minh hieu suit co khi cUa may mop 11.2.3. Neu mot hoac nhieu may nick khOng dat du6c chtic nang du6c bao hanh, do cac hu hong cUa may, Nguoi Ban chiu trach nhiem thay the cac 1)0 phan hong hoac may mop bang chi phi cUa c6ng suit san xuat

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Dieu 12: Cac giap phep nii4p/xu6t khA'u


12.1. Vdi chi phi va rui ro ve minh, Nguai Ban se xin kip thai tir cac ity ban tuang ung ve xuat xu bat kd gig)/ phep xuat khau can thiet nao cho viec xuat khau va sir dung trong nu6c CHXHCNVN thiet bi, nha may vat tu, phu tang thay the", tai lieu ky thuat va cac thd thay the, neu c6, va vi muc dich cUa cac nghia vu cUa Nguai Ban cUa hop d6ng nay not chung 12.2. Tat ca gigy phep xuat khau can thiet cho viec giao hang se duoc Nguai Ban cung cap cho Nguai Mua trong - yang 30 ngay sau ngay vao c6 hieu luc cUa hop dong nay Twang hop gigy phep xuat khau kh6ng can thiet chO viec xuat khau sang CHXHCNVN thiet bi nha may, cac vat tu phu ding thay the, tai lieu ky thuat, cac 1)0 phan thay the thi thay cho gig)/ pile') nay Nguai Ban se cung cap cho Nguai Mua mot thu neu rang gig)/ phep xuat khau kh6ng can thiet cho cac chuyen giao hang 12.3. Hieu luc cua .giap phep xuat khau nay se dai hon thuc hien cac nghia vu cua Nguai Ban thuOc hop dong nay it nhat la 60 ngay. Vdi chi phi va rni ro thuOc ve minh Nguai Ban se..keo dai thai hieu cua giap phep xuat khau theo thai gian cUa bat ky su charn tr8 - nao xay ra trong khi thuc hien hop (long nay 12.4. Nguai Ban phai chiu va tra moi thud" cva/hoac chi phi ngoai CHXHCNVN ca khi nhfing thin thud" nay gan vdi thiet bi nha may, cac vat tu phu tang thay the, tai lieu ky thuat, cac 1)0 phan thay the neu c6, duot xuat khau do mot luat moi va/hoac mot phap lenh va/hoac nhang quy dinh c6 tinh luat phap do Chinh phu hoac bat ky Nha chirc trach nao khac ngoai CHXHCNVN cOng b6 ma khong c6 bat ky su can thiep nao cua phia Nguai Mua 12.5. Nguai Mua vdi chi phi va rui ro cUa minh se xin bat ky giay phep nhap khau nao do Nha chtit trach yeu cau tai CHXHCNVN ca cho viec nhap khau ,moi thiet bi nha may, cac vat tu, phu tang thay the", tai lieu ky thuat va cac 130 phan thay the, neu c6, va cho ca muc dich cUa Hop d6ng nay not chung 12.6. Thai hieu cUa giay phep nhap khau nay se dai holt thai gian thuc hien cac nghia vu cna Nguai Mua thuOc hop (long nay it nhgt la 60 ngay. Vdi chi phi va rUi ro thuOc ve minh Nguai Mua se keo dai thai hieu cua gig)/ phep nhap khau nay theo thai gian cua bat ky cUa su cham tr8 nao xay ra trong khi thuc hien hop dong nay 12.7. Nguai Mua phai chiu va tra moi loai thud" nhap khau va Hai quan, cac th(r thud" va/hoac chi phi khac dang hien hanh tai CHXNCNVN hoac dang c6 vao thai gian ky hop dong hoac danh vao viec nhap khau thiet bi nha may, cac vat tu, phu tang thay the, tai lieu ky thuat va cac 130 phan thay the, neu c6, do mot dao luat va/hoac phap lenh va/hoac cac quy dinh c6 tinh chat luat phap va do Chinh phu hoac ca quan chin trach nao qui dinh trong CHXHCNVN ma khong c6 bgt ky su can thiep nao cna phia Nguai Ban

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Dieu 13: Trong tai va luat ap dung 13.1. Neu vao bat kSi luc nao nay sinh su tranh cai hoac khac biet nao tir hoac lien quan tai hop dong nay thi m6i ben sir gdi van ban cho ben kia ve su ton tai cua tranh cai hoac khac biet dO. Sau khi nhan dugc van ban thOng bao do, ye nguyen tac cac ben se c6 gang giai guy& viec tranh cai hoac khac biet nay met cach him nghi bang viec gop y chung tren tinh, ,than thi'en chi va Hen phap hau hieu. Neu viec giai quyet hau nghi khOng the dat dugc giira Nguei Ban va Nguei Mua thi su tranh cal va khac biet nay se dua ra met trong tai cUa Pheng Thuong mai Qu6c to Ct Paris hien hanh tir 1/6/20... Thanh phan trong tai se gem 3 ngtrai trong tai, 2 trong s6 nay se dtrac m6i ben 14 hop (long chon met cach tuong dng, va nguei trong tai thir 3 (Chit tich), vai trela Chit tich cua phien tea, se dugc trong tai cita cac ben l4 hop clOng ding chon Chit tich nay c quec tich khac vui quec tich cita cac ben 14 hop &mg va c6 quec tich cUa nuac c lien quan he ngoai giao vui dat ntrac cUa hai ben 14 hop dong Ben mong mu6n dua viec tranh cai hoac khac biet nay ra trong tai se thOng bao cho ben kia ve guy& dinh nay bang thu bao dam neu re ten va dia chi cita ngtrai trong tai throe chi dinh, nguei nay c the la cong dan cita bat kS , ntrac nao, cang nhu nei dung cUa tranh chap, ngay va se hop (long nay Neu khOng c6 thOa thuan khac, ben kia se chi dinh bang van ban trong \Tong 4 Wan le ke tir ngay gui la thu cho Nguoi trong tai cUa minh, nguei nay cling c the la cong dan cUa dat nuac bat kS , nao va se thong bao bang thu bao dam cho ben thd nhat ye ten va dia chi cita nguei trong tai do minh chi dinh Neu ben nao cid nhan duot thOng bao ye tranh chap hoac khac biet cc-) lien quan den trong tai ma khOng chi dinh dugc ngtrei trong tai thd hai trong thai gian da chi dinh hoac nett hai trong tai ca hai ben 14 hop dOng khOng chi dinh dugc nguei trong tai thd ba (Chit tich) trong veng 4 tuan le ke tir ngay chi dinh nguei trong tai thd hai, thi viec chi dinh se do Chit tich Phong Thuong mai Qu6c to & Paris, Phap, lam 13.2. Su guy& dinh cita tea an trong tai se dugc thkrc hien viec be phieu theo da s6 ngay sau khi chon ducfc ChU tich hoac chi dinh ducrc Chit tich phit hop vai cac dieu kien cita doan nay ten co sg va pith hop vai cac dieu kien va dieu khoan ca hop (long nay va trong twang hop nett hop dong khOng chi re thi luat thtrc chat cita Pita') se dieu hanh 13.3. Trir khi c them thuan gi khac neu kh6ng bat kS7 viec trong tai nao ding xay ra tai Pari, Phap. Viec trong tai se thkrc hien bang tieng Anh 13.4. Quyet dinh cita tea an trong tai la t6i hau va rang buec ca hai ben. Cac chi phi lien quan den trong tai do ai tra se do su phan quy6t cita tea an trong tai nay 13.5. Su tranh chap hoac khac biet dugc dua ra trong tai khOng lam tri hoan chdc nang cua hai ben 14 ket hop (long 206

Dieu 14: Bat kha khan 14.1. Moi su kien va tinh huOng xay ra sau khi k9 kOt hop (long nay da vao hieu lut va xay ra do nhang thuc to khOng dkr kien truck ma khOng tranh duoc ye tinh chat dac biet vuot ngoai 9 chi va su kiem soat cua cac ben hop dong nay thi se dugc coi la cac twang hop bat kha khang; trong pham vi dinh nghia tren, cac trueing hop bat kha khang la thi du: cac tinh trang chien tranh hoac chien tranh tuyen b6 hoac khOng tu9en b6, Ong dat, hea hoan, lut, bao lon, cac vu nO, cac benh dich, cac cuec tong bai cOng va/hoac cac cuec bai cOng do Lien doan thuong nghiep cua nganh cOng nghiep lien quan to chat met cach chinh thk va thien tai tunhien khac Nhung trueng hop sau day khOng duoc coi 1a bat kha khang, cac tai nan k9" thuat trong cite tao (su loai 1)6 vat dtic hong, su sira chira sau khi hOng), thien nhan cOng, nguyen lieu, phuong tien van chuyen va nang luong, SIX cham tre va/hoac that bai cua cac nha nhan than phu cua Nguai Ban, cac cuec bai cOng dia phuong khOng do Lien doan Thuong nghiep not tren to chk, tam dimg va ngimg cOng viec 14.2. Ben yeu cat( cho thoat khoi viec thuc thi nghia vu thuec hop (long nay do bat kha khang se th6ng bao cho ben kia ye van de nay bang dien tin hoac telex ngay lap tdc nhung khOng duoc hon 10 ng'y sau khi bat dau va ket thtic bat kha khang. Dien tin hoac telex ngay lap ttic nhung khOng duoc hon 10 ngay sau khi bat dau va ke't thUc bat kha khang. Dien tin hoac telex nay gem cac chung cu cua cac su kien, tinh chat cua cac tinh huong va ngay bat dau va ke't thLic va cac hay qua se duoc xac nhan bang thu bao dam giri may bay trong veng 10 ngay sau ngay gui dien tin hoac telex tren, thu nay se duoc PhOng Thuong mai (va COng nghiep) xac nhan ve su ton tai, keo dai va de chinh xac cua cac tinh huong da thong bao 14.3. Vao bat k9 thei gian nao trong qua trinh tie-p tuc cua hop (long nay, nen ben nao khOng the hoan thanh toan be hoac arng phan bat k9 nghia vu nao cua hop &rig do bat k9 cac tinh hucing bat kha khang nao nhu dinh nghia tren day va bat kha khang nay da duoc thOng bao chinh xac nhu th6a thuan, ben yeu cau thoat khOi viec thuc thi cac nghia vu cua minh thuec hop (long nay do bat kha khang se dugc mien cho ve cac chain tre trong viec thk thi cac nghia vu cua minh va se duoc keo dai met cach to deng theo khoang thai gian tuong duong khoang thei gian cham tre do bat kha khang gay ra 14.4. Neu cac thU tuc neu Cr diem 14.2 khOng duoc tuan thU, ben tuyen b6 bi anh ht.:Ong cua bat kha khang se bi tuck quyen cua minh ve yeu cau thoat khOi viec thuc thi cac nghia vu cua minh do bat kha khang not tren 14.5. Nat bat kha khang not tren tie"p tuc hon 3 thang lien thi hai ben k9 ke't hop dOng trong thang thd to se tham khao y kien ran nhau va guy& dinh cac buck can co de tranh nhung chain tre hon nib 14.6. Twang hop hai ben 1(9 hop &Ong khOng dat dugc them thuan trong thang do hoac do bat kha khang viec cham tre keo dai hon 5 thang hai ben se gap ga lan nhau lai de tim giai pita') cu6i ding 207

Di611 15: Nhting dieu kiC'n chung


15.1. Tat Ca cac phu luc neu trong va kern theo hop d6ng nay la cac phan khOng the tach roi ciia hop dong nay 15.2. Moi sira doi va phu them vao hop dong nay chi c6 hieu luc khi bang van ban va duoc hai ben 14 hop &rig 14 15.3. Nguoi Ban bao dam vai Nguoi Mua rang NOM Ban c6 day du quyen son hiru doi voi cac pa - tang va phat mink moi lien quan dCii vOi thiet bi, tai lieu k y thuat, cac quy trinh c6ng nghe, kien thdc va cac kinh nghiem de cung cap cho NO:A Mua theo guy& dinh cua ngu6i do nham de d6i tuong cita six dieu tra c6 the duoc sir dung mot cach de dang cho muc dich duoc m6 Ong ma khOng xam pham theo bat cur cach nao cac quyen Ciia ben thin ba; hai ben hieu la ben thir ba khOng bao gier la bat 14 t6 chirc hoac ca nhan nao cua CHXHCNVN. Truong hop cac ben thd ba c6 khieu nai gi do vdi Nguoi Mua hoac cac khach hang cua Nguoi Mua trong CHXHCNVN ye sur vi pham nay thi Ngu6i Mua se thOng bao ngay cho Ngubi Ban ye viec khieu nai nay va Nguoi Ban se bang chi phi cUa minh va chiu rui ro tim cach giai guy& viec nay 15.4. Sau khi 14 hop &rig nay moi thoa thuan mieng va van ban truOc kia deu khOng con gia tri va bi huy b6 15.5. Moi thd thud' khod lien quan tdi viec thdc thi hop &Ong nay neu co trong CHXHCNVN se do Nguoi Mua chiu va trong cac nu6c khac se do NguOi Ban chiu 15.6. Bat kS7khiai nai nao tit viec thdc hi'en hop dong nay chi c6 the xay ra khi hop d6ng da vao hieu luc 15.7. Moi khieu nai thuOc hop dong nay se duoc lam thanh van ban va giri bang thu bao dam may bay. Ngay dang 14 o buu dien se duoc coi IA ngay lam nhung khieu nai nay. Viec tra 16i cho nhung khieu nai nay phai dugc lam ngay nhung khOng cham qua 30 ngAy sau khi nhan duoc khieu nai. Trong nhang twang hop khan cap cac khieu nai co the duoc lam bang dien tin hoac telex va duoc xac nhan bang van ban nhu da duoc mO to trong doan nay 15.8. Ngu6i Ban va cac chuyen gia cua minh se giu bi mat moi ban ye, s6 lieu co s6; tin do Ngithi Mua cung cap va/hoac do cac chuyen gia nay tlf biet trong thoi gian nu& NguOi Mua Nguoi Ban va cac chuyen gia cua minh se khOng c6 quyen ti'et 10 nhimg ban ye, so lieu co son, tin tiro va tai lieu (g6m ca not dung cila hop (long nay) lien quan den doi tuong nay cho ben did ba. Tuy nhien, cac nha chdc trach va cac ngan hang c6 lien quan se khOng duoc coi la ben thin ba
Ngu6i Mua va nhan vien caa minh se khOng c6 quyen tiet 10, cac ban ve, s6 lieu co so, tin tirc va tai lieu (gem ca n0i dung hop (long nay) lien quan tdi d6i

208

Wong nay cho ben thin ba; tuy nhien, cac nha chile trach va cac ngan hang se kh6ng &roc coi la ben thd ba 15.9. Ngueri Ban se chiu trach nhiem d6i vdi t6n thgt va hu hong d6i vdi tai san ma chinh la nha may cid 14 hop (long nay cling nhu voi thuong tat cac chuyen gia, gom ca cai chat do su bat can cua cac chuyen gia NguOi Ban trong pham vi bao hiem nghia vu dan su cua minh thy theo cac truong hop cu the 15.10. Ngutii Ban se khOng chiu trach nhiem d6i vdi cac t6n thgt kh6ng truc ti6p nay

209

Dieu 16: Hieu

ciia hop (long

Hop (long nay tit)/ thuqc vao sir xac nh4n cua ca Ngued Mua lan Ngueri Ban trong yang 40 ngay tir khi kY hop dong nay. Hop dong vao hi4iltrc khi Nguqi Ban nha'n duqc ca tin dat coc 15% va tin dung thu.

210

Dieu 17: Dia chi phap 1ST cna hai ben


17.1. Dia chi phap ly cua Nguoi Mua la: T6ng Cong ty Xuat nhap khau thie't bi toan 1)0 va k9 thuat (TECHNOIMPORT) 16 - 18 Trang Thi - Ha Noi - CHXHCNVN

Dien thoai s: 53776, 54974


S6 Telex: 411230 (TECHNOIMPORT) 17.2. Dia chi phap lY cua Ngu6i Ban la: Danbrew Ltd Rahbeks Alle 21 DK - 1801 Frederiksberg C, DAMARK S6 di0 thoai 45 31 21 09 18 S6 Telex: 16124 (DBREW DK) Hop dong nay ducfc lam thanh 4 (b6n) ban, 3 (ba) cho Ngued Mua va 1 (m0t) ban cho Ngu6i Ban 1(5,' tai Hue" ngay 10 Mang 8 mim 20... Thay mat Ngu6i Ban O. DANBREW (Dci Thay mat Nga6i Mua LE VUONG (Do 14)

211

Phu lyc 1

MO TA CHUNG DAY CHUYEN CONG NGHE

San pham:

Bia &roc san xuat IA bia Lager 12p Gao, 30% Hat Htip-lOng

Nguyth HO ban din: Malt, 70%

Nguyen lieu tieu thu:


D6i v6i viec san xuat mot me 50h1 hem lanh s6 Wong cac nguyen lieu ban dau phai can IA: - Malt (chi& suat 76%): 600kg - Gao (chi& suat 80%): 250kg - Hap-lOng (7% a-xft): 4,6kg

Nghien 50kg malt va 250kg gao bang may nghien va trOn vai 12,5h1 mrac trong n6i nau gao & nhiet dO 50. H6n hop do &rot dun den 75 C va loft gift 6 t() trong10phui tie-p tac &roc dun den 100C va de s6i trong 30 plait
Cling hic do nghien 550kg malt bang may nghien malt va ngam trong not ngam/hem v6i 17,5h1 nu6c o nhiet dO 47 0 C. I-16n hop fir n6i nau gao hic nay dtroc born den n6i ngam/hem va & do nhiet dO cua h6n hop nay dugc tang den 67 C. Nhiet dO do &rot Wu gift trong 60' va roi h6n hop ngam duqc dun den 76 gift tir 5 den 10 phut den khi c6 phan t.ing i 6t am CvaHsu T6ng hon hop ngam &roc chuyen den not loc, a do hem tinh khiet &roc tach khOi cac hat do. Sau khi da tach hem lan dau ra, bay gib cac hat &roc rac nuac 76 C den khi nong dO trong not nau hem khoang 10-11 P; tong chat chtla trong not hem khoang 55 den 58h1; trong khi ra.c nu& clO ming cua n6i nau hem bat &du tang va den khi not day thi nhiet do IA 100C Bay gia Hap-lOng dtroc cho vao va tie'p tnc dun sOi khoang 90 plait den khi ming dO la 12 den 12,5 P. Nhirng hat ba tir not loc &rot nit het vao xe day nh6 va sau do ban cho nOng dan lam thdc an gia suc Khi viec nau hem hoan tat thi hem &rot bum tai thong khugy & do cuc von &roc tach ra 212

Sau 30 plait luu lai tai thUng khuay hem dugc barn qua may lam lanh hem, sau 1 gib nhiet dO ha dr 94 C xu6ng 10 C, hem lanh dugc th6i khi bang viec th6i khi hem khoang 35m1 khi/lit hem, hem da dugc th6i khi dugc chuyen den mot trong nliling tilting len men (cac thUng len men lien harp) ma no c6 the U dugc 3 me, tirc la 150h1 tinh Vdi me nail thd nhat den mot thUng len men nao day, toan 1)0 s6 men can cho 3 me flu phai dugc phun vao, tilt la 1501it; men do dugc giu trong 2 tilling chira men c6 do lam lanh va may khugy va c6 the dung den 10 Ian; m6i Ian men dugc dung trong mot thong len men, thi s6 lacing tang gip 2 Ian. Ba men c6 the dugc xir ly vdi 2% a-xit propionic va ban cho nOng dan lam thirc an cho lon Bay gib hem trong thUng len men va nhiet do cho phep tang den khoang 16 C,dpsuitkhoang13e,5br&dontOgucirla.S4nyb ket thdc giai doan len men, r6i thi no dugc luu lai trong 48 gib or 16 C de giam b6t chat diacetyl den mix thap dudi 0,15ppm (mg moi kg), MI& khi bat dau viec ha lanh trong thUng xu6ng -1 C, ngay khi viec ha lanh nay bat dau thi men se ling xu6ng va ngay lap tut dugc lay ra va born den mot trong 2 tilling chtia men, khi bia trong thiing len men da dat den -1 C thi no dugc luu lai or do tir 1 den 2 ngay; truecc khi bia dugc barn den may loc dat (kieselguhr), lop can cuoi ding trong thUng, khoang lhl, dugc thao ra ngoai; viec loc bia xay ra trong may loc &it va loc xi-phOng; bia dugc kiem mUi vi va dO CO 2 trudc khi dua ra de loc Bia da loc dugc dua den hai thimg chira bia trong ma bia nay dugc nap day vao hai thUng nay trong viec doi ap cUa CO2 0 1,2 bar; khi bia dal dugc kiem tra ve CO2 min vi va 010 due, no dugc clan den day chuyen chi& chai Day chuyen chi& chai bao gbm thiet bi de chi& chai Thiel bi chief chai phu hop cho viec van chuyen loai chai 0,5 lit dung nhieu Fan vdi cOng suit danh nghia la 6.000chai/gier Nhimg chai mua ye dugc da bang tay va chuyen bang bang chuyen den may rda chai to dOng, & do chai dugc rira sach bang mit va nu6c Nhimg chai sach dugc kiem tra bang mat roi dugc chuyen den may chief/dung nut, & do bia dugc dien day va dugc (long nut. Bay gib chai thanh pham dugc chuyen den may dan nhan. Chai da dan nhan dugc thing bang tay vao ket thua va chuyen kho chda thanh pham

Dieu kien ye sinh


Thiel bi bia dugc lam ve sinh nher tram CIP sir dung nude dugc thu h6i lai or lira sach va sau do trong bang nude sach Ian rira dau va mit an da va a mit

Thik bi phu try:


Nude chat lacing tot co dugc to nguon cung cap dm thanh ph6 va throng 213

Ong chinh dan toi nha may bia va he th6ng 'Ong trong nha may se do nha may tu cung cap Met thing nu& nong duoc cung cap dung de thu hoi nu& n6ng tin may lam lanh hem Xuang lam lanh boa gem hai may nen NH3 ma no trung chuyen qua met may chuyen dei nhiet, san xuat nuoc gly-col to -4C den -5C de sau do dung cho viec lam lanh hem, viec lam lanh thUng china men, lam lanh thUng len men Hai ntrOc duoc tao ra to nei hoi va cung cap cho nha nal bia, day chuyen chief chai va tram ve sinh CIP Khf nen duoc sinh ra nhO met may nen kW va duet dung cho viec thei khi nen, viec lam can cac thOng len men va cho van tu Ong Thik bi thu h6i CO2 c6 dtroc cung cap va thiet bi do c6 the thu hoi duck 60 tan CO2/nam, trong do 20 den 30 tan se duoc dung cho nha may bia, phan con lai c6 duoc ban ra ngoai cho nhung muc dich khac nhau, till du: han hoi va viec carbonate hoa cac loai nuac giai khat Nguon dien c6 duec tit cac don vi cap dien 3 x 380V + 0 + da.t, va nha may bia se dugc trang bi met bang phan ph6i dien chinh c6 cau dao, cau chi cling nhu cac bang nhanh van hanh cho ding be phan Viec tu deng hoa dua tr'en co so van hanh bang tay nha nau bia va the bier' bia con thOng nail, may lam lanh hem va thing len men dux diet' khien to deng ve nhiet de XuOng lanh, xtrOng hoi, may nen Ichi va xtrang thu hoi klif CO 2 hoan town to Ong DOi voi day chuyen chiet chai rnoi may dtroc to dOng cho viec dieu khidn nhidt va ngang may Thiel bi cho phang thi nghiem: Cac thi6t bi co ban nhat dugc cung cap nhu: Dong h6 do nOng dO CO 2 do dO mu, may do dO deo, nhidt 1(6, may do dO pH, do thay tinh cac loai va thi6t bi thir dO con

914

Phu lyc 2

THONG SO KV THUA T CUA BIA

- Ming do 'P - DO thut Fdn men, % - Mau sic, EBC - pH - DO clang - DO ma cuoi ding, - VDK, ppm - CO2 , - DO con

12,0 +/-0,2 67 +/-3 7 +/-1 4,2 +/-2 21 +/-3 EBC /07 0,15 w/w 0,50 +/-0,03 4,0 +/-02

215

Phy lyc 3

BANG Kt MAY MOC THIET BI

1.0. He th6ng van chuy6n malt


1.1. May nghi6n malt
1.2. Thong china hat malt G5u tai va bang chuyen tai 1.3. He th6ng tach bui va lam sach 1.4 Bang dieu khien 1.5. May xay gao va van chuye'n May nghien malt 4 truc can, a -1g suat 600800kg/gid Thiing china hat, 800kg, lam b5ng that) mem. Gau tai, 1.000kg/gid, thep mem May lam sach sa bQ malt, may thOng gio va xyclOn, thep mem Vdi cac nut b5m de khdri Ong va ngUng may, thep son. Ngudi mua cung cap

2.0. Nha nau bia:


2.1. N6i ngam hat/hem
Dung tich ca v 79h1, be bAng thep khOng gi co ao nung nong, not hai hem ben trong 3,2m 2 va may khugy. Wang kinh be: 2.500mm. 2.2. Noi phu Dung tich ca va 24 hl, be bang thep khOng gi c6 cach nhiet vdi ao nung nong va may khuay lam b5ng thep khOng gi. Duang kinh be: 1.400mm. Dung tich ca v 67h1, thep khOng gi &rang kinh thong 2m Dung tich ca vi574h1, be b5ng thep khOng gi ThOng nudc nong 100h1, nhiet cIO 80 C, b5ng thep khOng gi co ao nung nong. Cho viec d5n sp bia va nudc, barn Ii tam, may trOn nudc, cac loai van... Bang dieu khien cac nut b5m de khdri dOngingUng Ong ca, sa do chi dan truc quan, thep khOng gi.

2.3. ThOng loc 2.4. ThOng khuay 2.5. Thong dung dich nau 2.6. Bcrm, cac 6ng va d5u n6i 2.7. He thong dieu khien

216

3.0. Thiel bi van chuyen hem:


3.1. May lam lanh hem 3.2. Thoi khi hem May lam lanh pliang 50h1/gier, thep khOng gi. May th6i khi hem 30011t/gia bhng thep khOng gi.

4.0. Tram ye sinh may tai cho (CIP):


4.1. Tram CIP nude n6ng 4.2. Tram CIP not lanh Be 300 lit vai barn lien hap cho hem va CIP, bAng thep khOng gi. Cac be 2x500 lit + 800 lit bAng thep khOng gi, barn ly tam, bang diet.' khien cho cac chuang trinh CIP.

5.0. Cac thimg len men va thimg


5.1. Cac thiing len men va thOng 9 thimg bang thep khOng gi vdi cac ao lam lanh va chtla hinh tru - con cach nhiet, cot the') lien hop cho viec dieu khie'n ap suat, canh tren voi van chan khOng, van an toan, 6ng CO2/CIP, bc) phun hinh cau. ap suat thiet kg 2 bar. Dung tich ea v6: 175h1. 5.2. He thOng kie'm tra nhiet d0 He thong kik tra nhiet to clang dat trong hap thep son.

6.0. Cac thimg club men:


6.1. Cac thOng chila men Hai thUng b5ng thep khOng gi c6 ao lam lanh va may khuay bao gam bo phan kik tra nhiet. Dung tich tinh mat thong la 300 lit. Bam pit tong quay, bhng thep khOng gi cong suat 22h1/gio.

6.2. Barn men

7.0. XurOng loc: 7.1. Born loc


7.2. May loc dat Kieselguhr Barn ly tam. 50h1/gio, 3.000 yang/phut bar, 2,2kw. May loc b5ng the') khOng gi 30h1/gia vdi cac tam phang va khung lohng thep khOng loai 75 lit va born lieu Itiang.

217

7.3. May loc xi-ph6ng 8.0. Cac thong chtia bia trong:

May loc xi - phOng b5ng thep khOng gi, 30-50 hl/gid, ap sugt lam vigcldn Mgt 8,5bar.

8.1. Cac thOng chUa bia trong hinh try Hai thOng bAng thep khOng gi, co ao lam lanh va cach nhiet, cac chi tigt khac nhu 5.1, dung tich ca - con v: 175h1. 8.2. He th6ng dieu khign nhiet dO He thong dieu khign nhiet ke to Ong trong hop thep son.

9.0. Day chuyen chiel chai:


9.1. Bang tai trong luc 9.2. Ban than ket bia 9.3. Cac b5ng chuygn chai 9.4. May rira chai Cho viec van chuygn thiing cac-tong va thong g6 thua chai d5y hoac vO chai. Dai:16m. Cho viec thao chai bia khai ket b5ng tay. chuygn chai Bang don, bang kep ,va bang 3 r6ng va chai thanh ph5m gitla cac may khac nhau. B5ng thep mem, son c6 cach nhiet va phu bgng thep khOng gi. COng sual danh nghia:6.000 chai/gid.

9.5. May chigt chai, may clang nut May nap bia va dong nut lien kW vdi tong sugt: 6.000 chai x 0,5 lit mot gid. 24 van nap voi viec rut chai than khOng sobO va 6 d5u clang nut. Gay trot ludi don, kgt eau so cap b5ng thep khOng gi. 9.6. May thanh trong Dua tren ca cau b5ng chuyen 23 dai b5ng thep khOng gi, dai 10,6m. COng sugt danh nghia: 6.000chai/gid. 9.7. May dan nhan 9.8. Ban clang ket 9.9. Kim tra 9.10. BOi ton De' dan nh5n to dOng. Cho viec dong chai b5ng tay vao ket thua, 4 dai, dai 6m. Kim tra chai sach b5ng mat. He thong b6i tran bang chuyen dai bao gam nhimg khay b5ng thep khOng gi, de bei tran bang dung dich xa phOng. khai dOngingimg chay Cac tong tat dan hang may chinh khi chai dang dan hang tren b5ng chuyen. Ong va chai thanh May dgm chai ca khi de chai (pharn.

9.11. He th6ng dieu khign

9.1.2. Dieu khign san xugt

218

10.0. XuOng phu trq:


10.1. Mang lam lanh )(Yang lam lanh b5ng glycol c6ng suat 154.000 kcal/gior, bao gom may nen khi may lam lanh ki6u 6ng va ki6u bugng va may ngung ki6u bac hal, cac barn glycol va thong glycol. MOt may nen khi co may say khOng khi, tong suat: 0,7m3/phOt. FBU 60, 60kg/gid bao g6m thiing china 6 tan va tram nap hinh try. N6i hal cao ap vdi tong suat 2.000kg hcri/gid Tom thUng nudc nap, thiing china d5u. 30 binh, m6i binh vai 46,7 lit, cong suat gas 7m 3 duac nap d5y vai khi argon.

10.2. Xuang khi nen 10.3. Mang thu h6i 002 10.4. >Wang n6i hal 10.5. Binh china CO 2

11.0. Cac thiel bi ding ng4, co khi va


11.1. Cac 6ng, barn, d5u ngi Cac 6ng, barn d5u n6i, 6ng mem, cac phu kien va chat cach nhiet de ghep n6i cac thi6t bi cong nghe va xuang phu trg. 6ng chuy6n bia b5ng thep kh6ng gi, cac ong phu trg b5ng thep mem. Trir 6ng nudc la do dia phuang to cung cap. MO bang phan ph6i dien chinh va mot bO hoan chinh va cap va cac khay cap de n6i cac thi6t bi.

11.2. Bang dieu khi6n chinh va cap

12.0. Thiet bi phong thi nghi01:


Kink x4 k6 cam tay - may do CO2 - may thir nghiem kh6ng khi - phich 25 lit carberg - may do d0 pH - can phan tich - can c6 khi - may so sanh Livibond bi de xac Binh dO ruou (thie't bi tinh loc cho ca nu6c fan ruou, bon nuoc nhiet tinh loc) - may do clO sac-ca-r6 - Cdc nhiet ke - do thI nghiem bang thily tinh - hod chat cac loai.
-

13.0. Phu tong thay th6:


Cac phu tang thay th6 duoc kien nghi theo nhu phu luc 4.

14.0. Vi0 giam sat lap may/chay thir va dao tao:


N40t chuyen gia giam sat vdi th6i gian 8 titan - se giam sat viec lap dat va chay thir nha may va mot chuyen gia nau bia voi th6i gian 8 tudn cho viec chay thu' va dao tao nhan su cf.ta Ngtr6i Mua. Cac chi phi cho ye may bay di vo cua chuyen gia va cong cu chuyen diing cua chuyen gia gidm sat da g6m vao tri gia hgp dong. 219

Phy lyc 4 PHU TUNG THAY THE

M64 s6 tien la 3% cUa gia tri FOB dd &roc danh cho phu thug thay the. Pham vi thuc to cua phu ding thay thE se duoc thoa thuan girra NguOi mua va Ngubi Ban tren co so ban chao gia cho cac phu tang thay the. Ban nay se duoc girl cho Nguoi Mua kh6ng cham qua 6 thang ke tit khi hop along vac) hieu lkrc.

220

Phy lyc 5
NGUYEN LIEU CHO 3 THANG DAU DO NGU'OI BAN CUNG CAP

1. Malt (chi6t sugt 76%) 2. Thip-lOng (7% alfa) 3. Dal loc (kieselguhr) 4. Gigy loc, 60x120cm 5. Tui loc 6. Cdc phu gia 7. Men cay 8. Hod chgt cdc loci 9. HO clan

102 tan 1.125kg 1.792kg 200 t6 20 chi6c 140 kg 3 chi6c 2,4 tan 0,5 tan

Tgt ca cdc nguyen li6u can thiet khdc nhu gdo hoc du6ng, chai, nit, nhdn, thUng cat tong, thUng g6 thug... do Ngu6i Mua ter cung cap.

221

Phu lyc 6
NHAN SU. CUA NGUtii BAN VA CUA NGUOI MUA

Nguoi Ban se cif mot chuyen gia giam sat trong 8 tun de giam sat viec lap may, va chay thin nha may va mot chuyen gia ndu bia thed gian 2 thang de dao tao nhan su cua Nguoi Mua. Nguoi Mua se to lap dat may.

222

Phy lyc 7
TAI LIEU KY THU8T

NguOi Ban se cung cap cho Ngu'&i Mua tai lieu kSi thuat sau: 1. Trong \Tong 2 thang tit khi hop (long vao hi"Cu lu'c: - So' do tang the cling truOng, tY le: 1:200 - Ban ve, tY le: 1:100, bao gom cac vi tri caa mo de lap may. - Ban ve m6ng may: 1:50 - M6 to chung ve nha xtrOng, till du: Yeu cau ve hoan thien va nguyen vat lieu can thiet. Tren co se( do Nguari Mua c6 the thiet ke va bat ddu viec xay dung nha xu&ng. 2. Trong yang 5 thang tit khi hop (long vao hieu - So (16 ding nghe do dien

3. Hai thang sau moi chuyen hang: - Tai lieu hiking dan bao dung may - Tai lieu haang dan van hanh nha may - Tai lieu huong clan phu tang thay the - Cac ban ve ye lap dat. - Tai lieu chi dan ve lap rap.

223

Phu lyc 8 LICH TR1NH THVC HIEN VIEC GIAO HANG, LAP RAP, CHAY THU VA VAN HANH NHA MAY

May m6c va thiet bi se duot giao thanh 2 chuyen: - Chuye'n 1: 6 thang sau khi hop dung vao hieu luc. - Chuyen 2: 8 thang sau khi hop d6ng vac. hieu 14c. Viec chay thin se ti'en hanh sau khi lap rap xong may m6c va duqc danh gia la da hoan chinh, kh6ng qua 14 thang tir khi hop dong \Tao hieu luc. Viec san xuat se bat dau mot thang sau d6 NIA hoan chinh viec san xua't thang tiep sau.

224

Phu lyc 9 MAU TH1U'BAO LANH DO NGAN HANG NGU'en BAN PHAT HANH

Mau: Thu bao lanh cho lan thanh toan thin nhgt (tien dat coc) va viec giao hang. Cho: Nguii Mua... Ve viec: Thu bao lanh khOng the hug, ngang cua chung tOi s6 Ngu6i thit htong: Ngu6i Mua... Can cu vao h6p dong s6..... day goi la "Hop d6ng" dugc ky giita TechnOimprt Ha Ni (dtr6i day goi la nguoi thu hung) va COng ty Danbrew Ltd (duoi day goi la Nguoi Ban) ngay.... ve viec cung cap thie't bi, nguyen lieu, dich vu ky thuat. Tdng s6 tien DEM... (bang chit...) theo yeu cau cua Nguai Ban chung toi m6 sau day mot thu bat) lanh khong huY ngang s6.... cho ngtr6i thu hung &rot hdong. Sau day cluing tOi bao lanh cho cac Ong khOng the huY ngang xem nhu la khoan no cua chinh chung tOi cho mot s6 tien... DEM dam bao an toan cho viec hoan tra, toan b0 hay mot phan cua s6 tien ma cac Ong dat coc trong truOng hop khach hang chting tOi khOng thuc hien ducic trach nhiem cua ho diii vdi cac Ong.

Trach nhiem cua chimg tOi theo nhu bao lanh nay se duqc han dinh den DEM... (bang chit...) Thu bao lanh c6 hieu luc ngay khi chting tOi nhan duot viec thanh toan.... DEM cho viec sir dung vO dieu kien cua Cong ty Danbrew Ltd theo tham chieu d6i v6i bao lanh s6... Twang hop COng ty Danbrew Ltd dua ra bat ky nhimg viec tir choi tra tien thuOc bao lanh nay thi viec thanh toan phai chi thoa thuan giira hai ben hoac phan guy& cua Toa an.

225

Chung tOi duoc thOng bdo la Ngan hang Ngoai thuong Viet Nam se ma mot thu tin dung chting tir khOng huY ngang cho tong s6 tien DEM cho nguoi thu huOng la COng ty Danbrew Ltd, thanh town tai DEN DANSKE BANK A/S, COPENHAGEN, DENMARK. Thu tin dung chting tix khOng hay ngang nay la 85% T6ng tri gid dm hop dung s6 la DEM. Bao lanh nay duqc to &Ong giarn can cu vao viec xual trinh nhang chting tir giao hang den Ngan hang DEN DANSKE BANK A/S thu6c va phit hop Arai thu tin dung chang tit da ke tren bang 15% cUa tri gid hod don cua nhiing chirng tit nhu vay ma khOng c bat ky six xac nhan nao tir phia Technoimport HANOI. Thu bao lanh het hieu Ittc 60 ngay sau chuyen giao hang cu6i ding thu0c hop (long. Tuy vay, nen khOng c vuong mac gI tru6c do, thi thu bao lanh het theri hieu vao ngay.... hoac ngay sau khi giam den het den s6 0 tit) , theo th6i han nao xay den truck. Neu co khien nai thi chting tOi phai nhan duqc mu0n nhat la vao ngay het tiled hieu caa thu bao lanh. Neu khOng nhan khien nai nao thi trdch nhiem phdp ly cua chting toi thuOc thu bao lanh nay se het. Khi het thei hieu caa thu bao lanh nay de nghi chuyen tra thu nay cho chting tOi.

226

Phu lyc 10
DANH MUC CUNG CAP CU' A NGUOI MUA

1. Ngtrai Mua se xay dktng nha xtrang... va lap dat toan bQ trang bi do Ngutri Ban cung cap theo chi dan lap dat cua Ngtrai Bdn. 2. Tat ca do nghe thOng thutmg, thi& bi han va cac pha kien lien quan, bao g6m dan gido, can cau... cho viec lap dat do Ngutri Mua cung cap. Ngtr6i Bdn sechi ti& hod nhang yeu cau cho Ngtrai Mua. 3. Ngtrad Mua se dam bao cung cap nguOn dien 3x380 V-O-E, 225KVA den cac bang dien cua Ngutri Bdn. Ngtrai Mua se cung cap toan b0 dung 6ng mr6c lanh ben trong nha may va dam bao cung cap mr6c chat luong tot tit nguon nu& dia phttang mile dap nhat 1a 30m 3/gia. 4. Ngtrai Mua se h6 tro giilp d6 can thi& cho chuyen gia Ngtroi Bdn trong theri gian ho 6 cOng tru6ng.

227

Phu lyc 11
BANG CHi SO TIEU THU NGUYEN LIEU TREN 1HL BIA

1. Malt (chie't sugt 76%) 2. Gao (chi& sugt 76%) 3. Htip - lOng (7% alfa) 4. Hod chgt 5. Loc dgt (Kieselguhr) 6. Gigy loc 7. Cdc phu gia 8. Nuac 9. Dien nang 10. Gas, dau 11. CO2

12,9kg 5,7kg 150 gram 100 gram 250 gram 0,01m2 13gram 15h1 11 kw/gier 7 lit 1kg

228

Phy lyc 12

CONG VItC GIAM SAT VA DAO TAO NHAN SI; CUA NGIJOI MUA

1. Ngued Ban chili trach nhiem cir 2 ky su giOi nghe, c6 kinh nghiem va stk khoe sang Viet Nam (nhu trong hop MI-1g theo phan chuyen gia) vcli muc dich giam sat viec lap dat, chay thir va nghiem thu nha may ding nhu clao tao nhan su cua Ngued Mua trong thed gian lap dat, chay thir va nghiem thu nha may. 2. Ngued Ban se chi dinh mot truerng doan chuyen gia nhu la chu nhiem cOng trinh, Ong nay se dieu hanh chung va lien N thueing xuyen vdi chu nhiem cOng trinh cita Ngued Mua de ban bac va giai guy& moi viec lien quan den viec lap dat, chay thir va nghiem thu nha may. 3. Cham that 20 ngay, truck kin chuyen gia cua cOng trinh vao Viet Nam, Ngubi Ban se dien cho Ngued Mua chi tiet de xin VISA cho ho de Ngueti Mua thu xep. 4. Ngued Ban se cung cap cho chuyen gia cUa ho quart do bao ho va chi phi d6i vdi ho khi 6m dau, tai nan va chet trong thai gian ho Viet Nam. 5. Ngithi Ban hoan toan chit' trach nhiem d6i a) DO chinh xac, tinh hoan thien va thing clan dm cac thOng tin, huong clan, thOng bao, to van va/hoac cac tai lieu Icy thuat do cac chuyen gia hiking cran va dua ra. b) Nhilng hu hong trut tiep va chi phi do cac chuyen gia cua ho gay ra do tai lieu Ic y thuat khOng chinh xac va khOng dung. 6. Chi phi cho viec giam sat va cOng viec dao tao ghi trong dieu 7 bao a) Ve may bay tir Dan Mach den Viet Nam va ngtroc lai cho chuyen gia Ngueri Ban. b) Chi phi an u6ng cho chuyen gia trong thOi gian ho er Viet Nam. c) Tien luong va cac khoan phu cap khac.

229

7. Twang hop 6m dau hoac tai nan trong tiled gian chuyen gia a Viet Nam, Nguoi Mua se cham soc thu6c men cho nhung chuyen gia bi cam cum hoac bi thucrng tar cac chi phi trong rang, thay kinh mat cling nhu cap thu6c b6. Trong tru'Ong hop khOng con kha nang lam viec qua 14 ngay Nguoi Mua se" lap nit thong boo cho Nguoi Ban ve viec d6 bang telex va tie!) tuc cham s6c thu6c men voi chi phi do Nguoi Ban chiu Ira Nguoi Ban se thay vao do mot chuyen gia c6 dU trinh d0 de cong viec lien quan se khOng bi anh huang do chuyen gia 6m dau. Trong throng hop bi 061 xay ra v6i bat cu mot chuyen gia nao, Nguoi Mua

se thu xep moi thU tuc de Nguoi Ban c6 the cho h6i huang xac chet. Tat ca moi
chi phi cho viec hoi huang tren va viec thay chuyen gia Nguoi Ban chiu chi phi. 8. Nguoi Mua se thu xep giSy phep, VISA... cho chuyen gia de ho vac, Viet Nam, di lai, luu tru va roi Viet Nam. 9. Trong theri gian or Viet Nam, cac chuyen gia phai tuan thu ve quy dinh an toan lao &Ong va tuan theo quy tic, lot le , quy dinh va tap guar' khi ma NguOi Ban ph6 Wen cho ho hoac ho duac bier tit nhang nguon khac. 10. Bat kST mot chuyen gia nao khOng c6 nang ittc hoac to cach dao arc khOng tot, Nguoi Mua se c6 quyen de nghi Nguoi Ban thay the chuyen gia khac co chal lacing pha hop. Moi chi phi cho viec h6i huang va thay the" do Nguoi Ban chiu. 11. Trong giai doan thuc hien viec lap may va chay thir nha may, Nguoi Mua se cung cap phuang tien di lai gifra san bay va cOng twang va glib nai an, o cua chuyen gia den cOng throng cho nhan skr cUa Nguoi Ban. Nguoi Mua se" b6 tri mien phi phong lam viec thich hop tai cong truong moi chuyen gia c6 mot phOng c6 trang bi dieu hoa nhiet do , bail-1g tam va dich vu giat la. 12. Viec dao tao can bq cho Nguoi Mua trong thoi gian chuyen gia cUa Nguoi Ban a tai nha may, Ong to se chi clan va truyen kien thtic cho can 130 Nguoi Mua ye quy trinh san xuat va quy trinh phan tich bia.

230

Part 10

EXAMPLES OF CONTRACT

1. CONTRACT FOR RICE

1.1. The English version of the contract

CONTRACT FOR THE PURCHASE AND SALE OF RICE No. 018/VNF/19...


Between GALLUCK LIMTED Flat A. 3/F Causeway Tower, 16 - 22 Causeway Road Causeway Bay HONGKONG Tel: 8153084, 8955992; Fax: 5764980 Telex: 61355 WSGTC HK (hereinafter called the Buyer) And HANOI FOOD EXPORT IMPORT COMPANY 40 Hai Ba Trung Street, Hanoi VIETNAM Tel: 256771, Telex: 411526 VNF VT Cable Address: VINAFOOD HANOI (hereinafter called the Seller) It has been mutually agreed to the sale and purchase of rice on the terms and conditions as follows: 1. Commodity: Vietnamese White Rice 2. Specification: - Brokens: 35% max 231


- Moisture: 14,5% - Foreign matter: 0,4% - Crop: 20 ... - 20...

3. Quantity: 4. Price:

100,000 MT moie or less 5% at Seller's option 2 USD xxx per metric ton, net for June September 2005 Shipments, (xxx USD/MT)

a. Dunnage, bamboomat for Ship owner's/Buyer's account b. Shore tally to be Seller's account c. Vessel's tally to b at Buyer's/Ship owner's account d. All export duties and taxes levied in the country of destination and outside Vietnam shall be for Buy'er's account

5. Time or shipment: 20 - 25 days after L/C opening date 6. Packing: Rice to be packed in single new jute bags of 50 kgs net each, about 50.6 kgs gross each, hand-sewn at mouth with jute twine thread suitable for rough handling and sea transportation. The Seller will supply 0.2% of new jute bags, free of charge, out of quantity of bags shipped 7. Insurance: To be arranged by the Buyer 8. Inspection and Fumigation:
a. The certificate of quality, weight and packing issued by Vinacontrol at loading port to be final and for Seller's account b. Fumigation to be effected on board the vessel after completion of loading with expenses to be at Seller's account; but expenses for crew on shore during the fumigation period including transportation, accommodation and meals at hotel for Ship owner's account c. Time for fumigation not to count as laytime

9. Loading terms:
a. Buyer shall advise vessel's ETA and its particulars 15 days and Captain shall inform vessel's ETA, quantity to be loaded and other necessary information 72/48/24 hours before the vessel's arrival at loading port b. Laytime to commence at 1.PM if N.O.R. given before noon and at O. AM next working day if N.O.R given in the afternoon during office 232

hours; in case of vessel waiting for berth due to congestion, time commences to count 72 hours after N.O.R. submitted c. Loading rate: 800 MT per weather working day of 24 consecutive hours, Sundays, holidays excepted even if used, based on the use of at least four to five normal working hatches/holds and all cranes/derricks and winches available in good order, if less then prorata d. Seller shall arrange one safe berth of one safe port for the vessel of 10,000 MT - 20,000 MT capacity to load the cargo e. Time is between 17.00 PM on Saturday and the day preceding a holiday until 8 AM next working day not to count as lay time even if used f. Before submitting N.O.R., the vessel must be in free practique. Immediately after vessel at berth, captain shall request Vinacontrol to inspect the hatches/holds and issue a certificate certifying that the hatches/holds are clean, dry, free from harmful factions and suitable for focd loading with such expenses to be at ship owner's account and time not to count as lay time g. Demurrage/Dispatch if any, to be as per C/P rate; but maximum of 4,000/2,000 USD per day or prorata and to be settled directly between Seller and Buyer within 90 days after B/L date h. For the purpose of obtaining Shipping Documents such as: - Commercial Invoices - Certificate of quality, weight and packing - Certificate of origin The responsible party shall Cable/Telex/Fax advising shipment particulars within 24 hours after completion of loading. In order for the Buyer to obtain insurance, a Bill of Lading shall be issued immediately after completion of loading and before fumigation and provided immediately to the Buyer a. In case, cargo is ready for shipment as scheduled in this contract, but Buyer fails to nominate the vessel to load, then all risk, damage, and associated expenses for cargo to be borne by the Buyer based on the Seller's actual claim. In the event that no cargo is available to be loaded on nominated vessel at loading port, then dead freight to be paid by Seller bases on Buyer's actual claim and the Buyer will submit the following documents to Vietcombank for receiving P.B: 233

(time counted: 20 - 25 days from L/C opening date): - N.O.R. with Seller's signature - Report signed by the Captain and the Seller confirming that the vessel has already arrived at the port to receive the cargo but the Seller has no cargo to load - Vietcombank's confirmation 10. Payment: a. After signing the contract, the Buyer or the Buyer's nominee (SHYE LIAN (HK) MANUFACTURING CO. LTD or other nominee) shall telex asking the Seller to open P.B of 1% of total L/C amount at Vietcombank Hanoi within two days thereof. The Seller shall open P.B. and inform the Buyer; then, four days after receiving Vietcombank's confirmation, the Buyer shall open a telegraphic, irrevocable and confirmed L/C which is in conformity with this contract by an international first class bank at sight with T.T.R. acceptable for 40,000 MT in favour of Vinafood Hanoi through the Bank of Foreign Trade of Vietnam For 60,000 MT the Buyer or Buyer's nominee shall open a telegraphic, irrevocable and transferable at sight L/C which is in conformity with this contract with T.T.R. acceptable. In this case, the Seller requests the confirmation of L/C, the L/C shall be confirmed for Seller's account In the event that the Buyer fails to open L/C four days after receiving confirmation from Vietcombank then the Seller shall collect P.B from the Vietcombank and then the contract is automatically canceled The Seller will collect the P.B. against presentation of shipping documents at Vietcombank b. Presentation of the following documents to the Bank of Foreign Trade of Vietnam, payable within 3 - 5 banking days after receipt of the telex from Vietcombank certifying that documents have been checked in conformity with the L/C terms: - Full set of "Clean on board" B/L - in three (3) originals marked "Freight to collect" - Commercial invoice in three (3) folds - Certificates of quality, weight and packing issued by Vinacontrol to be final at loading port in six (6) folds

234

- Certificate of origin issued by Vietnam Chamber of Commerce in six (6) folds - Certificate of fumigation issued by the Competent authority Vietnam in six (6) folds - Phytosanitary certificate issued by the Competent authority of Vietnam in six (6) folds - Cable/ Telex/Fax advising shipment Particulars within 24 hours after completion of loading

11. Force Majeure:


The Force Majeure (exemption) clause of the International Chamber of Commerce (ICC publication No. 421) is hereby incorporated in this contract

12. Arbitration:
Any discrepancies and/or disputes arising out or in connection with this contract not settled amicably shall be referred to Arbitration in accordance with the Rules and Practices of the International Chamber of Commerce in Paris or such other places agreed by both sides

13. Other terms:


Any amendment of the terms and conditions of this contract must be agreed by both sides in writing This contract is made in 06 originals in English Language, three for each party This contract is subject to the Buyer's final confirmation by telex (June 18 th, 20... latest) Made in Hanoi, on 9 th June, 20...

FOR THE SELLER


Director (Signed/sealed) Nguyen Duc

FOR THE BUYER


Managing Director (Signed)
Eddy S.Y.Chan

235

1.2. The Vietnamese version of the contract

HOP HONG MUA VA BAN GAO


S6 018/VNF-GL20 Gala: GALLUCK LIMITED Phong A. 3/F, Causeway Tower, 16-22 Dung Causeway Vinh Causeway HONGKONG Tel: 8153084, 8955992; Fax: 5764980 Telex: 61355 WSGTC HK (Debi day dugc goi la Ngugi mua) Va: C6ng ty Xuat Nhap khau Luang thuc Ha Nei 40, dugng Hai Ba Trung - Ha Nei - Viet Nam Tel: 2.56771, Telex: 411526 - VNF VT Dia chi dien tin: VINAFOOD HANOI (Debi day dugc goi la Ngugi ban) Hai ben cang dong Y ye hop (long mua va ban gao voi cac lieu kien nhu sau:
1. Hang 'loci: Gao trdng Viet Nam 2. Quy cacti ph 6117 chat:

Tam: 35% la tai da Thus' phan: T6i da 14,5% Tap chat: T6i da 0,4% Gao vu mua 20... 20...
3. SO' lacing: 4. Gici

100.000 MT tren dui 5% theo su lua chon caa ngubi ban xxx USD met MT (tinh) giao hang thang 6 9 - 19 ...

a. Lot hang, cot tinh vao khoan cua cha tau/ngued mua b. Chi phi kidm kien tren cau cang dugc tinh vao tai khoan caa ngtr6i ban (Do ngugi ban chiu) c. Chi phi kidm kien tren tau dugc tinh vao tai khoan caa ngtr6i mua/cha tau d. Tat ca cac khoan tht6 xuat khan b nu& xuat xd do ngu6i Ban chiu

236

e. Tdt ca cac khoan thug nhdp, thue khdc & nuesc den v.v... Nth & cac ntrac ben ngoai Viet Nam se duroc tfah vao tai khoan cua nguii mua 5. Theri han giao hang: 20 - 25 ngay sau ngay m& L/C 6. Bao bi: Gao phai dugc dung trong bao day din mai trong lucing tinh mei bao 50 kg, khoang 50,6 kg ca bi, khau tay & mieng bao bang chi day xe doi thich hap cho viec b6c vac va van tai dyeing bien; nguii ban se cung cap 0,2% bao day mai mien phi ngoai tong s6 bao cluot xep len tau 7. Bdo hi : Nguii mua se phai chiu 8. Ki e'm tra vet xOng kit& hang hod: a. Gidy chang nhdn.chat Wong, trong lugng va bao bi do Vinacontrol cap cang xep hang c6 tinh chung thdm va chi phi do nguii Ban chiu b. Viec x6ng khoi hang hod phai duqc thuc hien tren boong tau sau khi hoan thanh viec b6c hang vii cac chi phi do nguii ban chiu. Nhung cac khoan chi tieu cho doi thus' thit & tren bi trong tiled gian xOng khoi gem ca cac chi phi ye an u6ng, cite & va di lai & khach san chit tau phai chiu c. Thii gian x6ng khoi khOng tinh la thi gian xep hang e 9. Ccic di' u khodn ve xep hang: a. Nguii mua se thOng bao ETA elm con tau va cac not dung chi tiet dm no 15 ngay (sau khi tau nh6 neo) \Ta thuyen truing se thOng bao ETA cita tau, kh6i luong se ducrc xep len tau va ratting thong tin can thiet khac 72/48/24 gii nu& khi tau den cang xep hang b. Thii gian xep hang bat dau tinh tir lh trua neu NOR duqc trao truck bu6i trua va tit 8h sang cita ngay lam viec tiep theo neu nhu NOR &rot trao vao budi chieu trong gib lam viec, trong truing hey tau dcri de tha neo vi cang tdc nghen thi thbi gian xep hang ductc tinh sau 72 gii ke tir khi trao NOR c. T6c dO xep hang: 800 MT m6i ngay lam viec lien tuc 24h thbi tier cho phep lam viec, chit nhdt, ngay nghi duqc trir ra thdm chi nett c6 sir dung, tren ca sei co it nhdt 4 den 5 ham tau/ham hang lam viec binh thu'ong va tat ca can cdu/can true NIA cuOn day tin san sang trong trang thdi tot, neu it holt thi tinh theo ti le d. Nguii ban se thu xep mot dia diem be neo an toan tai mot cang an toan cho con tau c6 sac china tir 10.000 MT - 20.000 MT de boc hang e. Khoang thbi gian tir 17h chieu thtl bay va ngay truck mot ngay nghi cho den 8h sang elm ngay lam vied tiep theo khOng tinh la thin gian xep hang thdm chi c6 sir dung 237

f. Tilt& khi trao NOR, con tau 'phai c6 giay phep qua cang, ngay sau khi tau cap (b6 neo), thuyen throng se yeu cau Vinacontrol kiem tra cac ham tau/ham hang va cap gig)/ chi:mg nhan cac Mm tau/ham hang sach kh6, kh6ng c6 cac tac nhan gay hai va thich hop ch6 luong thuc va nhiing chi phi nhu vay se &tic tinh vao tai khoan cua chif tau va thari gian khOng tinh la thai gian xep hang

g. Phat xep hang cham/thfrang xep hang nhanh neu c6, se theo nhu mac quy dinh trong hqp (long thud tau chuyen; nhung t6i da la 4.000/2.000 USD mot ngay hoac tinh theo ty le va phai clitqc giai guy& (thanh toan) truc tiep giaa ngit6i mua va ngued ban trong yang 90 ngay ke tir ngay ky B/L h. De c6 ditqc nhung chfing tir giao hang nhu: Cat hod don thirong mai Giay chdng nhan chat luong, trong luqng va bao bi Giay chtIng nhan xuat xd

Ben c6 trach nhiem phai thong bao cac chi ti6t ve giao hang bang dien tin/telex/Fax trong yang 24h sau khi hoan thanh giao hang Van don se duqc cap ngay sau khi hoan thanh viec giao hang va tilt& khi x6ng khoi va ditqc giao ngay cho ngutri mua de mua bao him

i. Trong truerng hop hang hod da son sang de xep len tau nhu da duot du dinh trong hop MI-1g nay nhung ngittri mua khong chi dinh tau de b6c hang thi tat ca rui ro, thiet hai, nhung chi phi c6 lien quan den hang hod do ngubi mua chiu tren co s6 dOi boi thiterng thuc to cua ngutri ban; nguqc lai, neu khong co hang de b6c len con tau da duqc chi dinh cang b6c hang, thi cuqc kh6ng se do nguoi ban tra tren co s6 ban doi boi thterng dux to cila ngfroi mua va ngutti mua se xuat trInh nhiing cluing tir sau cho Vietcombank de nhan P.B (theri gian duot tinh tir 20-25 ngay ke tit ngay mo L/C)
NOR c6 chit ky cifa ngued ban Bien ban chtqc ky giCra thuyen truerng va ngir6i ban xac nhan rang con tau ditqc chi dinh da den cang xep hang de nhan s6 hang trong hop dong nhung nguiti ban khong c6 hang bCic len tau.

Xac nhan cua Vietcombank


10. Thanh Ivan:

a. Sau khi ky ket hop dong nay, ngutri mua hoac ngutri duqc ngiroi mua chi dinh (SHYE LIAN (HK) MANUFACTURING CO. LTD hoac ngueri
238

dugc chi dinh khac) se telex de nghi ngtrgi ban ma P.B vgi 1% tong gia tri LC tai Vietcombank HA Noi trong yang 2 ngay ngtrai ban se ma P.B va th6ng bao cho ngtrai mua, sau do, 4 ngay sau khi than dugc xac nhan cUa Vietcombank, ngtrai mua se lap tilt mei mot LC dugc xac nhan, khOng hu57 ngang bang dien tin phi' hop vgi hgp dung nay tai ngan hang qu6c te' hang nhat thanh toan ngay bang T.T.R c the chap nhan dugc dOi vgi 40.000 MT cho Vinafood Hanoi hirC'ing qua ngan hang Ngoai thong Viet Nam Dgi vgi 60.000 MT nguai ban cling chap nhan rang ngtrai mua hoac ngtrai dugc ngtrai mua chi dinh se ma mot thu tin dung thanh toan ngay c6 the chuyen nhuong dugc kh6ng ht6'7 ngang bang dien bao phi' hop vgi hop dung nay c6 the chap nhan vgi chuyen den bang dien. Trong twang hgp ngtrai ban yeu cau xac nhan L/C, L/C se dugc xac nhan cho nguai ban hung Trong twang hop bgn ngay ke tir ngay ngugi mua nhan dugc xac nhan cua Vietcombank, nhung L/C kh6ng dugc ma thi ngtrai ban se thu hoi P.B tir Vietcombank va sau do hqp dung nay to dOng dugc xod be. Ngued ban se thu hoi P.B tren co sa xuat trinh cac chirng tir van tai cho Vietcombank b. Viec xuat trinh nhling chirng to sau day cho Ngan hang Ngoai thuong Viet Nam, dugc thanh toan trong vOng 3-5 ngay lAm viec cua ngan hang sau khi nhan dugc bCrc telex da dugc kiem tra tir Vietcombank chimg to rang nhiing chirng tir nay da duoc kiem tra va hqp vgi cac dieu khoan cua L/C Mot 'DO day dit van don sach da x'ep hang len tau ba ban g6c c6 ghi "Ctrgc phi tra sau" Hod don thuong mai lam thanh ba ban Giay chirng nhan chat luring, trong luring va bao bi do Vinacontrol cap o cang b6c hang se c6 gia tri phaplSrcu6i ding cluqc lam thAnh 6 ban Giay chi:mg nhan xuat xti do Ph6ng Thuong mai Viet Nam cap dugc lam thanh 6 ban Gig)/ chirng nhan hang hod dugc x6ng kh6i do nguai (co quan Viet Nam) c6 tham quyen cap, dugc lam thanh 6 ban Giay chirng nhan ye sinh do co quan Viet Nam c6 tham quyen cap duqc lam thanh 6 ban Nhling chi ti6t th6ng bao gin hang bang dien tin/Telex/Fax trong \Tong 24h sau khi hohn thanh viec b6c hang
239

11. Bat khd khang Dieu khoan bit kha khang cua Phong Thuong mai qu6c t6 (ICC an phdm s6 421) theo hop thing nay &roc kk hop thanh 1 be phdn trong hop dOng nay 12. Trong tai:
Bat cu sty khac biet va/hoac tranh chdp nao phat sinh ttr va trong quan he vii hop Ming nay ma khOng dugc giai quy& bang thuong Wong se phai dui ra xix theo ludt va tap quail trong tai caa Phong Thuang mai qu6c t6 & Paris hoac nhiing nai khac do hai ben thoa thuan

13. Cac dieu khodn khac:


Bat cu su sira dei dieu khoan va diet' kien nao dm hap dong nay phai duoc hai

ben thoa thudn bang van ban Hop dong nay dugc lam thanh 6 ban g6c tieng Anh, 3 ban cho m6i ben Hop dong nay phu thuOc vao xac nhan cu6i ding cira nguai mua bang telex (18 thing 6 nam 20 ... la muOn nhdt) Diroc lam & Ha NO, ngay 9 thing 6 nam 20 ...

Ngubi ban
Giam d6c (dd 4/dong

Nguiri mua
Giam doc dieu hanh (dc114)

Nguyen Dirc

Eddy S.Y. Chan

240

2. CONTRACT FOR LUBRICANTS

2.1. The English version of the contract

CONTRACT No 01292
Singapore December 29th, 20...

This contract is made between Vietnam National Petroleum Export Import Corporation (PETROLIMEX) 1, Kham Thien, Hanoi (Socialist Republic of Vietnam) Cable address: "Petrolimex Hanoi" (hereinafter reference to as BUYER) and AGIP PETROLI S. p. A. - Singapore Branch (reference to as SELLER) whereby it is agreed as follows:

1. Object of the Contract


SELLER undertakes to deliver to BUYER in Vietnam on CFR basis the following lubricants: Lubricants GR MU3 Quantity 858 DRUMS x 180 Kg (154.44 MT) 858 DRUMS x 180 Kg (154.44 MT) CFR HCM 850 USD/MT CFR HP

Item 01

02

CR MU3

870USD/MT

The above prices are expressed in US dollars per metric ton net CFR port of Vietnam, deliveries as per Art. 6 below, and remain fixed during the term of this contract and provided that an Irrevocable L/C in respect thereof has been notified to Seller by Singapore Indosuez Bank prior to 31/10/20...

2. Specification of Lubricants
The specification of lubricants in drums supplied under this Contract shall conform to the specifications set out in Appendix 1 attached to hereto, which is an integral part of this Contract. Origin of products will be Italy, Holland or Singapore at SELLER'S option

241

3. Packaging
Packaged products will be delivered in AGIP standard new steel drums, of about 1.2/1.0 mm thickness. The drums will be filled at 180 kg net weight

4. Payment
4.1. SELLER will be paid by Irrevocable L/C opened by Vietcombank Hanoi and advised to Seller through Indosuez Bank in Singapore payable at sight against first presentation of full set of shipping documents 4.2. SELLER shall effect first shipment within 30 days from the date SELLER receives notification of irrevocable L/C 4.3. All costs of L/C in Singapore shall be for SELLER'S account 4.4. All L/C amendment's cost (if any) caused by the failure of the Buyer to follow the terms and conditions of payment will be for BUYER'S account 4.5. The under mentioned documents will be forwarded to BUYER's Bank immediately after loading date a. Signed commercial invoice in 3 originals b. Clean "Shipped on Board" Ocean Bill of Lading in complete set of at least 3 original 3 and non- negotiable copies signed made out to order of "Vietcombank" Hanoi c. Quality/Quantity certificate issued by the Chamber of Commerce in triplicate d. Packing List in triplicate e. Confirmation of cable advise for shipment in triplicate f Receipt of shipmaster acknowledging due receipt of all documents in triplicate non - negotiable copies of each document, for handing same over to PETROLIMEX Haiphong or PETROLIMEX Hochiminh City

5. Penalties
In case of delay in payment (if any), BUYER shall remit to SELLER interest calculated from the date of presentation of documents to the bank in Singapore to the date of effective receipt of due amount. The interest will be calculated at LIBOR RATE (6 months) plus 1.5 per cent

242

6. Deliveries
Products will be delivered in partial shipments to be agreed upon. In case of transshipment SELLER shall give BUYER all necessary detail and information.

7.Insurance
Insurance shall be effected by BUYER

8. Delivery Terms CFR Vietnamese ports as per Art. 1. Goods to be delivered in partial shipments accordance with Art. 6 9. Claims
In case of non - conformity of the quality of the products actually delivered by SELLER with the Contract specifications, any claim concerning the quality of the goods must be presented to SELLER within three months from the date of delivery. No claims shall be accepted by SELLER party after expiry of the above period.

10. Contingencies Should any circumstances arise which prevent the complete or partial fulfillment by any of the parties of their respective obligations under this contract, namely: fire; ice conditions or any other acts of the elements, war, military operations of any character, blockade, prohibition of export or import or any other circumstances beyond the control of the parties, then the time stipulated for the fulfillment of the obligations shall be extended for a period equal to that during which such circumstances last
If the such circumstances last for more than 20 days, any delivery or deliveries which are to be performed under this contract within that period may be cancelled on the declaration of either party, and if the above circumstances last for more than 40 days, neither party shall have the right to make a demand upon the other Party for compensation for any possible damage A party unable to meet its obligations under this Contract shall immediately advise the other party the time of commencement and the termination of the circumstances preventing the fulfillment of its obligations Certificates issued by the respective Chamber of Commerce of SELLER's or BUYER's country shall be sufficient proof of such circumstances and their duration

243

11. Arbitration All disputes and differences which may arise out of the present contract or in connection with it shall be settled, if possible, in an amicable way In the event that it is not possible to settle them in an amicable way, the parties shall refer the matter to Arbitration in the International Chamber of Commerce in Paris 12. Other Conditions 12.1 Neither Party is entitled to transfer its right and obligations under the present Contract to a third party without the other Party's previous written consent 12.2 After the signing of the present Contract, all previous negotiations and correspondence between the Parties in connection with it shall be considered null and void 12.3 All amendments and additions to the present Contract are valid only if they are made out in writing and signed by both Parties 12.4 All taxes, customs and other duties levied in Vietnam on the contracted Products shall be for BUYER's account. SELLER: AGIP PETROLI S.p.A (Signed) Patrick FOK Lubricants Manager

BUYER: PETROLIMEX (Signed) Nguyen Manh Vice General Director

APPENDIX I Product: Agip Gr Mu3 3 230 dmm 195C.

NLGI consistency:

Worked penetration:

ASTM dropping point: 244

2.2. The Vietnamese version of the contract

HOP HONG So 01292


Singapore ngay 29 thong 12 nom 20...

Hop (long nay duqc lap gifta T6ng Cong ty xang dau (PERTROLIMEX) s6 1 Kham Thien Ha NOi, COng hoa xa hOi chit nghia Viet Nam, dia chi lien tin "PERTROLIMEX HANOI" (sau day goi la ngtrai mua) va AGIP PETROLI S. P. A - Chi nhanh Singapore (sau day goi la nguai ban), bang hop thing nay hai ben da clang y nhu sau:
,

I. DOI Wong clia hop (long Ngu6i ban cam kel giao cho nguai mua cac loci dau ma bOi trait sau day theo dieu kien CFR

STT 01 02

Ma bOi trait GR MU3 CR MU3

S6 luong 858 phuy x 180 Kg (154.44 MT) 858 phuy x 180 Kg (154.44 MT)

Gia CFR HCM 850 USD/MT

Gia CFR HP

870USD/MT

Gia o tren duqc tinh bang USD in& MT theo dieu kien CFR cang Viet Nam, giao hang nhu dieu 6 duai day, va van khOng thay d6i cho den khi chuyen hang cu6i ding &roc thuc hien vii dieu kien mot thu tin dung (L/C) khong huy ngang da &roc thong bao cho ngtrai ban qua ngan hang Indosuez tai Singapore air& ngay, 31/01/19... 2. Chi tieu chat luong ctia ma bOi tam Chi tieu chat Wong cita ma bOi tron dong trong phuy giao theo hop dong nay se phit hop v6i cac chi tieu chat luong quy dinh trong phu luc 1 kern theo day, phtt luc nay la mot 1)0 phan can thanh dm hop dong nay. Xuat xt'r caa son phdm se la Italia, Ha Lan hoac Singapore do nguai ban chon 3. Bao bi San phdm c bao bi se duqc giao trong phuy theft mai tieu chudn cita AGIP, c6 245

dg day dm thep khoang 1,2/1,0 mm. Cac phuy nay se dugc barn 180kg mg, trong luting tinh 4. Thanh toan 4.1. Ngugi ban se dugc thanh Loan bang thu tin dung khOng hu5, ngang do Vietcombank mo thgng qua ngan hang Indosuez tai Singapore, do Vietcombank mg tra tien ngay khi xudt trinh 1 b0 day dit cac cluing tit van tai 4.2. Ngugi ban se giao chuyen hang dau tien trong vong 30 ngay kd tir ngay ngueri mua nhan dugc ihgng bao ve L/C khOng hu5/ ngang 4.3. Tdt ca cac chi phi ve L/C & Singapore do ngugi ban chiu 4.4. 'at ca cac chi phi ve sira dgi L/C (nen co) do ngugi mua chit' 4.5. Cac cluing tir sau day se dugc chuydn tai ngan hang cita ngtrgi mua ngay sau ngay b6c hang a. Ba ban g6c hoa don thong mai b. Mgt b0 van don dugng bien sach da b6c hang it nhdt c6 3 ban gOc, 3 ban copi khgng thanh toan dugc da 14 lap theo lenh cua Vietcombank Hanoi c. Ba ban gidy chting nhan s6 luting/chat luting do Phong Thuong mai cap d. Ba ban phial &rig g6i e. Ba ban xac nhan thong bao giao hang bang dien tin f. Bien lai cita thuyen trugng xac nhan du ba ban copi khOng thanh toan dugc cUa mOi cluing tir, cua tat ca cac chung tir, de giao cluing cho PETROLIMEX HAIPHONG hoac PETROLIMEX HOCHIMINH. 5. Plug Trong trugng hgp chdm tra tier' (nen co), ngugi mua se chuydn cho ngtrgi ban s6 tien lai tinh tir ngay xudt trinh cluing tir den ngan hang tai Singapore den ngay nhan dugc thut su toan b0 so tien; tien lai se dugc tinh bang lai sudt Libor (6 thang) cgng 1,5% 6. Giao hang Cac san phdm se dugc giao tirng phan va se dugc hai ben (Ring y sau Trong trugng hgp chuydn tai ngugi ban se thOng bao cho ngued mua tat ca cac chi tier va thOng tin can thi6t

246

7.Bdo hi e'm Viec bao him cho hang hoa do ngutd mua thuc hien 8. Dien kien giao hang CFR tang Viet Nam nhu di8u 1; Hang hoa se duoc giao tang phan theo quy dinh & Dieu 6 9. Khien nai Trong truing hop chat luong san phdm &roc thuc t8 giao bgi ngugi ban khOng pha hop vii cac chi tieu chat Wong dm hop ail-1g, bat kY khieu nai nao ve chat Wong cila hang hoa phai dugc xuat trinh cho ngugi ban trong vOng 3 thong ke to ngay giao hang Cac don khieli nai se khOng dugc chap nhan b&i ben ban sau ngay het han cila khoang tiled gian not tren 10. Bdt khd kheing Neu bat kY tInh hugng nao nay sinh ma can tr6 viec thkrc hien mot phan hoac toan bO nghia vu caa cac ben theo hop &Ong nay, cac tInh hugng nay nhu: Choy, tInh trang dong bang hoac cac hanh Ong khac caa cac yeti t6 thien nhien, Chien tranh, hoat ding quan su dugi bat ky clang nao, bao vay phong too, cam nhap khdu hay bgt kY mot tinh trang nao d6 nom ngoai su diet' khidn cua cac ben, thi th6i gian quy dinh cho viec that hien nghia vu do se dugc gia han mot khoang th6i gian bang vdi khoang th6i gian ma tinh trang do keo dai Neu tInh trang tren keo dai tren 20 ngay hoac nhang dot giao hang ma phai dugc that hien theo hop dong nay trong khoang th6i gian d6 c6 the dugc huY 1)6 khi co tuyen b6 caa bat kY ben nao, va neu tinh trang tren keo dai tren 40 ngay, moi ben c6 quyen khong that hien tidp toanbO cac trach nhiem cila minh theo hop (long nay va trong throng hop nhu vay khOng ben nao co quyen yeti du ben kia den ba v8 cac thiet hai co the xay ra Ben khOng thd thkrc hien &roc cac nghia vu cua minh theo hop clang nay phai ngay lap tIrc thOng bao cho ben kia ve diem bat dau va ket thilc cua tinh trang can tr& va viec thkrc hien cac nghia vu cila minh Gigy Chung nhan do Ph6ng Thuong mai Wong (mg 6 nugc ngugi mua hay ngued ban cap se la bang thong day du cho tInh trang tren va th6i gian keo dai cua tinh trang do 11. Trong tai Tat ca cac tranh chap va mau thuan ma c(, tie nay sinh tir hop dong nay hay lien quan den hop (ong nay se duqc giai quyk, fle"u c6 the, bang con throng thuong Wong hoa giai 247

Trong twang hop khOng giai quy6t dtrgc bang con throng thucmg luting hoa giai, cac ben se dua van de ra Hoi (long Trong tai cila PhOng Thugng mai qu6c to tai Paris

12. Gide diets kien khac


12.1. Khong ben nao co quyen chuyen nhugng quyen lgi va nghia vu cua minh theo hop (long nay cho ben thd ba ma khOng c6 sir dong y truck dm ben kia bang van ban 12.2. Sau khi ky ket hop (long nay tat ca cac giao dich va thu tir tru6c d6 giita cac ben lien quan den hop (long nay se dtroc xem nhu v6 hieu 12.3. Tat ca thay d6i b6 sung cho hop (long nay chi co gia tri hieu ltrc chi khi no dugc lam bang van ban va dugc ca hai ben ky 12.4. Tat ca cac khoan thue, thu hai quan, va cac chi phi khac danh vao hang hod i7 Viet Nam se do ben mua chiu. Ngubi ban AGIP PETROLI S.p.A Trugng phong dau nhgn Nguoi mua PETROLIMEX Pho T6ng giam d6c

(Dc7 14)
PATRIKC FOK

(Dc74)
NGUYEN MANH

PHU LUC 1 San ph d' m : DO quanh NLGI: D6 lun kim: Nhiet d0 nhO giot ASTM: 248

Mo AGIP MU3
3 230dmm 195C

3. ABCCORPORATION'S CONTRACT

3.1. The English version of the contract

SALE CONTRACT ABC CORPORATION, as SELLER, confirms having sold to BUYER the following goods by contract made on the date below and on the terms and conditions SET FORTH HEREUNDER AND ON THE REVERSE SIDE HEREOF.
BUYER DATE BUYER'S REFERENCE NO. GOODS: QUANTITY UNIT PRICE TOTAL AMOUNT CONTRACT NO

- Time of Shipment

Transshipments permitted/not permitted Partial shipments permitted/not permitted MARKING:

- Port of Loading - Port of Destination PACKING:

PAYMENT: The letter of credit shall bear this Contract's number as reference INSURANCE: To be covered by Buyer/Seller INSPECTION: OTHER TERMS & CONDITIONS: ACCEPTED ON BY: (BUYER) Please sign and return one copy. SEE TERMS AND CONDITIONS ON REVERSE SIDE (SELLER) 20...

249

GENERAL TERMS AND CONDITIONS 1. Shipment or delivery The obligations of Seller to ship or deliver the goods specified on the face of this Contract ("Goods") by the time or within the period specified on the face of this Contract shall be subject to the avaibility of the vessel or the vessel's space If, under the terms of this Contract, Buyer is to secure or arrange for the vessel or vessel's space, Buyer shall secure or arrange for the necessary vessel or vessel's space on berth terms basis and give Seller shipping instructions within a reasonable time prior to shipment, including but not limited to the name and detailed schedule of the vessel. If Buyer fails to give such instructions within a reasonable time prior to shipment, Seller may, at its sole discretion and at Buyer's risk and account, arrange for the vessel or the vessel's space and make shipment of the Goods, without prejudice and in addition to any other rights and remedies Seller may have under this Contract or at law or in equity or otherwise In case of shipment or delivery installments, any delay or failure in shipment of one installment shall not be deemed a breach of this Contract giving rise to a right of Buyer to cancel this Contract or refuse to accept performance with respect to other installments 2. Payment If payment for the Goods shall be made by a letter of credit, Buyer shall establish in favor of Seller an irrevocable letter of credit through a prime bank of good international repute immediately after the conclusion of this Contract in a form and upon terms satisfactory to Seller. If Buyer fails to make any due payment, to establish a letter of credit or otherwise to perform its obligations hereunder, Seller may demand that Buyer provides, within a reasonable time, adequate assurance satisfactory to Seller of the due performance of this Contract and may with old shipment or delivery of any all of the undelivered Goods until such assurance is given. Buyer shall pay the price specified on the face of this Contract without set-off counterclaim, recoupment or other similar rights which Buyer may have against Seller, whose rights shall be exercised in separate proceedings between Buyer and Seller. Any new, additional or increased freight rates, surcharges (bunker, currency, congestion or other surcharges), taxes, customs duties, export or import 250

surcharges or other governmental charges, or insurance premiums, which may be incurred by Seller with respect to the Goods after the conclusion of this Contract shall be for the account of Buyer and shall be reimbursed to Seller by Buyer on demand. If Buyer fails to pay for the Goods in accordance with this Contract, Buyer shall pay to Seller as liquidated damages and not as a penalty overdue interest at the rate of the lower of eighteen percent (18%) per annum or the maximum interest rate permitted by the laws of Buyer's country, calculated from the date for such payment until the actual date of payment calculated on the 360 day-ayear basis for the actual number of days elapsed. 3. Force Majeure If the performance by Seller of its obligations hereunder is directly or indirectly affected or prevented by force majeure, including but not limited to Acts of God, flood, typhoon, earthquake, tidal wave, landslide, fire, plague, epidemic, quarantine restriction, perils of the sea, war declared or not or threat of the same civil commotion, blockade, arrest or restraint of government, rulers or other labor dispute, explosion, accident or breakdown in whole or in part of machinery, plant, transportation or loading facility, governmental request, guidance, order or regulation, unavailability of transportation or loading facility, bankruptcy or insolvency of the manufacturer or supplier of the Goods, or any other causes or circumstances whatsoever beyond the reasonable control of Seller or manufacturer or supplier of the Goods, then Seller shall not be liable for loss or damage, or failure of or delay in performing its obligations under this Contract and may, at its option, extend the time of shipment or delivery of the Goods or terminate unconditionally and without liability the unfulfilled portion of this Contract to the extent so affected or prevented. 4. Default In case of (i) Buyer's failure to perform any provision of this Contract, (ii) Buyer's inability to pay its debts generally as they become due, (iii) Buyer's bankruptcy or insolvency or (iv) appointment of a trustee, receiver or liquidator of Buyer of any material part of Buyer's assets or properties ("Events of Default"), Seller may, at its sole discretion, (i) terminate this Contract or any part thereof, (ii) declare all obligations of Buyer immediately due and payable; (iii) resell the Goods, (iv) hold the Goods for Buyer's account and risk; (v) pospone the shipment of Goods, or (vi) stop the Goods in transit, and Buyer shall reimburse Seller for all losses damages arising directly or indirectly from such Events of Default. 251

The rights and remedies of Seller hereunder are cumulative and in addition to Seller's rights, powers and remedies existing at law or in equity or otherwise.
5. Intellectual property rights

Nothing herein contained shall be construed as transferring any patent, trademark, utility model, design, copyright, mask word or any other intellectual property rights in the Goods, as such rights being expressly reserved to the true and lawful owners thereof Seller shall be neither responsible nor liable for any infringement or unauthorized use with regard to any patent, trademark, utility model, design, copyright, mask work or any other intellectual property rights.
6. Warranty, claim

Unless expressly stipulated on the face of this contract, seller makes no warranty or condition, expressly or impliedly, as to the fitness or suitability of the goods for any particular purpose or use or the merchantability thereof If any warranty exists, Seller's liability shall be limited to replacement or repair of the defective Goods Any claim by Buyer of whatever nature arising under or in relation to this Contract shall be made by registered airmail within thirty (30) days after the arrival of the Goods at the port of destination, or solely in respect to a claim alleging the existence of a latent defect in the Goods, within six (6) months after the arrival of the Goods at the port of destination, and any such claim shall contain full particulars with evidence certified by an authorized surveyor.
7. Limitation

Seller shall not be responsible, whether in contract or warranty, or on any other basis, to Buyer for any special, incidental, consequential, indirect or exemplary damages, and in no event shall Seller's total liability on any or all claims from Buyer exceed the price of the Goods.
8. General

1. All disputes, controversies or differences arising out of or in relation to this Contract or the breach thereof which cannot be settled by mutual accord without undue delay shall be settled by arbitration in Tokyo, Japan, in accordance with the rules of procedure of the Japan Commercial Arbitration Association. The award of arbitration shall be final and binding upon both parties, and judgment on such award may 252

be entered in any court or tribunal having jurisdiction thereof. This Contract shall be, in all respects, governed by and construed in accordance with the laws of Japan. The trade terms herein used, such as FOB, CFR and CIF, shall be interpreted in accordance with "INCOTERMS 2000". 2. The failure of Seller at any time to require full performance by Buyer of the terms hereof shall not affect the right of Seller to enforce the same. The waiver by Seller of any breach of any provision of this Contract shall not be construed as a waiver of any succeeding breach of such provision or waiver of the provision itself 3. This Contract constitutes the entire agreement between the parties hereto and supersedes all prior or contemporaneous communications, agreements or undertakings with regard to the subject matter hereof. This Contract may not be modified or terminated except by a written agreement of Seller and Buyer. 4. Buyer shall not transfer or assign this Contract or any part thereof without Seller's prior written consent.

253

3.2. The Vietnamese vession of the contract HOP BONG BAN HANG Cong ty c6 phan ABC, Ngtred ban, xac nhan da ban cho Ngtroi mua shang hoa sau day theo hop dong dixoc lap vao ngdy viet 6. dual va theo cac dieu kien NEU DUOI DAY VA TRENT MAT SAU COA HOP DONG NAY (Trang 2 - ND)
MUA: NGAY HOP DONG SO

Se tham chieu dm Ngtrei mua HANG HOA: SO LONG: DON GIA: TONG GIA:

GIAO HANG:

Chuyen tai: &roc phep/khong duvc phep Giao tirng phan: duvc phep/khong &roc phep - Thai gian giao hang - Cang giao hang - Cang den KI MA HIEU BAO BI THANH TOAN: Tin dung thin phai c se tham chieu dm Hop d'ong nay BAO HIEM: Do ngtrari ban/mua chiu GIAM DINH: CAC DIEU KIEN KHAC: 20... DU'OC CHAP NHAN NGAY Bol: . NGU.61 MUA Xin kY va girl lai mot ban XIN XEM DIEU KIEN NGU'OI BAN

6 MAT BEN (Trang 2 - ND)

254

NHOISIG DIPU KHOAN CHUNG 1. Giao hang


Nghia vu giao hang dm ngugi ban la phai giao nlidng hang hod quy dinh 6 tren hop (long nay ("Hang hod") vao th6i gian hay trong khoang th6i gian quy dinh trong hop &Ong nay se tu/ thuOc vao su san c6 cua tau hay khoang tau N6u, theo diet' khoan cna hop (long nay, Ngtrgi mua phai thud tau hay thud khoang tau, Ngugi mua se phai thud tau hay khoang tau can thidt tren co s& tau chq va cung cap chi dan giao hang cho ngugi ban trong mgt th6i gian hop 1/ truck khi giao hang, nhung khOng chi han ch6 c6 ten tau va lich trinh chi tilt cila tau n6u Ngugi mua kh6ng dua ra nhilng chi dan nhu vay trong th6i gian thich hop trugc khi giao hang, Ngugi ban c6 the tu/ y mInh chu'an bi mot tau hoac khoang khac, vgi chi phi va rui ro Ngugi mua chin, va giao hang ma khong lam anh hung d6n hay them vao nhirng quyen hay nghia vu khdc ma ngugi ban c6 the theo hop dgng nay, theo luat hay theo quyen sa hitu tai san con lai hoac ngugc lai Trong trugng hop giao hang tirng phan bat k/ mot sty khong giao hang hay giao hang cham cita mot chuydn hang se khOng clugc hieu la su vi pham hop d'ong nay de lam cho ngugi mua c6 quyen hu/ hop (long nay hoac to ch6i khOng nhan nhung 16 hang sau

2. Thanh Wan
N6u viec thanh toan cho hang hoa dugc tidn hanh bang L/C, Ngtrgi mua se mg cho ngnOi ban hating mot L/C kh6ng hu/ ngang qua mot ngan hang loai mot c6 uy tin Vit tren qugc t6 ngay sau khi k/ k6t hop dong nay dugi clang va theo cac dieu khoan thoa man dgi vgi ngugi ban Ndu ngugi mua khong thanh toan tien hang dung han, khOng mg L/C, hoac khOng thtrc hien cac nghia vu khac theo hop (long nay mgt cach hop 1/ ma tinh truck (lucre, Ngugi ban c6 the dgi Ngugi mua trong khoang thgi gian hop 1/ phai dua ra nhung bao dam day NI hoan toan thoa man dgi vgi Ngugi ban ve nhung viec thut hien clang dan cac nghia vu cua minh theo hgp citing nay thl Ngugi ban cling c6 the ngimg viec giao nhung hang hod chua giao cho ddn khi nhiing str bao dam nhu vay dua ra 255

Ngued mua se tra theo gia cua hop &Ong nay kh6ng hoan bat, kien lai, hoac trir bat hay bat ky mat quyen tuong to nAo ma ngtrai mua c6 the c6 de chang lai nguai ban. Nht-mg quyen nhu vay se dugc thuc hien rieng gida Ngtred mua, Ngtrai ban vai nhau Bat ky nhting chi phi ve cuac phi piny mai nAo, chi phi them (nhien lieu, tien te, hoac flitting phi danh them kiic) thue, thue hai quan, thue nhap khdu hoac xuat khdu danh them hoac IA nhiing khoan khac thu bed nhA nudc hoac la phi bao hiem, nhfing thd nay c6 the bi tra bed ngtrai ban cho hang hoa sau khi ky ket hop clang se do ngued mua chiu va se dtroc hoAn lai cho ngtrai ban bed ngued mua khi yeu cau Neu ngueri mua kh6ng thanh toan cho hang hoa phii hop ved hop dang nay, Ngtrai mua se tra cho ngued ban mot khoan tien nhu IA s6 136i thuang flirting thiet hai chd khOng phai lA lai suat ngan hang cho s6 tien qua han vai tY le thdp hon trong 18% moi nam hoac muc lai suat cao nhdt cho phep bed luat cua nuac nguai mua, tinh tir ngAy den han thanh toan cho khoan tien do den ngay thuc sir thanh toan, tinh tren co sa mot nam c6 360 ngay dai vat tang s6 ngay thin te da qua 3. B6t kha khang 1\16u viec thuc hien cac nghia vu theo hop clang nay dm nguai ban bi anh hung true tiep hoac gian tiep hay can tra bed bat kha khang, bao gam nining kh6ng han the den: Thien tai, thing dat, song thug trieu, la ddt, hoa hoan, benh dich, tai hoa, han the kiem dich, tai hoa cda Men, chien tranh (tuyen b6 hay khOng tuyen b6) hoac su de doa cua chien tranh, dan bien, bao vay, bat gift hoac cam gift cita Chinh nha Cam quyen hay dan chung, tich thu tau thus' hay may bay, dinh cling, be xtrang, sty pha hoai ngdm, hay la nhting tranh chip lao dOng khac, no, tai nan hay hong hoc toan 1)0 hay mot phdn may mac, nha may, cling cu van tai hay phuong tien b6c hang, yeu cau cira Chinh phil, chi din, menh lenh hay sty quan cda Chinh phn, su khOng san c6 cac phuong tien van tai hoac cling cu bac hang, su pha san hay khOng tra &roc no dm nha san xuat hoac IA ngueri cung cap hang, hoac IA bat ky nguyen nhan nao hoac trong nhdng twang hop bat ky nAo vuert kha nang khong cite hop lY cua ngued ban hoac la nha san xuat hoac nhA cung cap hang hoa, khi do ngudi ban se khOng chiu trach nhiem dai vai thiet hai hu hang, hoac sty khOng thuc hien hay thuc hien cham tre nhting nghia vu cda minh theo hop clang nay, va c the tuY y minh keo dAi thdi han giao hang hoac la v6 dieu kien ket thtic hop (long ma khong c6 nghia vu doi voi phin chua thin hien theo hop clang nay trong mot chimg muc bi anh huang hay can tra tren

256

4. Kitting thtrc hien nghia vu Trong wrong hop: i. Ngued mua khOng thuc hien bat ky mot trong cac diet' khoin nao cila hop dung nay ii. Ngudi mua khOng tra dugc he't nhang khoan no den han iii. Nguoi mua roi vao tinh trang pha san hay khOng c6 kha nang tra no iv. Chi dinh nguili tin khac, ngubi thira hung hay ngirdri thanh ly toan b8 hay mot phan tai san vat chat dm ngutri mua "Trubng hop khOngthuc hien nghia vu" thi ngtthi ban c6 the tuy y rieng cua minh: i. Ket thdc toan bO hay mot phan dm hop &Ong

ii. Tuyen b6 tat ca cac nghia vu cua ngtrbi mua ve cac khoan tien phai tra ngay lip tirc iii. Ban lai cho ngtrbi khac s6 hang nay iv. Gift hang hoa lai vai chi phi va rui ro do ngtred mua chiu v. Dinh chi viec giao hang hoac vi. Gift nhang hang hoa Bang tren cluOng di va ngtroi mua se phai hohn lai cho ngued ban toan 1)0 thiet hai phat sinh truc tip hay gian tidp nay sinh tir trueing hop khOng thirc hien nghia vu nhu vay Quyen lcti va trach nhiem cim ngired ban hang theo hop (long nay la cOng don cua guyen loi, quyen va trach nhiem truck phap 101, theo le c6ng bang hoac nhang thin khac 5. Quy6n sa hiru tri tue KhOng c6 dieu kien nao trong hop (long nay khOng cluqc hidu la viec chuydn giao bat ky mot Patang, nhan hieu thuong mai, kidu clang sir dung, guyen tac gia, nhang cOng trinh chua cong b6 khac hay bat ky guyen s& him tri tue noa khac trong hang hod, tat ca nhiing guyen nay &roc guy dinh ro rang danh rieng cho ngudri so' hilu hop phap va dich thirc cua cluing

257

Ngtred ban se khOng chin trach nhiem hay c6 nghia vu d6i veri bat kS , su vi pham hoac la viec sir dung khOng duac pile') bat 14 Patang, bib arcing thuang mai, model sir dung, kidu dang quyen tic gia, nhung cang trInh chua cang b6 hay bat kS ,
,

guy&serhtinaokdc
6. Bao hanh va khieu nai

Trir nhung quy dinh rei rang ten hap clang nay, Ngueri ban kh6ng ro rang hay ngu y bao hanh ve tinh thich hap cho bat kS , mat muc dich sir *dung nhat dinh cim hang hod hay kha nang ban dugc cila hang hod Neu nhu c6 mat su bao dam nao, nghia vu cua Ngtreci ban se chi han cite trong viec thay the hoac sira chfra s6 hang hod, khuyet tat nay. Bat IcS1 mat khieu nai nao cua Ngueri mua ye bat kS, mat nao dm hang hod nay sinh theo hoac co lien quan den hap (Ring nay se dugc lam bang thu may bay bao dam trong yang 30 ngay sau khi hang hod den cang der hang va chi v6i nhang khieu nai ye hang hoa trong vemg 6 thing tir ngay tau den cang b6c hang, bat 1(5/ khieu nai nao nhu vay phai co tat ca nhung ban tuerng thuat chi tiet day dit ding voi bang chting cluing nhan, bat mat ngtreri giam Binh dtrac quyen lam dieu nay
7. Han the Ngu6i ban khOng chin trach nhiem, cho du trong hap (long trong bao hanh,

theo dan luat hoac tren cac co ser khdc, vori Ngueri mua ve thiet hai gian tiep, truc tiep, bat nger, dac biet, va trong bat IcS/ trtrerng hap nao t6ng s6 tien b6i thuerng cua ngtrbi ban d6i voi bat IcS7 hay toan 1)0 cac khieu nai cua Nguai mua cling se khOng vactt qua gid ca cila hang hod
8. Nhiing diet' khoan chung 1. Tat Ca nhung tranh chap, mau thuan nay sinh tir hay lien quan den hoat clang

nay hay mat su vi pham hoat clang nay ma khOng the giai quy& bang su d6ng yt dm Ca hai ben va khang cham tre bat hop ly nhirng thd nay se dirge giai quy& bang trong tai TOKYO, JAPAN, theo 1'14 ve cac thit tuc cua Hiep hOi trong tai thuang mai Nhat Ban. Phan quy& cita trong tai se la Chung thdrn va rang buOc d6i vdi ca hai ben va su xet xir trong nhirng phan quy& nay co the dua ra bat kS, toa an nao co quyen tai phan den voi nhiing phan quy& nay. Ve mai mat, hap thing nay chiu su diet' tiet va hieu theo lust Nhat Ban Nhiing thuat ngfr bu6n ban sir dung & day nhu FOB, CIF, CFR se dugc giai thich theo "INCOTERMS 2000" 258

2. Viec Ngtroi ban khOng doi hOi Nguoi mua thuc hien day dit cac nghia vu (dm cac dieu kien & day) vao met th6i di6m nao do se khOng anh huOng den quyen cua Ngubi ban bat thi hanh nhang diet' nay. Su khugc tir bat k/ sit vi pham nao cua bat k/ diet' khoan nay cua NgtrOi ban se khOng dugc hien la sit khugc tir bat k/ sit vi pham tiep theo cua diet' khoan nay hay la khugc tir ban than chinh diet' khoan nay 3. Hop deng nay lap len sit thoa thuan hoan toan gifra cac ben cua hop deng nay va thay the tat ca nhimg cuec giao tiep, thoi thuan, hay loci hira throe day va hien tai dei vgi chit dm hop &Ong nay. Hop &Ong nay khOng th6 b6 sung hay ket thtic trir khi bang sit thoa thuan bang van ban glib Ngued mua va Ngtr6i ban 4. Ngubi mua se khOng dugc chuy6n nhuong toan be hop thing hay met phan cua hop deng nay ma khOng co sit (long / bang van ban cua NgtrOi ban.

259

4. CONTRACT FOR GARMENT PROCESSING 4.1. The English version of the contract GENERAL TERMS AND CONDITIONS ON BASIS OF C.M.P. No: 08/GEN-ELLEN/19 Party A: VIETNAM NATIONAL GENERAL EXPORTIMPORT CORPORATION (GENERALEXIM) 46, Ngo Quyen Street Hanoi, S.R of Vietnam Hereinafter called "Party A" Party B: ELLEN CO. LTD 1508 - 1510 Star House, Salisbury Road, Kowloon, Hongkong Hereinafter called "Party B" A. The Contract 1. Party A undertakes to manufacture the garmer is specified in the separate contract or appendix of the contract (to be) signed by both the parties in accordance with the present general terms and conditions also for the delivery time stated in the above mentioned contract or its appendix 2. Party A shall be responsible for the delivery time provided that all materials and accessories to be supplied by party B arrive at Haiphong port in reasonable time prior to starting production of a new style 3. Any factories to be used for production of orders by Party A shall be approved/accepted by Technicians from Steilmann. B. Material supply 1. Party B and Steilmann will be responsible for supplying all the fabric materials (shell/lining/Acrylic Boa/pocketing lining) and accessories in due time for starting production together with the following extra items: - Fabric materials 2%

260

- Zipper, shoulder pad and special label - Fusing - Buttons, eyelet, stopper and padding - Size label, Hangtags, thread

1.0% 2% 3.0% 5.0%

- Others items not mentioned above and the wastage will be confirmed later All the above-mentioned fabric material's and accessories' wastage are only for replacement of any defective items. After the factory fulfils all the orders and quantity, these wastage percentages can be retained by the factory 2. Party B shall be responsible for sending the import documents 3 days before vessel carrying the goods referred to in A3 hereof ETA. As soon as the materials/accessories have arrived in the port, part A shall be responsible for applying for the import-license; the tax-free permit, and take the goods out of Customs to the factory within 10 days 3. After the arrival of the materials in Party A's factories, the factories should inform Party B and then both parties shall jointly check the contents of each carton and bale within one week and shall prepare the Checking Report - which should be signed by both parties and passed to Party B immediately 4. Party A shall be responsible for the fabrics and accessories from the date of receipt until the date of shipment and shall compensate party B the full invoice value for any loss or damage (Force majeure excepted) C. Sewing instruction and inspection 1. Party B will supply the original samples, sketches, sewing instructions and paper patterns to party A's factories from 5 to 7 days before Party A starts production of each style/order enabling the factories to make a sample 2. Party A's factories should make 3 counter samples based on supply instruction and paper pattern and send to Party B's technician to evaluate 3. Party A's factories should show Party B's technician the marker for each style and must have the said technician's approval before cutting 4. In case of more or less consumption of shell material or lining, accessories, the technician's consent in writing is required before cutting is made. Otherwise party B will charge back all the value in the absence of the technician's consent aforesaid 261

5. Any problem against paper pattern and sewing should be advised to B's technician immediately before production proceeds 6. An authorized representative from party B will come to inspect the goods during production and before shipment 7. Party A's factories shall inform party B and their technician that they may make the final inspection 2 days before Shipping. If after inspection is made garments have been rejected, factories still have time to repair and maintain the delivery date 8. After finished garments delivery, Party A's factories should send 2 samples (small size) of each style to Party B as shipment samples 9. In the event that Party A produces an unacceptable quality standard, or damages the fabric which has been delivered by Steilmann, it is herewith agreed that party A should pay for the fabric and accessories cost against the full invoice value. The quality standards are based on the approved sample confirmed by Party B or the Steilmann technician (in this case technician shall give technical guidance)
D. Shipment

1. Delivery time of each style shall be within 30- 45 days (depending on the quality of each style/order to be processed) after Party A's factories receive fabric materials/accessories in complete sets 2. Party A shall inform Party B of the estimated time the finished products will be ready for loading 7 days prior to such estimated time 3. For appointed Air Forwarder Schenker: All the original shipping documents including original Air Way bill, original certificate of origin; original invoice and packing-list should be sent to Schenker at the time when goods depart

4. For appointed sea forwarder: Eac-Saigon Shipping Service Ltd. All the shipping documents included inspection certificate issued by Steilmann technicians
E. Payment

All the payments shall be made by irrevocable Letter of Credit at sight. The Letter of Credit must be established 30 days before shipment.
F. Arbitration 1. The two parties shall amicably settle all the disputes arising during the performance of the contract. Should no settlement of disputes or such

262

difference of opinion be made amicably, then the disputes and difference of opinion shall be settled in accordance with the Arbitration Regulations of the Foreign Trade Arbitration Organization of a third country mutually agreed by the parties 2. The decision of the said arbitration shall be final and binding upon both parties This General terms and conditions of basis of C.M.P is made in English in six copies. Each party keeps three copies of equal validity with effect from the signing date. Party A should send one copy to its factories for reference. Made in Hanoi, on the 5 th August, 20 ...
FOR/AND ON BEHALF OF SIDE A FOR/AND ON BEHALF OF SIDE B

Ellen Co. LTD (Signed) D. Ellen General Manager

Generalexim (Signed/sealed) Thanh Tung Dep-General Director

263

Annex No: 01

TO THE GENERAL TERMS AND CONDITIONS ON BASIS OF C.M.P No: 08/Gen-ELLEN/20 Party A: VIETNAM NATIONAL GENERAL EXPORT-IMPORT CORPORK ION (GENERALLEXIM HANOI) 46, Ngo Queen street. Hanoi, S.R. of Vietnam Hereinafter called "Party 4" Party B: ELLEN CO.LTD 1508-1510 Star House, Salisbury Road, Kowloon, Hongkong Hereinafter called "Party P" Today 5 th Aug... 20 ..., the two Parties have agreed to sign this Annex to the above-mentioned Contract on the following terms concerning the materials and accessories for the processing of the commodity: Article I: MATERIALS AND ACCESSORIES FOR THE PROCESSING OF THE COMMODITY Side B shall supply all the materials and accessories to side A as the following calculation (Based on CIF HAIPHONG or CIF NOIBAI) - Fabric: 100,000 Metres - Accessories: worth 100,000.00 USD Article II: TIME OF DELIVERY All the materials and accessories supplied by Side B must be delivered at Haiphong Port 10 days prior to starting production for each style, from the end of September, 20 .. to the end of November 20 .. and to address: - Consignee and Notify party:

264

VIETNAM NATIONAL GENERAL EXPORT IMPORT CORPORATION, 46, NGO QUYEN STREET, HANOI, S.R. OF VIETNAM Other conditions not mentioned in this annex are to be performed as those in the contract No: 08/GEN-ELLEN/20 ..
FOR/AND ON BEHALF OF SIDE A FOR/AND ON BEHALF OF SIDE B

265

Annex No: 02 TO GENERAL TERMS AND CONDITIONS ON BASICS OF C.M.P


No: 08/Gen - ellen/20... Party A: Vietnam national general export Import corporation 46, Ngo quyen Street, Hanoi-vietnam (Hereinafter called "Side A") Ellen co.LTD 1508-1510 Star House, Salisbury Road, Kowloon, Hongkong (Hereinafter called "Side B")

Party B:

Today 5th. August, 20..., the two Parties have agreed to sign this annex to the above mentioned contract on the following terms and conditions concerning the commodity and quantity, price and time of delivery
1. Article I: Commodity Quantity C.M.P price Amount

Jacket Style No: 54011-2 54011-5 54423 Total

(3% 3,270 3,357 2,758 9,385 Pieces

(USD/FOB Haiphong or Noibai) 2.40 2.40 2.10 USD 7,848.00 8,056.80 5,791.80 21,696.60

(CMP price side A undertakes for packing such as: outer carton, plastic bands and or/PE bag/ctn sticky tape only).
2. Article II: Time of delivery

Shipment time of finished products from November 20 ... to end of December 20


3. Article III: country of destination: Germany

Other conditions not mentioned in this annex are to be performed as those in the Contract No: 08/GEN - ellen/20 ...
FOR/AND ON BEHALF OF SIDE A FOR/AND ON BEHALF OF SIDE B

266

4.2. The Vietnamese version of the contract

HOP DUG SO: 02


Ben A: CONG TY XNK TONG HOP 46, Ng6 Quyen Ha Noi, Viet Nam Sau day dugc goi la "Ben A" Ben B: CONG TY TRACH NHIEM HOU HAN ELLEN 1508-1510 Star House Dueng Salisbury, Kowloon, Hongkong Sau day dugc goi la "Ben B"

A. Ve hop (tong
1. Ben A dam nhan san xudt du quan do dugc quy dinh trong hop clang hoac phu kien hop clang rieng dugc ky ke't gifra 2 ben plat hop vai nhiing didu khoan NIA dieu kien chung nay, thai gian giao hang cling dugc xac dinh trong hop clang hay phu kien dm hop clang da not & tren. 2. Ben A chili trach nhiern ve tiled gian giao hang vai didu kien ben B cung cap tat ca nguyen lieu va phu lieu clang be ding met luc c16n cang Hai Phong trong thai gian hop 1/trtrac khi tidn hanh san xudt mat hang mai. 3. Moi nha san xudt theo don dat hang dia. ben A se phai dugc ky thuat vien cita cling ty Steilmann clang //chap thuan.

B. Cung cap nguyen lieu


1. Ben B va Steilmann se chiu trach nhiem cung cap day du vai nguyen lieu (Vai mat ngoai/vai dkrng/lOng Acrylic/vai lot nip va cac phu lieu dung han dd bat dau san xudt vai nhiing mat hang phu nhu sau: - Vai - Phecmotuya, dem vai va nhan dac biet - Me-ch dinh 2% 1% 2%

267

- Cdc, dinh 6 de, nut chan va dem vai - Nhan coy, mac treo, chi may

3% 5%

- Nhang nguyen lieu, phu lieu khOng not & tren va mdc hao but se xac nhan sau Moi mac hao but ve nguyen lieu not & tren chi thay the cho nhitng mat hang c6 sai sot. Sau khi nha may da hoan thanh tat ca cdc dan dat hang va s6 ltrqng, s6 phan tram hao but d6 co thd thuOc ye nha may. 2. Ben B chiu trdch nhiem giri cdc chdng tir nhap khdu 3 ngay truck ngay tau dd kien den. Ngay sau khi nguyen lieu va phu lieu den cang ben A phai chiu trach nhiem xin gigy phep nhap khdu, gigy mien thug NIA nhan hang hod qua hai quan den nha may trong yang 10 ngay. 3. Trong yang 1 tuan sau khi nguyen lieu den nha may ciia ben A, nhang nha may nay phai thOng bao cho ben B biet va ca 2 ben se ding kiem tra nQi dung cita tirng horn carton, ding kien va se th6ng bdo bien ban kidm tra duqc ki ket gifra 2 ben va giri cho ben B ngay lap tdc. 4. Ben A chiu trdch nhiem ve vai va phu lieu td ngay nhan hang den ngay giao hang va phai den bu cho ben B toan 1)0 gid tri hod dan vai moi mat mat hu hong (loai trd bat kha khang). C. liming din va kidm tra may 1. Ben B se cung cap man g6c, sa d6 (ban ve), huang dan may va man tren gigy cho cdc nha may cna ben A, td 5 den 7 ngay truck khi bat dau san xuat m6i mat hang/dan dat hang cdc nha may lam man thin.

2. Cac nha may cda ben A phai lam 3 man d6i tren ca s& huang dan va mdu tren gigy va giri cho nhan vien ky thuat dm ben B ddnh gia ky thuat. 3. Cdc nha may cila ben A phai xuat trinh cho ky thuat vien cda ben B xem mau ciia mai mat hang va phai duqc ky thuat vien thing y truac ktii cat. 4. Trong twang hop sir dung vai ngoai hoac vai lot, phu kien nhieu hay It han phai c6 su d6ng y bang van ban oh ky thuat vien trudc khi nen hanh cat may. Neu khOng ben B se di-1h tra lai trong truang hop kheng c chfr ky cua ky thuat vien. 5..Moi phat sinh ye man tren gigy va may se phai thOng bdo ngay cho ky thuat vien ciia ben B biet truac khi tiep tuc san xuat. 6. Dai dien dugs tuy quyen dm ben B se den kidm tra hang hod trong luc san xuat va tilt& khi giao hang. 268

7. cac nha may cita ben A phai thong boo cho ben B NIA ky- thudt vien cua ho kidm tra hang Ian cuai ding 2 ngay trtrac khi giao hang. N6u sau khi ket thtic kidm tra, mot phdn bi tir ch6i, cdc nha may van c thai gian de sira chita va dam bao giao hang. 8. Sau khi giao thanh phdn cac nha may Oa ben A se giri 2 mdu cer nho dm mai mat hang giao cho ben B lam mdu giao hang. 9. Trong twang hop ben A son xuat hang khOng phit hop chat lugng chudn hoac lam hong vai do Steilmann giao thi hai ben thoa thudn rang ben A phai tra tien vai va phu lieu theo tri gia hod don. Chat lugng chudn dugc duo tren co stir cac mdu da thong qua va dugc ben B hoac ky thudt vien cua Steilmann xdc nhdn (twang hop nay icy thot vien se hating don ky thudt). D. Giao hang 1. Thai gian giao hang cho tirng mat hang trong yang 30-45 ngay (pho thuec vao s6 luting mai man/don dal hang gia c6ng) sau khi cac nha may dm ben A nhdn duct nguyen pho lieu dongb0. 2. Ben A c tra.ch nhiem thong bdo thai gian du kien hang thanh phdm sin sang giao cho ben B truac 7 ngay. 3. "chi dinh nguai giao nhdn hang khOng" Schenker. Tat ca cac chting tir giao hang gac bao gom van don hang khOng g6c, giay chang nhdn xuat xtr goc, hod don g6c va phien clang goi g6c se dugc gin den tong ty Schenker (long thai khi hang hod di. 4. Chi dinh ngtrai giri hang &rang bidn: EAC-Saigon Shipping Service Ltd. Tat ca cac chting tir giao hang Om ca giay chung nhdn kidm tra hang hod do

ky thudt vien cua Steilmann cap.


E. Thanh town Mgt thanh toan dugc that hien bang L/C kh6ng huY ngang, thanh town ngay. L/C phai dugc ma 30 ngay truck khi giao hang. F. Trong tai 1. Hai ben se thuong luting giai guy& cac tranh chap xay ra trong qud trinh thuc hien hap citing da ky. I\T6u hai ben khong thoa thudn dugc cach giai guy& tranh chap hoac bat clang y kien thi cac y kien hoac cac bat dong se chrac giai quy6t theo 269

dieu le trong tai cua t6 chile Trong tai Ngoai caa nu6c thu ba theo thoi thu4n cua ca hai ben. 2. Quyet dinh cua trong tai la chung tham va rang buQc d6i vOi 2 ben, va Dieu kien chung nay tren cc sot CMP duac14 thanh 9 ban bang tieng Anh. M6i ben gift 3 ban co gia tri tuang duang, c6 hieu luc tit ngay ky kept. Ben A se giri 1 ban cho cac nha may tham khao. Hop oolong nay lam tai HAN0i, ngay 5 thang 8 nam 20 ...

DAI DIEN BEN B

DAI DIEN BEN A

270

PHU KIEN HOP WING 01


(Theo cac dieu kien va dieu khoan chung tren co sa C.M.P) S6 08/Gen-Ellen/20 Ben A CONG TY XNK TONG HOP 46, Ng6 Quyen HA NO sau day dugc goi IA "Ben A" Ben B ELLEN Co. LTD 1509-1510 Star House, Ph6 Salislexry, Kowloon, Hongkong sau day &roc goi lA "Ben B" H6m nay ngAy 5/8/19 .. ca hai ben da thoa thuan ky phu kien theo hop &Mg not tren va theo nhihig dieu khoan lien quan tai nguyen lieu va phu lieu de gia cOng hang hoa Dien 1: Nguyen phu lieu cho qua trinh gia cong hang hoti Ben B se cung cap tat ca nguyen lieu, phu lieu cho ben A theo tinh toan sau (tren co s& CIF Hai Phong hoac CIF NO BAi) - Vai 100.000 m - Phu lieu tri gia 100.000 USD Dien 2: Thai gian giao hang Tat ca cac nguyen lieu do ben B cung cap se dtroc giao tai cang Hai PhOng 10 ngAy truac khi bat dau san xuat timg ma tir cuai thang 9/20 .. cho den cuai thang 11/20... theo dia. chi: Nguai nhan hang NIA ben thong bao: T6ng cOng ty XNK tang hop 4.6 Ng6 Quyen HA Noi - Viet Nam dieu khoan hop clang ii) TuyeA b6 tat ca cac nghia vu cua nguai mua ve cac khoan tien phai tra ngay lap tac iii) lai. cho ngtrai khac trong viec thay the hoac sira chfra so hang h6a, khuyet nay. Bat 1(5, mOt khieu nai nAo cua Nguoi mua ve bat kS7 mat ilk) cua hang hOa leu la diet' kien lien quan tai hang hod, s6 Wong, gia ca va han giao hang

27-1

1/ Hang hoa Ao Jacket Ma s6 54011-2 54011-2 54423 TOng cong

S6 lining ( 3%) 3.270 3.330 2.758 9.385 chi&

Gia CMP (FOB Hai Phong hoac NO Bai) 2,40 2,40 2,10

S6 den

7.848,00 8.056,00 21.696,60

(tinh being USD. Gia CMP: ben A cung cap bao bi nha: cac tong ngoai, ttii plastic valhoac PE, being dinh) 2. Th6i gian giao hang: Th6i han giao hang thanh phdm tir thang 11/20.. tai cu6i thang 12/20.. 3. Noi hang din: COng hoa Lien Bang Dilc Nhilng dieu kien khac khong neu trong phu luc nay chieu theo hop dung s6 08/Gen-Ellen/19 .. BEN B

BEN A

272

5. CONTRACT FOR DISTRIBUTORSHIP AGENCY

5.1. The English version of the contract

DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT dated the last day of January 19 .. by and between AGIP PETROLI SPA Singapore branch having a place of business at 302 Orchard Road 14-02 to 14-04 Tong Building Singapore 0923 ("AGIP") And xxxxxxxxxxxxxxxxxxx whose registered office is xxxxxxxxxxx ("DISTRIBUTOR") Witnesseth: AGIP and DISTRIBUTOR hereby covenant and agree as follows:

1. Definitions
As used in this Agreement the following terms shall have the meaning set forth hereafter: a. "Products" shall mean AGIP Lubricants for Automotive and Industrial application and Special Products as listed in the First Schedule for the distribution by Distributor in Consumer Packages (as hereinafter defined) carrying the registered AGIP trademarks and/or it is agreed by the parties hereto that AGIP or AGIP Affiliates (as hereinafter defined) may from time to time without assigning any reasons thereto make improvements to or changes in the Products during the currency of this Agreement. Such improvement or changes even if resulting in a change in the characteristics of the Products shall not affect the status of the Products as the Products and AGIP shall notify DISTRIBUTOR of such improvement or changes b. "Territory" shall mean the Socialist Republic of Vietnam c. "Consumer Packages" shall mean such original standard packages from time to time adopted by AGIP d. "Affiliate" shall mean any entity which is controlled by or in control of or under common control with another specified entity
273

"Control" shall mean a 25% or larger ownership of issued and outstanding voting securities or common officers or directors or a contractual relationship allowing one entity to assume or substantially influence the management or operations of another. 2. Appointment a. Subject to the terms and conditions in this Agreement AGIP hereby grants to the Distributor the sole right during the continuance in force of this Agreement to purchase for distribution and resale in the Territory those of its Products exclusively for Automotive and Industrial Application (excluding international marine application) specified in the First Schedule b. This appointment shall take effect on .../.../20... and shall subsist for a period of ... years from that date unless otherwise terminated in accordance with the provisions of this Agreement and shall continue thereafter until terminated by either party giving to the other at any time, say six (6) months' notice in writing c. Provided always that the Distributor is not in breach of any of its obligations and terms whatsoever hereunder AGIP will not appoint any other distributor for the Products in the Territory during the term of this Agreement. However AGIP may during the period of six (6) months prior to the termination hereof appoint the Distributor's successor (if any) and allow AGIP and such successor to make itself known as AGIP's future distributor appointed to do business after the termination of this Agreement

3. Distributor's undertakings a. The Distributor shall during the continuance of this Agreement purchase all its requirement of the Products from AGIP and shall diligently and faithfully serve AGIP as its distributor in the Territory and shall improve and promote the sale of the Products for Automotive and Industrial application (excluding international marine application) to customers through the Territory and to ensure the best possible display of the Products in all marketing and sales outlets b. The Distributor shall ensure in all events that the minimum order for the Products for delivery to the Distributor shall be that set out in clause 6 (f) hereinafter set out in the Second Schedule hereto 274

c.

The Distributor shall ensure to conform with all legislation rules, regulations and statutory requirements relating to the importation storage distribution and sale of the Products in the Territory from time to time The Distributor shall not alter or treat in any way whatsoever the content and Consumer Packages of the Products and will supply Products only in Consumer Packages form and get up in which they are supplied to the Distributor by AGIP; The Distributor shall procure similar undertaking from all its marketing and sales outlets accordingly and shall be responsible for and stand liable for the compliance thereof

d.

e. The Distributor shall maintain sales records in respect of its outlets and supply each month a sales and stocks return and such other further records and reports all in the English Language as may be specified by AGIP from time to time f. The Distributor shall ensure that its salesmen visit regularly the business premises of present and potential marketing and sales outlets/customers for the Products in the Territory and in addition, attempt to obtain orders for the Products from any persons to whom they may be directed by GIP g. The Distributor shall be responsible for ensuring that the Products reach the consumer in the best possible condition and shall take all positive precautions to avoid contamination or alteration of the Products and the Consumer packages and shall educate and procure similar undertaking from all its salesmen and marketing and sales outlets accordingly and shall be responsible for and stand liable for the compliance thereof h. The Distributor shall promptly resolve satisfactorily any complaints relating to the promotion sale or provision of technical information and all other matters whatsoever in respect of the Products arising within the Territory. The Distributor shall promptly notify AGIP of any complaints or unusual comments (whether favorable or unfavourable or by way of requests for information) it may receive pertaining to the Products or of any defective Products; it is understood that AGIP shall not be in anyway responsible for or liable to any complaints whatsoever and the Distributor hereby agrees to fully indemnify AGIP accordingly

275

i. The Distributor shall keep AGIP regularly and continuously informed of the progress and development of the market in the Territory for the Products and for all goods similar thereto or competitive therewith and of all laws and regulations affecting the import distribution labelling packaging advertising and sale of the Products and of such goods in the Territory and of all matters whatsoever affecting or relevant to AGIP's business in the Territory j. The Distributor shall not distribute similar product in the Territory or enter into any business transaction in competition with AGIP k. The Distributor will keep full proper and up-to-date records in the English Language showing clearly all enquiries, transactions and proceedings relating to the distributorship, and shall, at all times permit AGIP or its representatives full access thereto 1. The Distributor hereby acknowledges that the Agreement is personal and shall not assign or purport to assign the benefit of this Agreement without the prior consent in writing of AGIP, of which consent shall not be unreasonably withheld without prejudice to the foregoing. It is understood that an amalgation or reconstruction or change in control and change in ownership of up 25% equity and above are deemed an assignment for which AGIP prior written consent must be procured m. The Distributor shall in selling the Products be bound by AGIP's conditions of sale as from time in force and any modification thereto made by AGIP either generally or in respect of any particular purchase and in selling shall contract on like terms to those conditions as from time to time in force together with any general or particular modifications as respects any particular sale and shall not make any promises representations warranties or guarantees with reference to the Products except such as are consistent with those conditions or as one expressly authorised by AGIP in writing n. The Distributor shall not directly or through any agent sell any of the Products outside the Territory or knowingly or having reason to believe that they would be so resold sell the Products to any person or body corporate or incorporate within the Territory with a view to their resale outside the Territory 276

o. The Distributor shall not directly or through any agent sell any of the Products for marine application or knowingly or having reason to believe that they would be resold, sell the Products to any person or body corporate or incorporate P. The Distributor acknowledges that it is not competent to and will not incur any liability on behalf of AGIP or in any way pledge or purport to pledge AGIP's credit or accept any order or make any contract binding upon AGIP q. The Distributor shall present a draft annual marketing advertising and promotion plan to AGIP for comment and approval prior to its implementation. It is understood that approval by AGIP does not amount to an acceptance of liability whatsoever or howsoever thereunder and the Distributor undertakes to fully indemnify AGIP at all times accordingly r. The Distributor undertakes that its marketing advertising and promotional activities in respect of the Products and shall at all times comply with the applicable law and the industry standards Distributor shall conduct its business in a manner that will reflect favorably on AGIP and AGIP affiliates, the Products and the good name and reputation of the foregoing and shall foster consumer confidence in the Products; Distributor shall not engage in any deceptive or misleading promotion or advertising or indulge or partake in or condone any unethical trade practices

s.

t. The Distributor shall fully indemnify and keep AGIP fully indemnified and harmless at all times and from time to time and against any and all loss damage claim penalties whatsoever and howsoever or liability or expense (and if soliitor's fees on a solicitor and client's basis to be taxed) suffered or incurred by AGIP resulting from a breach of any of the terms herein by the Distributor or otherwise whatsoever and howsoever in relation to or arising out of this Agreement 4. Principal's undertakings a. AGIP shall use its best endeavour to supply the Distributor with the Products ordered by the Distributor b. AGIP warrants Distributor that the Products will comply with the given 277

characteristics as amended from time to time as contemplated herein provided always that any claim for breach of the foregoing warranty must be submitted in writing by Distributor to AGIP within 5 (five) days after the date in which such claim is made. Failing which such claims shall not be considered or allowed; It is further provided that AGIP's liability in respect of any breach of the foregoing warranty shall be limited in all events to the Distributor's purchase price of the Products involved plus the cost of transportation of such Products approved in writing by AGIP prior to the time that such cost is incurred c. Subject to AGIP prior written approval of the marketing advertising and promotional plan and the budget thereof and subject always to the strict compliance thereof AGIP agrees to reimburse the Distributor half the aforesaid budget spent or actual spending whichever is the lesser; The approval by AGIP does not amount to an acceptance of liability whatsoever or however thereunder and the Distributor undertake to fully indemnify AGIP at all times accordingly d. No warranty or warranties expressed or implied including but not limited to any implied warranty of merchantability or fitness for any purpose whatsoever are given by AGIP in respect of the Products excepting only that warranty given to Distributor pursuant above which is subject to the terms conditions and limitations therein set forth

e. AGIP warrants that information furnished by AGIP to Distributor for advertising or other promotional purposes in respect of the products will be as far as practicable accurate at the time of publication

5. AGIP's reservations
AGIP reserves to itself notwithstanding anything to the contrary herein contained the following rights: a. To decline or to accept any order from the Distributor and by so dedining shall not incur any liability whatsoever to the Distributor if the Distributor is in breach of any one of the terms whatsoever of this Agreement Without prejudice to the generality of this Agreement and without assigning any reason there to and without prior notice to vary the First Schedule hereto defining the Products either by withdrawing therefrom

b.

278

a class or classes of Products named therein or by the addition thereto after notice to the Distributor of a further class or further classes of products of AGIP and as set to in Clause 1 (a) above c. If the Distributor is not at any time, producing adequate sales coverage throughout the whole of the Territory and the region thereof and without prejudice to any of its right under this Agreement AGIP may either exclude from this Agreement such part or parts of the Territory and/or exclude from this Agreement such one or more of the Products herein defined, or to take both these courses of action, save that neither such course of action shall be taken under this clause without prior notice to the Distributor d. To take such step itself as may seem necessary or expedient (including and without prejudice to the generality of the reserved right to appoint a representative in the Territory) to promote the sale of the Products in the Territory and to notify the Distributor of any persons, firms or bodies corporate carrying on business in the Territory who appear to be in a position to enhance the sale of the Products e. To enter upon manufacture or market research or distribution of any products whatsoever without consulting the Distributor or remunerating the Distributor in any way for any of such products may be sold in the Territory f. AGIP may sell and supply directly without prior consent or approval of the Distributor the Products to AGIP Affiliate and such persons or companies in which AGIP or companies belonging to AGIP own a share of not less than 30% and take part in in government's tenders from time to time for the supply and sale of the Products without remunerating the Distributor in any way
6. Prices, delivery and conditions of sale

a. Prices quoted to the Distributor for any of the Products are set out against the Products in the First Schedule hereto and are subject to change by AGIP at any time prior tc ')istributor's firm order b. AGIP shall have no liability whasoks\ er for any delay in delivery or performance caused by war, industrial disputes, fire, force majeure or any other circumstances whatsoever beyond its control
279

c. Without prejudice to any other rights under this Agreement AGIP shall be entitled to withhold further supplies without liability whatsoever while payment of any sums due from the Distributor remains outstanding d. Distributor shall submit its estimated requirements for the Products during successive four month's periods to AGIP at least two months prior to the commencement of each such period e. For shipments of the Products to Distributor under this Agreement Distributor shall submit its firm orders with irrevocable confirmed Letters of Credit established and received and further acceptance by AGIP as follows: - not later than the 10 th (tenth) day of the month preceding the month in which order is to be shipped and for Products to be supplied exSingapore plant - not less than 6J (sixty) days prior to the desired delivery date for Products to be supplied ex-Italy The terms of the irrevocable confirmed Letters of Credit shall be prescribed and approved by AGIP from time to time. f. The first Contract Year of this Agreement shall commence on the effective date hereof and subsequent Contract Years shall commence on anniversaries of said effective date; during successive Contract Years Distributor shall purchase from AGIP no less than the quantity of the Products set out in the Second Schedule Minimum quantities for subsequent renewal terms shall be agreed upon between the Parties hereto no less than 6 (six) months prior to the commencement of the renewal term in question or if not so agreed shall be the minimum quantity for the immediately preceding Contract Year or the actual quantity sold during such year whichever is the higher to be increased by 10% every subsequent renewal year up to 20... g. Distributor's orders for the products may specify delivery at one time but no requested delivery shall be for less than 1 (One) Container of Products h. AGIP reserves for itself and the AGIP Affiliates the right to discontinue 280

the manufacture or sale of any Products or to make changes in its composition at any time without any liability to Distributor apart from that of notifying Distributor i. Delivery of the Products shall be made within 60 days from the date of the receipt and acceptance by AGIP of the irrevocable confirmed Letter of Credit for Products to be supplied ex-Italy and within 30 days for Products to be supplied ex-Singapore If for any reasons whatsoever the Distributor shall fail to neglect to take delivery of the Products within 1 day of schedule date (inclusive) the AGIP shall be entitled to treat the order as cancelled and invoice the Distributor for all costs and expenses incurred or dispose of the Products within 14 days thereafter and invoice the Distributor for all costs and expenses incurred by AGIP and any diminution in the sale price
7. Passing of Risk/Title

a. Unless otherwise agreed the risk to the Products shall pass to the Distributor as soon as or when the Products or part thereof are deemed delivered or ready for delivery to the Distributor and/or the Products or part thereof are deemed to be in the Distributor's possession b. Notwithstanding the aforesaid and without prejudice thereto the Title to the Products only pass to the Distributor upon full payment of the price of the Products to AGIP c. Until full payment and prior to the Distributor's sale of the Products the Distributor shall keep and/or store the Products in such manner consistent with AGIP's ownership and manifested to all third parties
8. Payment terms

a. The Distributor agrees to pay for all Products of AGIP ordered by way of irrevocable confirmed Letters of Credit through a bank payable at sight to AGIP in United States Dollars payable in Singapore or elsewhere as AGIP may determine from time to time b. All amounts required to be paid by the Distributor shall be paid without deduction or abatement whatsoever

281

9. Stocks Agreement The Distributor shall at all times during the continuance of carry stocks of no less than one month's supply of the Products and ensure that all orders received by the Distributor's marketing and sales outlets are supplied without due delay. The Distributor shall take all reasonable steps to ensure that the stocks are properly stored at all times and that a continuous stock rotation policy is maintained for all stocks in all warehouses to ensure the quality of the Products is preserved. 10. Trade marks and patents a. It is agreed that all rights in the trade marks appearing upon or used in relation to the Products and of the goodwill attaching thereto are and shall remain the exclusive property of AGIP or its associated companies; the Distributor shall only use the said trade marks in conjunction with the Products and in accordance with the provisions of this Agreement. The said trade marks shall not be used in any manner liable to invalidate the registration or lessen the value thereof. The right to use the said trade marks in connection with the Products is onlygranted to the extent that AGIP is able to do so without endangering the validity of the registration or lessening the value. The Distributor shall immediately inform AGIP of any and every improper or wrongful use or any actual or potential infringement in the Territory of AGIP's patents trade marks, designs, models, or similar industrial or commercial monopoly rights which come to the Distributor's notice and shall provide full co-operation to AGIP at all times b. The Distributor shall not do or omit to do anything by which the goodwill and reputation associated with the trade marks might be diminished or jeopardised and shall include in all printed matter on which any of the trade marks of AGIP (or one of its associated companies as the case may be) and the form thereof to be determined by AGIP

c. Distributor is authorised to use AGIP's registered names logos and trademarks related to the Products during the existence of and in the course of operating under this Agreement; but nothing contained herein shall be construed as granting or shall grant to Distributor any rights,

282

title or interest in the above said names and trademarks or other industrial property right owned or being used by AGIP or any AGIP Affiliate. Distributor shall take no steps to register any AGIP or AGIP Affiliate trademark, trade, brand name or logo or any other word(s) or symbol(s) deemed deceptively similar thereto by AGIP. Distributor shall have no right to use any such word(s) or symbol(s) as or as part of its corporate or trade name d. Upon expiration of this Agreement Distributor shall forwith cease all use of AGIP's or any AGIP Affiliate's industrial property rights and shall not thereafter use any such right or any trade mark, brand name or logo deemed deceptively similar thereto by AGIP except in connection with the sale of such quantities of the Products as Distributor may have in stock at the time of expiration or termination 11. Confidentiality a. The Distributor shall not at any time during or after the term divulge or allow to divulge to any persons any confidential information relating to this distributorship or to AGIP b. Any technical commercial and confidential information given in order to assist the Distributor to carry out its obligations in this Agreement is only to be used for the said purposes only c. The Distributor shall ensure that its employees and dealers and marketing and sales outlets are aware of and observe the provisions of this clause both during the subsistence of this Agreement and thereafter

d. All written material embodying information designated by AGIP as confidential and all copies thereof are to be returned to AGIP on the termination of this Agreement e. The Distributor acknowledges that all information concerning the Products identified by AGIP or any AGIP Affiliate as trade secret which Distributor has obtained or shall obtain in consequence of this Agreement whether from AGIP and AGIP Affiliate or otherwise are solely for the purposes of this Agreement. Distributor undertakes to use the same degree of care as in preserving the secrecy of its own secret business information and shall procure similar undertaking from its own employees and dealers and marketing and sales outlets accordingly and 283

Distributor shall be responsible for and stand liable for the compliance thereof. The obligations of this Section shall not apply however to information which: i. prior to the transmittal thereof to Distributor was of general public knowledge or ii. becomes subsequent to the time of transmittal to Distributor a matter of general public knowledge otherwise than as a consequence of a breach by Distributor of its obligation under this Section or

iii. is made public by AGIP or iv. was in the possession of Distributor in documentary form prior to the time of Disclosure thereof to Distributor by AGIP and was not acquired directly or indirectly from AGIP and is held by Distributor free of any obligation of confidence to AGIP or any third party or v. is received in good faith from a third party to disclose it who to the best of Distributor's knowledge did not obtain the same from AGIP and who imposes no obligation of secrecy on Distributor with respect to such information 12. Independence of the parties It is agreed by the parties hereto that the Distributor is operating and will continue to operate for its own account and nothing in this Agreement is intended or shall be constructed to authorise the Distributor without the prior written approval of AGIP to create or assume any liability or indebtedness of any kind in the name of or on behalf of AGIP or to give any warranty of make, any representation in the name of or on behalf of AGIP and this Agreement shall not be construed as constituting the Distributor as agents of AGIP for any purpose whatsoever or to constitute a partnership between the parties hereto 13. Force majeure a. In the event that AGIP shall be unable to continue the commercial production of the Products by reason of causes beyond its control including by way of illustration (but specifically not limited to) fire, flood, explosion, action of elements, acts of God, accidents, epidemics, strikes, lockouts or other labour troubles or shortages, inability to obtain 284

or shortage of material, equipment or transportation, insurrections riots, or civil commotion, war, enemy action, acts, demands or requirements of any government or by other causes which it could not reasonably be expected to avoid, then it shall not be responsible for any loss whatsoever to the Distributor howsoever arising; Thereafter AGIP shall use its best endeavours to resume the commercial production of the Products b. In case of the extension of the circumstances of force majeure throughout a prolonged period of time whereby the performance of the respective obligation could not be carried out this Agreement shall be terminated at the request of either party and this Agreement shall be treated as frustrated whereupon: i. without demand all money due to AGIP shall be paid immediately without deduction; and ii. the Distributor shall cease to distribute the Products of AGIP immediately
14. Termination

This Agreement shall terminate: a. On expiry date; or b. If: i. ii. Any encumbrance shall take possession of any of the property of either party; or Either party shall become insolvent; or

iii. The Distributor shall become bankrupt or to go into liquidation either voluntary or compulsory unless as part of a bonafide scheme of reconstruction or amalgamation approved by AGIP or to be dissolved compound with its creditors or have a receiver appointed in respect of the whole or any part of its assets; or iv. A receiver is appointed in respect of one whole or any of the assets or undertaking or other process shall be issued against any property of the Distributor; or v. The Distributor shall cease or threaten to cease to carry on the 285

whole or any substantial part of its business other than in the course of reconstruction or amalgamation approved by AGIP hereto; or vi. If the Distributor commits or allows to be committed a breach of any of its obligations hereinstated and does not remedy such breach within fourteen (14) days after written notice has been given to it by AGIP; or If the Distributor commits or is charged with the commission of a criminal or unlawful act or by commission has committed or charged with a criminal or unlawful act; or

vii.

viii. If the Distributor engages in any conduct prejudicial to AGIP or AGIP's Affiliates generally or the marketing of the Product generally Then in any such event AGIP may by a written notice forthwith terminate this Agreement but without prejudice to any other rights of the parties hereto. 15. Effects of termination If this Agreement terminates for any reason whatsoever and without prejudice to any other rights: a. Without demand all money due to AGIP shall be paid immediately without deduction b. The Distributor shall cease to distribute the Products of AGIP immediately c. AGIP shall have the discretion and option to regard any unexecuted orders placed by the Distributor and accepted by AGIP before such termination as cancelled excepted those in respect of which the evidence to the Distributor shall have furnished documentary satisfaction of AGIP within thirty (30) days from the notice of the Products ordered to third parties prior to the termination of this Agreement d. The Distributor shall if requested by AGIP forthwith return to AGIP or elsewhere as AGIP may direct at the expense of AGIP all goods or Products belonging to AGIP in its possession or under its control and

286

all advertising and promotional matters relating to the Products in its control. In case of default, AGIP shall be entitled without notice to enter at any time upon the premises where the said goods or Products may be for the time being and to remove the same c. All Products remaining unsold which in the mutual opinion of AGIP and Distributor are not in good condition shall be forthwith disposed of by the Distributor as directed by AGIP f The Distributor shall return to AGIP all samples and publicity promotional and advertising material and technical materials and copies thereof used in the distributorship g. The Distributor shall return to AGIP all originals and copies of all documents and information in any form containing or covering in any way part of the Intellectual Property and technical specifications and literature h. In the event of termination of this Agreement AGIP shall have the option to repurchase from Distributor any or all of the Products purchased from AGIP and owned by Distributor on the date Distributor receives written notice of AGIP's intention to exercise the repurchase, shall be the invoice price thereof actually paid by Distributor plus verified transport cost paid by Distributor. In the event of the exercise of this repurchase option by AGIP, Distributor shall promptly deliver the Products to AGIP in conformity with all laws and requirements which may be necessary or proper to transfer good title to such Products to AGIP free and clear of any charge lien or encumbrance. AGIP shall pay Distributor for such product promptly after Distributor has complied with all of its obligations hereunder

i. Distributor recognizes and agrees that it is fully compensated for its activities in developing the market for the Products in promoting the name and reputation of the Products and in building goodwill in respect of the Products by way of revenues derived from re-sales of the Products during the currency of this Agreement. Consequently in no event shall termination of this Agreement for any reasons whatsoever and howsoever Give rise to any right of action by Distributor to recover additional compensation of loss or damage from AGIP 287

16. Non-Competition During the term of this Agreement the Distributor shall not distribute manufacture develop or occupy itself in any other way directly or indirectly with goods of a nature competitive with the Products inside or outside the Territory without prior written consent from AGIP 17. Appointment of sub-distributors a. The Distributor shall have the right to appoint Sub-Distributors and outlets to store and distribute the sales of the Products within the Territory on behalf of Distributor b. The Distributor shall also ensure that all Sub-Distributors and outlets shall at all times observe and comply with the terms and conditions as stated in this Agreement which are applicable to themselves as distributors and the Distributor shall be responsible and stand liable for the compliance thereof 18. Non-Waiver It is understood and agreed that the failure of delay on the party of AGIP to require performance or compliance of the Distributor of any provisions of this Agreement shall not affect AGIP's right to require performance or compliance which has been waived in writing 19. Assignment This Agreement shall be binding on the successors and assigns of each of the parties hereto, provided however that this Agreement shall not be assigned, transferred or sold in whole or in part by Distributor unless the terms and conditions of such assignment transfer or sale are approved in writing by AGIP 20. Savings of terms a. Notwithstanding termination herein the terms conditions warranties undertakings and indemnities contained or referred to herein shall continue to subsist and bind the parties and each individual thereof insofar as same or any part thereof remain unfulfilled or to be performed or outstanding or for the purpose of giving effect to each and every one of them b. The several undertakings of the parties shall survive and shall be treated 288

as in full force and effect notwithstanding any change in shareholding and directorship or the constitution of AGIP c. If anyone or more of the provisions contained herein or any documents or records executed in connection herewith shall be invalid illegal or unenforceable in any respect under any applicable law, the validity legality and enforceability of the remaining provisions or part thereof contained herein shall not in any way be affected or impaired 21. Arbitration All disputes arising in connection with the present agreement shall be finally settled under the provisions of the Singapore Arbitration Act and any modifications thereof from time to time. Arbitration proceedings shall take place in Singapore. Singapore law shall be applicable 22. Entire Agreement a. This Agreement embodies the entire understanding of the parties and overrides and supercedes any prior promises representations understandings or implications b. Any amendment hereto must be in writing and signed by the duly authorised representatives of AGIP and Distributor; No amendment to this Agreement shall be effected by the acknowledgement or acceptance by AGIP of purchase orders, invoices, shipping instruction forms or others similar documents which contain terms or condition at variance with or in addition to those set forth herein unless such acknowledgement or acceptance specifically states that it is intended to amend this Agreement 23. Interpretation a. Any reference to any of the parties herein include their assignees and/or successors-in-title and/or personal representatives b. Words importing the singular tense includes the plural tense and viceversa c. Words importing the masculine gender include the feminine gender and neuter gender and vice-versa d. Person(s) include(s) a Corporation and vice-versa
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e. The Clause headings in this Agreement are for ease of reference only and will not affect the interpretation hereof 24. Notices Any notices required to be served hereunder shall be sufficiently given if forwarded by registered post, recorded, delivered via cable, telex or telegraph to the address set out at the head of this Agreement or such other address' as may have been notified in writing to the other party for such purposes 25. Execution This Agreement may be executed in any number of counterparts. Any single counterpart or a set of counterparts executed in either case by all the parties hereto shall constitute full and original agreement for all purposes IN WITTNESS WHEREOF the parties hereto have caused this Agreement to be executed in counterpart original by their duly authorised representatives on the day and year first set forth above. SIGNED by On behalf of AGIP PETROLI SPA SIGNED by On behalf of DISTRIBUTOR

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5.2. The Vietnamese version of the contract

HOP HONG DAI IA' PHAN PHOI


Hop &Ong nay diroc lap ngay 1 thang 1 nam 19 ... giaa chi nhanh cita AGIP PETROLI SPA Singapore c6 tru s6 tai s6 nha 302 throng Orchard 14-02 to 14-04 Tong Building Singapore 0923 ("AGIP"). Va c6 tru s& da dang ky tai ("Ngubi phan ph6i").

AGIP va Ngabi phan ph6i (NPP) da 14 k6t hop &Mg nay va dong y nhu sau:

1. Cac dinh nghia


Khi sir dung trong hop dong nay cac khai niem sau se c6 nghia duqc giai thich dudi day: a) "San phdm" se c6 nghia la cac loci dau m6 bOi Iron cho dong co va dang trong cong nghiep va cac san phdm dac biet dirqc liet ke trong Bdng dank mac thin nhat de cho NPP tieu thu trong cac Bao Bi Tieu Dung (nhu se dtroc dinh nghia dudi day) c6 cac nhan hieu tilting mai va/hoac cac kieu dang Cita AGIP da duoc dang 14; Cac ben cita hop dong nay da dong y rang AGIP hoac cac cong ty con oh AGIP (nhu duoc dinh nghia sau day) 6 cac th6i kS , c6 the thirc hien viec nang cao chat luting hay thay d6i cho cac san phdm trong tiled han hieu lac dm hop (long nay ma khOng phai dim ra bat 14 li do gi cho sir thay d6i d6; viec nang cao chat Wong hoac thay d6i nay se khong anh huO'cng den tinh chat phap 17 cua san phdm nhu la 1 san phdm them chi ca khi den den cac thay d6i v6 cac dac tinh cua san phdm va AGIP se thong btio cho NPP viec tang chat Wong va cac thay d6i do b) "Dia hat" c6 nghia la na6c COng hoe xa hOi chit nghia Viet Nam c) "Bao bi tieu clang" c6 nghia la cac bao bi tieu chudn do AGIP clang trong tang thbi ki d) "COng ty con" c6 nghia bat kl mat thirc the ilex) chiu sir diet' khien caa AGIP hoac dudi sir dieu khien chung voi cac thirc the ca the khac "Dieu khien" c6 nghia la chi6rn 25% hoac nhieu hon quyen s& him dol veri trai phial c6 quyen bieu quye't hien da phat hanh hoac c6 cac can bO hoac giam d6c chung hoac mot m6i quan he c6 tinh hop &Ong cho phep mot thirc the dam nhen hoac c6 anh hir6ng ldn den viec quart 17 hoac hoat Ong dm thirc the khac 2. ViCc chi dinh a) Theo cac dieu khoan cila hop Ming nay AGIP cho phap NPP trong thbi han 291

hien luc cua hop dong dOc quyen mua dd phan ph6i va tieu thu lai trong Dia Hat cac san phdm cua AGIP cho dOng co va trong c6ng nghiep (trir ling dung vao 'iang hai qu6c to quy dinh cu the trong Bdng danh muc the nhat b) Viec chi dinh nay se c6 hieu luc vao ngay .../...va se keo dai trong 1 giai clop x nam tit ngay d6 va se tieP tuc sau thOi gian do cho ddn khi diroc kdt thilc bbri 1 trong 2 ben thOng bao truck 6 thang cho ben kia bang van ban vao bat ky thOi didm nao trir khi bang cach khac, bi k6t thilc theo cac dieu khoan dm hop (long nay
3. Trach nhiOn (cam ICCI) cua NPP

a) Trong thOi gian hieu luc cua hop d6ng nay NPP se mua cua AGIP a dap ung tat ca cac nhu cau cua minh ve cac san phdm va se can man va trung thtic coi AGIP la ngirOi cung cap cua minh trong Dia Hat va se tang cuOng thdc ddy viec tieu thu cac san phdm cho cac drig dung cua Ong co va cOng nghiep (trir tIng dung hang hai quoc te) cho cac khach hang cua minh tren toan 1)0 Dia Hat va dam bao viec trung bay cac san phdm tot nhat co thd trong tat ca cac diem tieu thu va ban hang b) NPP se dam bao trong moi throng hop don dat hang vOi s6 luong nh6 nhat giao cho NPP se la so luong quy dinh trong dieu 6 (f) sau day &roc quy dinh trong bang danh muc thti 2 cua hop dong nay c) NPP dam bao rang ho se tuan thu moi quy chd, quy tac, quy dinh va cac quy dinh phap ly lien quan den viec nhap khdu, bao quan, phan ph6i va ban cac San phdm trong Dia Hat tong thOi ky d) NPP se khOng thay d6i hoac xu lf bang bat kl cach nao hang hod va Bao bi tieu dung cua cac San Phdm va se cung cap cac san phdm do chi trong cac dang va kieu cua bao 131 tieu dung ma AGIP cung cap cho NPP Do do NPP se yeu cau cac cam ke't arcing to tir cac didm ban hang va tieu thu san phdm cua minh va se chiu trach nhiem cho viec man thu cac nguyen tac nay e) NPP se duy tri cac bao cao ban hang dm cac diem ban hang va tInh hInh cung cap cua minh tong thang s6 luong hang tieu thu va ton kho va cac bao cao khac nhu vay bang tieng Anh khi c6 thd clugc AGIP yeu cau trong ding thai ky f) NPP dam bao rang cac nhan vien ban hang dia minh thirOng xuyen ddn tham co sbr kinh doanh cua cac didm tieu thu va ban san phdm/khach hang hien tai c6 kha nang trong Dia Hat ngoai cac cuOc vieng tham dd nhan diroc don dat hang mua san phdm to bat ky ngtroi nao ma c6 thd do AGIP chi dinh g) NPP chiu trach nhiem cho viec dam bao rang cac San Pham ddn tay ngirOi tia dung trong dieu kien tot nhat c6 thd va se thirc hien tat ca cac bien phap pheng cac san phdm vao cac bao ngira tich cuc dd tranh viec nhiem bdn hoac thay 292

bi tieu dung va se htrang dan va yeu can cac cam ket ming to tir phia tat ca cac nhan vien ban hang Ira do do se chiu trach nhiem cho viec tuan thu cac cam ket nay h) NPP se ngay lap tCrc giai guy& on thoa bat kSf cac phan nan lien quan den viec auk day ban hang hoac viec cung cap cac thOng tin ve ky thuat va tat ca cac van de khac tiring to nhu vay ve san pham nay sinh trong Dia Hat; NPP se ngay lap tirc thOng bao AGIP bat ki phan nan hoac cac nhan xet khong binh thuing nao (bat ki tit hay xau hoac yeu cau cung cap th6ng tin) ho c6 the nhan citric lien quan den hang hod hoac cac san pham c6 16i; cac ben hieu rang AGIP se khOng chiu trach nhiem bang bat ki cach nao ve cac phan nan va NPP bang hip ding nay dingy bii thuing lai hoan toan cho AGIP i) NPP se dam bao thuing xuyen va lien tuc thOng bao cac tienbO va phat trien ciaa thi truing cho cac San pham, cho cac hang hod wing tkr, va cac hang hod canh tranh vii chiing trong Dia Hat va tat ca cac quy dinh luat phap anh huing toi nhap khau, phan phoi nhan hieu bao bi quang cao va fiat thu caa nhang hang hod do trong Dia Hat va tat ca cac van de khac anh huing hoac lien quan den viec kinh doanh cac san pham AGIP trong Dia hat j) NPP se kh6ng phan phii cac san pham wing to trong Dia hat va ki ket cac thuing vu canh tranh vii AGIP cac bao cao day du, &mg dan, va cap nhat bang tie'ng Anh k) NPP se luu chi ri rang tat ca cac thu yeu cau, cac thuong vu va cac thu tkic lien quan den quyen phan ph6i va tai moi thin diem cho phep AGIP hoac cac dai dien cua AGIP tiep can cac chung to nay I) NPP i day xac nhan rang hop ding nay la chi Oita AGIP va NPP va se khOng chuyen nhuing hoac ngam chuyen nhtring quyen lgi dia hip ding nay ma khing co su dingy bang van ban cna AGIP va su dingy nay se kh6ng citric to ch6i mat cach phi 11, khing anh huing den cac dieu not tren; cac ben hieu rang mot su sat nhap cai tao lai hoac thay dii quyen dieu khien hay thay dii quyen si hau tren 25% s6 co phieu duic hieu la chuyen nhtring va dieu nay nhat dinh phai cc -) su dingy truck bang van ban dia AGIP m) Trong viec tieu thu NPP se bi rang buOc vii cac dieu kien ban hang cila AGIP co hieu ivy trong tang thin ky va cac thay dii cho chfing do AGIP tien hanh ca ve dieu kien chung cling nhu ve cac vu mua sam cu the va trong viec ban hang se ki hip ding theo dieu khoan wing to vii nhang dieu nay ding vii bat ki cac thay dii chung hoac rieng nao cho tang vu ban hang rieng, NPP se khing cam ket xuat trinh giay bao hanh cho cac san pham tir nhang thu phii hop vii cac dieu khoan nay hoac &pc AGIP cho phep bang van ban 293

n) NPP se khOng trkrc tieP hoac qua bat ki mot trung gian nao ban bat ki San Phdm nao ngoai Dia Hat hoac cho cac ca nhan hoac ca quan nao thanh lap trong Dia Hat c6 muc dich ban tai ngoai Dia Hat ma NPP biet rang hoac c6 1i do de tin rang chting se duqc ban lai nhu vay o) NPP se khOng trkrc tiep hoac qua bat ki mot trung gian nao ban bat ki San Phdm nao cho cac king dung hang hai cho bat ki ca nhan hoac ca quan nao, ma NPP biet hoac c6 lido tin rang chting se duac ban nhu vay

p) NPP xac nhan rang khOng du quyen de va cling se khOng ganh chiu thay mat cho AGIP bat kS/ khoan no nao caa AGIP hoac bat ki cach nao cam co hoac ngdm cam co uy tin cita AGIP hoac chap nhan bat ki don dat hang nao hoac ki bat ki mot hap (long nao rang buOc AGIP q) NPP xugt trinh cho AGIP ke hoach dkr dinh quang cao va Marketing hang nam de AGIP nhan xet va thOng qua tru6c khi thkrc hien; cac ben hieu rang su thOng qua cita AGIP khOng duot qui la viec chap nhan cac trach nhiem hoac bat ki viec nao arcing tkr nhu vay trong viec thOng qua nay va NPP cam ket boi thuang toan bo cho AGIP tai moi thai diem tuong (mg r) NPP cam ket rang cac hoat Ong Marketing, quang cao, va thtic ddy cho San Phdm tai moi thai diem luOn phi' hop vdi luat ap dung va cac tieu chudn cung nghiep s) NPP se thuc hien cung viec kinh doanh sao cho tao ra tieng tot ve AGIP va cac cung ty con caa AGIP cac San Phdm va ten hang hod va tieng tam dm cac thin not tren va se ding co long tin oh ngtrai tieu dung doi vdi cac San Phdm; NPP se khOng hoat dOng viec quang cao lira &Si va se khOng theo duoi tham gia va nhan nhuang cho cac tap doan buOn ban trai vdi quan niem thOng thuang t) NPP se den ba toan 13.0 va luon dam bao AGIP duac den bit va khOng bi anh huang tru6c cac thiet hai doi tien phat, cac khoan tucmg to nhu vay hoac cac khoan na hoac chi phi (va neu phi thue luat su tren co s& khach hang hoac luat su phai chiu thue) ma AGIP phai chiu lo viec vi pham cua NPP bat ki diet' khoan nao trong hop clang nay hoac cac viec khac arcing ttr xay ra bang cach khac lien quan den hoac nay sinh ti' hop (long nay ti' moi thai diem va timg giai clop 4. Trach nhiOn ciia ngtroi uy tithe a) AGIP se co gang het sac de cung cap cho NPP cac San Phdm do NPP dat hang b) AGIP bao dam v6i NPP rang cac San Phdm se phi' hop vai cac chi tieu chat Wang quy dinh nhir sira doi trong tang thai ki c6 quy Binh trong hop clang nay v6i 294

dieu kien bat kSikhieu nai nao ve viec vi pham cac bao dam da not tren phai dugc AGIP de trinh cho AGIP bang van ban trong Ong 5 ngay sau ngay ke tit ngay lap don khieu nai, qua tiled han tren cac khien nai nhu vay se khOng dugc xem xet; ngoai ra hop dong con quy dinh rang trach nhiem cita AGIP ve viec vi pham cac bao dam not tren se dugc han the trong moi truing hop den gia mua cua NPP Ong vii cac chi phi van chuyen cac san phdm nay dugc AGIP th6ng qua bang van ban truOc khi chiu cac chi phi nhu vay c) TuSr thuOc vao skr thong qua trudc bang van ban cita AGIP ye ke hoach thtic ddy va quang cao va so tien danh cho viec nay va luOn tuS7thuOc vao viec tuan thit cac diet' nay trong hop (long AGIP hoan lai cho NPP 1/2 s6 tien not tren hoac s6 tier' thkrc to sir dung tuSi theo s6 nao nhO hon. Sir th6ng qua cita AGIP khOng dugc qui la viec chap nhan cac nghia vu hoac cac khoan tuong to theo do va NPP cam ket boi thagng toanbO lai cho AGIP tai moi thin diem d) AGIP kh6ng dua ra su bao dam nao bao gom ca bac, dam ro rang hoac ngu kh6ng chi han the den cac bao dam ngu y, ye tinh c6 the tieu tint dugc hoac tinh phi hop cua san phdm veri muc dich nao cho cac San Phdm chi trir cac bao dam cho NPP phi hop \Teri (b) o tren phi hop vii dieu kien va thu hieu t6 tang qui dinh & do e) AGIP dam bao rang cac th6ng tin do AGIP cung cap cho NPP de quang cao hoac cac muc dich thilc ddy khac do san phdm se chinh xac ve mat that tien vao thu diem xual ban 5. Cac bac, luu cua AGIP Cho du c6 trai vii bat ki dieu gi c6 trong hop clOng nay AGIP bao luu cho minh cac quyen sau: a) Ti chi hoac chap nhan bat ki don dat hang nao cua NPP va bang viec tir ch6i nhu vay AGIP khOng chiu bat ki trach nhiem gl hoac cac thd tuong to doi vgi NPP nett NPP vi pham bat ki mot dieu khoan nao hoac bat ki viec tuong to nao trong hop dong nay b) Thay dei bcing Danh Myc This nhdt cita hop (long nay xac dinh cac San Phdm bang cach hoac rut khOi bang nay mot hoac mot so loci san phdm c ten trong bang hoac them cac san phdm vao bang nay sau khi thong bao cho NPP ve mot hoac cac loci san phdm cua AGIP nhu qui dinh trong dieu 1 not tren ma kh6ng anh huong den tinh tong quit cita hop dong nay, kh6ng dua ra bat ki li do gl va khOng thOng bao trugc c) Neu NPP tai bat ki thin diem nao kh6ng dam bao day dit viec tieu thu hang cho toan bO Dia Hat va khu vac cita Dia Hat, khOng anh hiring den bat ki quyen nao cua minh theo hop dong nay AGIP c6 the loci trir ra khOi hop &it -1g nay mot 295

phdn hoac cac phdn nhu vay caa Dia Hat va/hoac loai trir ra khoi hop (long nay mot hoac nhieu san phdm xac dinh trong hop &rig nay hoac thkrc hien ca hai hanh dOng nhu vay ma khOng phai thOng bao voi NPP trir rang ca hai hanh dOng nhir vay khOng duqc thkrc hien theo dieu khoan nay d) Tir thkrc hien cac bien phap khi thay c6 the can thiel (bao gom va khOng Anh hu6ng den tinh tang quat cua quyen duoc bao luu chi dinh mot dai dien trong Dia Hat) fink ddy viec tieu thu san phdm trong Dia Hat va thOng bao cho NPP ve bat ki ngtr6i, cong ty hoac to chile nao c6 kinh doanh a trong Dia hat ma c6 the ddy manh duoc viec tieu thu san phdm

e) Bdt ddu san xuat hoac ighien cdu thi truang hoac phan ph6i bat ki san phdm nao hoac viec nhu vay ma kh( ng phai hoi y kien NPP hoac tinh hoa hong cho ngtr6i phan phi bang bat ki each nao ve cac san phdm nhu vay khi c6 the duoc ban trong Dia hat f) AGIP c6 the ban va cung cap true tip khOng can c6 su dong yr truck dm NPP cac San phdm cho cac cong ty con dm AGIP ma trong cac cling ty nay AGIP hoac cac cong ty thuOc tap doan AGIP s6 huu it nhat 30% c6 phielr va tham gia vao cac cuOc dau thdu caa chit-1h pha, khi co, cho viec cung cap va ban cac San Phdm ma khOng phai tinh hoa hong cho NPP bang bat ki each nao

6. Gia ca, giao hang va the dieu ki0 ban hang


a) Gia Ca cho bat ki cac San Phdm ban cho NPP duoc qui dinh cho cac Sdn Phdm Bang qt ke ilia nhat ctia hop &lig nay va tuy thuoc vao su thay d6i cua AGIP tai bat kSr th6i diem nao truck khi nhan duoc don dat hang c6 dinh caa NPP b) AGIP se khOng chiu trach nhiem ve bat ki sir cham tre nao trong viec giao hang hoac viec thkrc hien do chin tranh, tranh chap cong nghiep, chay, bat kha khang hoac bat ki tru6ng hop nao khac nhu vay nam ngoai quyen kiern soat caa minh c) KhOng anh huong den bat ki quyen nao khac theo hop dong nay AGIP se c6 quyen ngirng viec giao hang tieP ma khong chiu trach nhiem ve cac nghia vu arcing to trong khi viec thanh toan bat ki khoan tien deb han nao caa NPP van ton tai d) NPP se de trinh nhu cdu dkr kieit caa minh ve cac San phdm trong 4 thang tieP sau cho AGIP it nhat 2 thang truck ngay ddu tien caa giai doan 4 thang e) Ve cac chuyeit hang giao cho NPP theo hop dong nay NPP se xuat trinh cac don dat hang c6 dinh cua minh ding voi L/C khOng huYr ngang c6 xac nhan duoc m& va duoc AGIP nhan va chap nhan nhu sau: - KhOng cham hon ngay thd 10 caa thang tru6c, thang ma trong thang nay 296

hang hod dm don dat hang phai duoc giao d6i vgi cac San Phdm duoc giao tir Singapore - KhOng qua 60 ngay tru6c ngay giao hang du tinh d6i vgi cac san phdm duoc giao tir Italia Cac dien khoan cua L/C khong huY ngang c6 xac nhdn phai duoc ghi 1-6 va thong qua b&i AGIP tong thbi diem f) Nam hop dong ddu tien dm hop dong nay se bat clan vao ngay c6 hieu luc dm hop (long nay va cac nam hop (long tiep theo se bat ddu vao ngay ki them cua ngay c6 hieu luc da noi; trong cac nam hop clang tiep theo NPP se mua cua AGIP kh6ng it han s6 lacing cac San Phdm qui Binh trong Bdng lift ke thir hai S6 Wong t6i thieu trong cac th6i han keo dui tiep theo se duoc hai ben dm hop clang nay thou thuan (long y tru6c ngay bat ddu cua th6i han keo dui noi tren it nhat 6 thang nen kh6ng dong y duoc nhu vay se la s6 lacing t6i thieu cua nam hop dong truck ngay sau do hoac la s6 luong t6i thieu nay se duoc tang them 10% moi nam trong tat ca cac nam duo'c keo dui tiep theo cho den nam 20... g) Cac don dat hang cho cac San Phdm cua NPP c6 the cu the hod hang se giao tai mot th6i diem hoac cac thOi gian khac nhau nhtmg lacing hang hod yeu cau phai lon han hoac bang mgt Container h) AGIP bac) Itru cho minh va cac cOng ty con cua AGIP quyen dugc ngirng viec san xuat hoac ban bat ki San Phdm nao hoac thay dei thanh phan cat' tao cua cac san phdm cua minh tai bat ki thai diem nao ma khong chiu bat ki truth nhi'em gi dCii vgi NPP trir truth nhiem thOng bao cho NPP i) Qic San Phdm se duoc giao trong yang 60 ngay ke tir ngay AGIP nhan duoc va chap nhan L/C khong huY ngang co xac nhan d6i v6i cac san phdm ducic giao tir Italia va trong \Tong 30 ngay d6i vgi cac San Phdm khong dugc giao tir Singapore j) N6u vi bat ki li do gi va NPP khOng hoac sao lang nhan hang trong yang 14 ngay tir ngay dir kien (ke Ca ngay nay) sau do AGIP se co quyen coi don hang la duoc huY va ghi hod don dOi NPP tat ca cac chi phi do AGIP chiu va bat ki sty giam nao trong gia ban 7. Chu361 riii ro/s6 hiru a) Trir khi dong y khac di, rth ro d6i vgi hang hod se chuyen qua NPP khi cac San Phdm hoac mot phAn cua cluing duoc coi la da duoc giao hoac san sang giao cho NPP va/hoac cac San Phdm hoac met phAn cua cluing dugc hieu la da thugc quyen ser hith cua NPP

297

b) Bat ke didu net tren va khOng anh hu&ng den cac dieu nay guy& s& hint dei voi hang hoa chi chuydn qua NPP khi thanh toan toan be den hang theo gia cita cac San Phdm cho AGIP c) NPP se trir va/hoac lu'u kho cac San Phdm voi quyen s& him cita AGIP va the hien re diet' nay cho ben thd ba biet cho den khi thanh toan toan be va truot khi NPP tieu thu cac san phdm 8. Thanh toan a) NPP clang y thanh toan cho toan be cac San Phdm dugc dat hang cita AGIP bang L/C khOng ht4 ngang c6 xac nhan tra tier' ngay qua met ngan hang den AGIP bang USD c6 the thanh toan tai Singapore hoac cac not khac nhu AGIP c6 the xac dinh tong thei diem b) Toan be khoan tier' yeu cau NPP tra se dugc thanh toan khOng khau trtr hoac giam bet hoac cac viec ttrong to 9. Du tril hang Trong thbi han hieu luc cua hop (long nay NPP se luen luen duy tri met lugng hang du tar khOng it hcm khei lugng hang cung cap trong met thang va dam bao rang tat ca cac don hang nhan dugc to cac diem tieu thu va ban hang cita NPP dugc cung cap khOng cham tr8, NPP thuc hien tat ca cac bien phap hop 11 a dam bao rang lugng hang du trCr la thich hop va met chit -1h sach quay \Jong du till lien tuc dugc duy tri d6i vai tat ca cac hang hoa du tax trong tat ca cac kho chtla de dam bac, rang chat Wong cUa cac san phdm dugc bao ye 10. Nhan lieu thuong mai va cac phat minh a) Cac ben dong y rang tat ca cac quyen ve nhan hieu thuong mai & tren hoac dugc sir dung cho cac san phdm va quyen khai thac kem theo day van se la tai san rieng cua AGIP hoac cac cOng ty con cila minh; NPP se chi sir dung cac nhan hieu thuong mai da not trong cac cOng viec lien quan den cac san phdm va phit hop vOi cac didu khoan cita hgp deng nay, cac nhan hieu thuong mai da not se khOng dugc sir dung theo cach ma c6 the lam mat hieu luc cita viec dang ki hoac giam bert gia tri cita chung, quyen dugc sir dung cac nhan hieu thuong mai nay cho cac san phdm chi duet cho phep trong chirng muc ma AGIP c6 the lam nhu vay ma khOng lam nguy him den hieu luc cua viec dang ki hoac lam giam gia tri dia. no; NPP se bao ngay cho AGIP ve bat kl sir sir dung khong thIch hop hoac sai hoac sir thuc su vi pham thuong mai, thiet ke mau cua AGIP ma NPP thay, va se luen luOn Ong tac chat the vOi AGIP b) NPP se khOng lam hoac b6 khOng lam bat ki dieu gi ma c6 the giam hoac 298

lam nguy hiem den uy tin quyen khai thac lien quan den nhan hieu thuong mai va NPP se ghi vao tat ca cac an phdm c cac nhan hieu thuong mai mot cau rang cac nhan hieu thuong mai do la nhan hien thuong mai cud. AGIP (ho4c mot trong s6 cac tong ty con dm AGIP tuY truing hop) hinh fink cua cac an phdm nay phai dugc AGIP guy& dinh c) NPP dugc pile') sir dung ten hinh tuong va cac nhan hieu thuong mai dugc clang ki cua AGIP lien quan den san phdm trong thin han hieu lirc caa hop thing nay va trong giai doan tridn khai theo hop dong nay; khOng mot dieu gi & trong hop clong nay se dugc cho la cho hung hoac se cho NPP huOng bat ki quyen sd hitu nao hoac la quyen lgi trong ten va nhiin hieu thuong mai hoac la quyen so' him cOng nghiep khac cua AGIP \Ta clang dugc AGIP hoac cac cOng ty con cua AGIP sir dung NPP se khOng thirc hien bien phap nao de clang ki bat ki bieu tuong thuong mai, nhan hieu thuong mai va hinh tuong hoac bat ki cac chit cua AGIP va cac cOng ty con cua AGIP hoac cac chit va hinh mau khac ma AGIP cho la tuong to vii cac chit tren. NPP se khOng co quyen sir dung bat ki mot chit hoac hinh mau nao la hoac mot phan ten thuong mai cua AGIP d) Khi het thin han hieu luc cua hop (long nay NPP se ngay lap tirc ding viec sit dung tat ca cac quyen s& him cOng nghiep va sau do se khOng sir dung nhitng quyen do hoac cac bieu tuong thuong mai ten hieu hoac hinh mau ma AGIP cho la toting to vii cac thi nay trir viec dung lien quan den viec tieu thu s6 luting cac San Phdm ma NPP co the a trong kho vao thin diem het han hoac ket thtic hop &lig 11. Tinh ban mat a) Tai mot thin diem trong hoac sau thin han hien luc dm hop (long nay NPP se khong va khong dugc phep 66110 cho bat ki ngtrbi nao bat ki mot thong tin bi mat nao lien quan den viec phan phoi ho4c lien quan den AGIP b) Bat ki thong tin bi mat ye ky thuat va thuong mai nao do AGIP cung cap de gitip NPP thut hien nghia vu cua minh trong hop &Ong nay chi diroc sir dung cho muc dich da neu c) NPP se dam bao rang cac nhan vien cua minh, cac ngtrOi ban hang, cac diem tieu thu va ban san phdm biet ro va ton trong cac quy dinh cua dieu khoan nay trong ca thin han hieu luc cung nhu sau nay d) Tat ca cac an phdm cung cap thong tin ma AGIP cid chi dinh la bac, mat va tat Ca cac ban copy cua Ching se dugc tra lai cho AGIP khi ket fink hop dOng nay e) NPP xac nhan rang tat ca cac thong tin ve cac san phdm dugc AGIP va cac cong ty con dm AGIP xac dinh la bi mat thuong mai ma NPP da nhan &roc hoac se 299

nhan dugc tir hop thing nay vgi AGIP hoac tir cac cong ty con cita AGIP hoac bang cach khac la chi sir dung vgi muc do can trong nhu trong viec bao ve ski* bi mat cila cac thOng tin thuong mai bi mat &la rieng minh va se yeu cau cac cam ket Wong ty tir phia nhan vien, ngued ban hang, cac diem ban hang va tieu thu san phdm cita minh va NPP se chiu trach nhiem ve viec tuan thU nhilng diet' nay; du sao cac nghia vu cita phan nay se khOng ap dung vgi cac tin tuc ma: i) Trugc khi chuyen chting cho NPP not chung da dugc quan chdng biet; hoac ii) Sau thOi diem chuyen cho NPP dugc moi ngtrOi bie't khOng phai do viec vi pham cua NPP ve nghia vu da minh theo muc nay; hoac iii) Do AGIP thOng bao cho cong chting; hoac iv) ThuOc quyen so hdu cua NPP dugi hinh thdc cluing tir trugc khi AGIP tiet 10 nhiing dieu nay cho NPP va NPP khOng lay truc tiep hoac gian tiep tir AGIP va dugc NPP gift khOng c6 trach nhiem gift bi mat dgi vgi AGIP hoac la bat ki mot ben this 3 nao khac; hoac v) Dtroc nhan do tin tugng tir mot ben thd 3 c6 quyen tiet 10 cac thong tin nay nguii ma NPP tren co s& tat ca cac thOng tin san c6 cUa minh cho rang ben thd 3 nay khOng nhan dugc cac thOng tin nay tir AGIP va khOng yeu cau nghia vu gi ve viec bao mat ve cac thong tin nay dgi vgi NPP 12. Tinh dnc lap ciia cac ben Cac ben cita hop Bong nay (long 9 rang NPP hoat dOng va se hoat Ong vi lgi ich &la minh va khOng dieu gi 0 trong hop thing nay la gianh cho hoac dugc hieu la cho phep NPP ma khOng c6 six clang y trugc bang van ban cua AGIP tao ra hoac ganh vac bat IcS, mot nghia vu hoac cac no thuOc bat ki dang nao nhan danh hoac thay mat cho AGIP hoac dtra ra bat ki hoac bao dam nao hoac trinh bay bat ki mot viec gi nhan danh hoac thay mat cho AGIP va hop dong nay se khOng dugc hieu la chi dinh NPP la dai 19 cho AGIP vgi bat ki muc dich gi hoac tao thanh mot quan he ban buOn giCra cac ben hop (long nay 13. Bat kha khong a) Trong trugng hop AGIP khong tiep tuc dugc viec san xuat thuong mai cac San Pharn do li do narn ngoai su dieu khien cita minh bao gom ca chang han bang cac vi du minh hoa (nhung khOng gidi han chi nhCrng dieu nay) chay, lut, n6, cac tac Ong cua thien nhien, thien tai, tai nan, Ong dat, dinh cong, be xtrOng hoac cac van de lao dOng khac hoac khOng mua dugc hoc thieu nguyen lieu thiet bi hoac van tai kh&i nghia n6i loan hoac clan bien, chien tranh, hanh dOng cUa ke UM, hanh dOng, lenh hoac yeu cau cUa bat ki chinh phit nao hoac do cac nguyen nhan khac 300

ma khOng the ltrOng trugc dugc mot cach hop 1i de tranh &rot thl AGIP se khOng chiu trach nhiem d6i vgi NPP ve bgt cfr thiet hai nao hoac cOng viec tuong to nay sinh. Sau do AGIP se c6 h6t sac minh de khOi phuc viec san xugt thuong mai va cac san phgm b) Trong trugng hop keo dai tinh trang bat kha khang trong su6t mot giai down dai trong d6 viec thuc hien cac nghia vu tuong fmg khOng the that hien &roc hop dong nay se dugc ket thdc khi c6 de nghi cua mot trong hai ben va hop deing nay se duqc xem nhu het hieu luc khi do: - Tgt ca cac khoan tien dia AGIP se dugc thanh toan ngay lap tut khOng khgu tar, khOng phai doi; va - NPP se ngUng phan ph6i cac San Phgm cua AGIP ngay lap tut. 14. Ket fink hop thing Hop dong nay se duqc IC6t fink: a) Vao ngay he't han; hoac b) Wu: i) Bgt ki mot the ltrc nao do chie'm him so' hiru tai san cita mot trong hai ben; hoac ii) MOt trong hai ben se khong tri duoc no, hoac iii) NPP se bi pha san hoac bi thanh li hoac to nguyen hoac bat buOc trir khi mot phan dm IC6 hoach cai tao hoac sat nhap trung thtrc duqc AGIP thOng qua hoac giai the c6 su thOng nhgt vgi chu no ve cac giai guy& hoac c6 mot ngtrgi tie'p nhan mot phin hoac town b0 tai san cUa minh dugc chi dinh; hoac iv) MOt ngtroi thtra IC6 duot chi dinh d6i vgi toan big hoac bgt ki big phan tai san hoac c6 nghia vu cam ke't nao hoac cac qua trInh khac se dugc tie'n hanh d6i vgi tai san cUa NPP; hoac v) NPP ngUng hoac de doa ngirng thtrc hien toan 1)0 hoac bgt ki mgt phan lan viec kinh doanh cUa minh ma khOng phai trong qua trinh cai tao lai hoac sat nhap &roc AGIP thong qua; hoac
vi) Neu NPP vi pham hoac &roc phep vi pham bgt ki mgt nghia vu nao cita minh trong hop (long nay va khOng sira chda viec vi pham do trong veng 14 ngay sau khi AGIP da dua ra thOng bao bang van ban; hoac

vii) Nat NPP pham toi hoac bi buOc toi hoac pham cac hanh dOng bgt hop Olaf, hoac da bi bugc tgi hoac cac hanh dOng bat hop phap khac; hoac 301

viii) N6u NPP tham gia vao bat ki c6ng vie'c gl anh htrOng den AGIP hoac cac cOng ty con cua AGIP hoac viec ban cac san phdm not chung Trong cac trikmg hop nhu vay AGIP co the thong boo bang van ban k6t tithe hop &Ong nay ma khOng anh hung deb cac quyen khac cua cac ben trong hop (long nay 15. Hi0 Ittc cua viec ke't thtic hop thing 1\16u hop dong nay kei thtic do bat ki mot li do nao Ara khOng anh huang den cac quyen khac: a) Tat Ca CAC khoan lien cua AGIP se cluoc thanh toan ngay lap tdc khOng khdu trir khOng phai doi b) NPP se ngimg phan ph6i Cac San Phdm cua AGIP ngay lap tdc c) AGIP se co the thy y minh co quyen coi cac don hang chua dugc thus hien do NPP dat va da duqc AGIP chap nhdn tilt& khi ket fink hop dOng nay la da &roc hu}', trix cac don hang ma trong dO NPP se xuat trinh cac bang chting, cluing tir thoa man cac yeu cdu cua AGIP trong yang 30 ngay ke tir ngay thOng boo ket thdc hop (long chimg minh rang NPP da cam kel hop phap cung cap bat ki Cac San Phdm nao da dat hang cho cac ben thd 3 tit& khi k6t thdc hop (long nay d) N'6u AGIP yeu cdu NPP sau do se tra lai cho" AGIP hoac tai cac dia diem khac ma AGIP co the chi dinh vai chi phi do AGIP chiu toan 1)0 cac hang hod hoac cac San Phdm thuOc ye AGIP trong soy hitu cua hoac chiu sty dieu khien cua AGIP va tat ca cac vat phdm quang cao khac lien quan den cac San Phdm chiu sir diet' khien cua AGIP; trong tru6ng hop khong thdc hien cac dieu tren AGIP se co quyen khOng can th6ng boo truck; den not dang de cac hang hoa va Cac San Phdm da not va lay CAC thd nay e) Tat ca cac san phdm van chua ban duoc ma theo kien cua ca hai ben AGIP va NPP la khOng dugc tot sau do se dtroc NPP xir Ii theo chi dao cua AGIP f) NPP se tra lai cho AGIP tat ca cac matt hang va cac vat phdm quang cao va cac tai lieu kSi thudt va cac ban copy cua nhiing thd nay sir dung trong quan he phan phoi g) NPP se tra lai cho AGIP tat ca cac ban g6c va tat ca cac ban copy dm tat ca cac chting tir va thOng tin dtrai bat ki dang nao co chda bang bat ki cach nao bat ki phan nao thuOc sC's hiru tri tue, cac chi tieu k y thuat va CAC an phdm h) Trong twang hop k6t thtic hop clang nay AGIP se c6 the chon mua lai tU NPP bat ki hoac tat ca cac san phdm mua cua AGIP va do NPP so( hiru vao ngay 302

NPP nhan &roc thong bao bang van ban Y dinh cua AGIP thuc hien viec mua lai theo diet' khoan nay; gia ca ma AGIP phai tra se IA gia ghi tren hod don thkrc to da dtroc NPP tra Ong vgi cac chi phi van tai &roc xac dinh do NPP tra; trong throng hop thuc hien viec chon mua lai cua AGIP, NPP se ngay lap t(rc giao cac san phdm cho AGIP phu hop vgi tat ca cac yeu cau luat phap ma c the can thiet cho chuyen quyen s6 hau dm hang hod cho AGIP mien ma khOng chiu bat ki phi cam giir nao hoac cac trg ngai nao; AGIP se thanh toan cho NPP cac san phdm nhu tray ngay sau khi NPP da thuc hien tat ca cac nghia vu cua minh theo hop (long nay i) NPP thira nhan va (long y rang ho se duoc bit dap toan 130 chi phi cho cac hoat dOng trong viec phat trien thi twang cho san phdm day ten tu6i va danh tieng cua san phdm va trong viec xay dung y liking tot cho san phdm bang doanh thu lay to viec ban lai cac san phdm trong th6i han hieu tut cua hop dong nay; do do khOng c quern hop nao viec ket thtic hop dong nay do bat ki li do gi se tao ra bat ki quyen hanh dOng nao cua NPP lay lai tien den bit phu them hoac cac khoan thiet hai to AGIP 16. KhOng canh tranh Trong th6i han hieu lkrc dm hop dOng nay NPP se khOng phan ph6i cac san pham to tham gia bang bat ki cach nao khac trkrc tiep hoac gian tiep vgi cac hang hod cc-) ban chat canh tranh vgi cac san phdm trong hoac ngoai Dia Hat ma khOng c sir clang y till& bang van ban cua AGIP 17. Chi dinh ngairi phan ph6i cap (Judi (NPPCD) a) NPP se c quyen chi dinh NPPCD va cac diem ban hang dkr tra va phan phoi cac San Phdm trong pham vi Dia hat thay mat cho NPP b) NPP cling se dam bao rang tat ca NPPCD va cac diem ban hang tai moi th6i diem se luOn luon ton trong va tuan thu cac diet' kien nhu qui dinh trong hop dong nay, nhang dieu ma ap dung cho ca nhirng ngugi nay nhu la cac NPP va NPP se chiu trach nhiem cho viec tuan thu theo cac diet! nay 18. KhOng khir6c tir Cac ben hien va &Ong Y rang viec khOng yeu cau hoc chain tre cua AGIP trong viec yeu cat thgc hien hoac tuan thu vgi bat ki dieu khoan nao cua NPP cua hop dOng nay se khong anh hugng den quyen cua AGIP yeu cau thuc hien hoac tuan aka da bi khugc tir bang van ban 19. Chuy61 nhugng Hop dong nay se rang buOc dgi \Tad cac ngirgi 1(6 tiep va ngugi thaa hugng cua moi ben trong hop dong nay; nhung vgi dieu kien rang hop dong nay se khOng dugc 303

NPP chuyen nhuong chuyen giao hoac ban toan be hoac met phan trir khi cac dieu khoan cita viec chuyen nhuong, chuyen giao hoac viec ban do dugc AGIP thong bao bang van ban 20. BAo lurt cac di6u khoin a) DU kgt tit& hop (long nay cac dieu khoan, cac bao dam cam kgt va cac bao lanh c6 trong va dugc dAn chigu den trong hop (long nay se tigp tuc ton tai va rang buec cac ben va moi chit the ve cac dieu tren hoac met phan cua cluing ma chua hoar' thanh hoac phai dugc thuc hien hoac can phai dugc giai guy& hoac nham de tao ra hieu luc dgi vai mei va tat ca cac diet' nay b) Cam ke't cita cac ben van ton tai va se duot xem xet nhu c6 hieu luc hoan toan cho du bat ki thay dei nao ve viec nom gill c6 phan va quyen phan phoi hoac cgu thanh cita AGIP c) Ngu bat ki met hoac met se diet' khoan trong hop (long nay hoac bat ki cac chang tir hoac Bien ban nao lien quan deb hop dOng nay se kh6ng c6 hieu luc, khOng c gia tri phap 11 del \lei bat ki mat nao, theo 141 ap dung hieu luc tinh hop phap va tinh kha thi cita cac dieu khoan hoac met phan cita cac dieu khoan nay van se kh6ng bi anh hueng bang bat cu cach nao 21. Trong tai Tgt Ca cac tranh chgp nay sinh lien quan deb hop (long nay cuCii cling se cluoc giai quygt theo cac qui dinh cita lust trong tai Singapore va bgt ki sira del nao &la lust nay trong arng then ki; cac thit tuc t6 tung se &roc tign hanh tai Singapore; Luat Singapore se dugc dp dung 22. Hqp thing tong the a) Hop clang nay the hien toan be cac cam kgt cita cac ben, x6a be va thay the bgt ki cac cam kel viec trinh bay su hieu bigt hoac cac diet' ngdm hieu nao b) Bgt ki sira dei nao cita hop dong nay phai dugc lam bang van ban va &roc dai dien &roc phep cita AGIP va NPP ki; kh6ng c6 met thay dei nao c hieu ltrc bang cach xac nhan hoac chap nhan cac don hang, h6a don, cac matt hueng dAn giri hang hoc cac cluing to tuong to khac cita AGIP c cac dieu khoan khac vet hoac b6 sung vao cac diet.' qui dinh trong hop (long nay trir khi cac xac nhan hoac chap nhan do qui dinh re rang rang no la de sira dei hop (long nay 23. GiAi thIch a) Bat ki viec din chigu nao den bat ki ben nao trong hop (rang nay bao gom ca nguei duet chuyen nhuong va/hoac nguei kg tigp quyen hau va/hoac dai dien ca nhan
3C4

b) Cac tir c6 nghia s6 it bao gom ca s6 nhieu va ngtioc lai c) Cac tir gi6ng cai bao g6m ca gi6ng duc va gi6ng chung va ngiroc lai d) Ca nhan bao ggm ca cong ty va nguoc lai e) Cac tieu de ca cac dieu khoan trong hop (long nay chi dd cte clang trong dan chielt va khOng anh huang den viec hidu cac (lieu khoan cika hop dong nay 24. ThOng bao 13St ki thong bao nao yeu cdu duqc giai quye't theo hop dong nay se dtroc th6ng bao ddy du neu dugc chuydn bang buru dien c6 bao dam dien tin telex hoac telegraph den dia chi tren phdn cldu hop dong nay hoac cac dia chi khdc nhu c6 thd da th6ng bdo bang van ban cho ben kia dd cho muc dich nay 25. Thuc hien Hop (long nay c6 thd dtroc thuc hien bSt ki mOt phan nao; bat ki phdn nao hoac s6 phan nao dugc thuc hien theo mgt trong hai trugng hop tren bai cac ben cila hop dong nay se tao thanh hop dong ddy du va toan bO cho tat ca cac muc dich.

DA 1(1' BoI Thay mat cho AGIP

DA KY BOI Thay mat cho NPP

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6. JOINT VENTURE CONTRACT 6.1. The English version of the contract

JOINT VENTURE CONTRACT


Based on:

- The Law on Foreign Investment in Vietnam approved by the National Assembly of the Socialist Republic of Vietnam on December 29 th , 1987, - The Decree 29/HDBT on February 6 th , 1991 of the Council of Ministers regulating in detail the implementation of the Law on Foreign Investment in Vietnam
Today, 1' December, 19 ... the Parties have agreed to sign this contract to establish a Joint Venture Company ("JVC") on the terms and conditions as follows: Article 1: NAMES OF THE PARTIES TO THE JOINT VENTURE VIETNAMESE PARTNER (PARTY A): DEPARTMENT OF HOME TRADE HANOI Head office at 10 Le Lai Street, Hanoi Socialist Republic of Vietnam Tel: 252578 Fax: (84) 2 -54592 Represented by: MR. DUONG DINH - Director FOREIGN PARTNER (PARTY B): IMEXPAN - PACIFIC INC A Company registered and incorporated in the Republic of the Philippines with head office: Ground floor, Corinthian Plaza, Pasea de Roxas, Legaspi Village, Makati, Manila, Philippines Tel: 8104391-94, Tlx: 65714 PHLMPXPN, Fax: 632-810-10-10 Represented by: Mr. JOHNATHAN H. NGUYEN - President Article 2: NAME, HEAD OFFICE, OBJECTIVE OF JVC The JOINT VENTURE COMPANY shall be named as: - International Name: Hanoi General Commercial Centre

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- Head Office:

Hang Bai Street corner Trang Tien Street Hanoi, Socialist Republic of Vietnam

The JOINT VENTURE COMPANY shall be a limited company granted the status of a juridical person subject to Vietnam laws, stipulated in the Joint Venture Contract and Charter of the Joint Venture. - Main objectives of the Joint Venture Company Building and operating 4 Star Hotel, and Business Centre of international standards to be located at Hang Bai Street on the corner of Trang Tien Street, Hanoi, Socialist Republic of Vietnam: - The Joint Venture Commercial Centre after completion will have the following facilities: 1. 4 Star Hotel 2. Business Centre with office space for rental in accordance with International Standards 3. Restaurants, Bars, Discos, Function Rooms, food and beverage facilities and other Hotel related facilities for tourist services Article 3: INVESTED AND LEGAL CAPITAL - CAPITAL CONTRIBUTION INCREASE AND TRANSFER Project cost: Legal capital: USDxx,000,000.00 (xx million US Dollars) US$xx,000,000.00 and contributed by the two Parties as follows: US$ X,500,000.00 by party A (30%) US$ xx,500,000.00 by party B (70%)

- Loan:

US$ xx,000,000.00 to be borrowed from any financial institution and arranged by Party B for the Joint Venture; terms and conditions of the loan will be mutually agreed on by both parties

The juridical responsibilities of each party for the third party are within its contributed capital All legal capital will be contributed in a lump sum or installments at 307

appropriate periods agreed on by both parties and the State Committee for Cooperation and Investment If either of the two parties does not follow the Schedule of Capital Contribution, that party shall have to inform the other party within 90 days before and shall be responsible for any losses caused by the such failure CAPITAL CONTRIBUTION The capital contributed by Party "A" shall be US$ x,500,000.00 comprising of: - Land rental for xx years - Fees for the retirement and relocation of present employees - Fees for clearing the construction area The capital contributed by party B shall be US$ xx,500,000.00 comprising of architectural design, materials, equipment, working capital and other expenses. CAPITAL INCREASE On the basis of the needs of development during the operation, the Joint Venture Capital can increase its legal capital in the following forms - Reinvesting the profit share of each party - Contributing new capital The increase of the legal shall be agreed by both parties and be approved by the State Committee for Co-operation and Investment CAPITAL TRANSFER During operation, either party can transfer its capital contribution to the other party or the third party approved by the State Committee for Co-operation and Investment
Article 4: DURATION OF THE CONTRACT

The stipulated duration of this contract is xx years from the official date of establishment of the Joint Venture and can be extended by the agreement of the Parties hereto together with and subject to the approval of the State Committee for Co-operation and Investment
Article 5: RESPONSIBILITIES OF EACH PARTY

PARTY A'S RESPONSIBILITIES 1. To contribute its capital (as stipulated in Article 3 of this contract). 2. To complete the application formalities to obtain the investment license 308

and other necessary permits for the establishment of the Joint Venture Company 3. To obtain all necessary permits for Party B's personnel to stay and work in Vietnam 4. To take part in controlling in the Joint Venture 5. To do all necessary tasks to facilitate the operation of the Joint Venture PARTY B'S RESPONSIBILITIES 1. To contribute its capital (as stipulated in Article 3 of this contract). 2. To take part in controlling the Joint Venture 3. To provide its know-how and management experience to the Joint Venture 4. To advise on and supply the technical data for machinery necessary equipment and materials for the Joint venture so that party A can study their use and supply for an import quota when necessary 5. To study markets and imported commodities such as machinery, equipment, materials, accessories, etc., through its Head Office and/or Branches 6. To provide Party A with lists and prices of commodities which are not available in Vietnam 7. To ensure capital for building the foundation of the Hotel and Business Centre. 8. To ensure the availabilities of the working capital to make the business profitable 9. To market the Hotel and Business Centre and use its best endeavours to attract and bring in foreign tourists to patronise the Hotel Business Centre MUTUAL OBLIGATIONS 1. On the basis of labour contracts, the Joint Venture Company shall employ, appoint, terminate and supervise the Board of Directors in their employing, appointing, terminating, and supervising other personnel of the Joint Venture 2. Salaries and subsidies of all personnel of the Joint Venture shall be paid by the Joint Venture Company 309

3. Salaries and subsidies for foreign personnel shall be paid in foreign currency 4. To further the best interests of the Joint Venture, both parties can request the Board of Management to change or replace personnel. Any change or replacement shall not be implemented without proper reasons 5. Citizens of Vietnam have priority to be recruited to work for the Joint Venture. The Joint Venture can employ foreign experts for work requiring highly technical skills which cannot be done by the Vietnamese citizens 6. Any interest and obligation of Vietnamese personnel working for the Joint Venture shall be ensured by their labour contracts in accordance with Vietnam labour Regulations for enterprises with Foreign Capital 7. Salaries and other subsidies for Vietnamese personnel shall be paid in Vietnamese Dong currency 8. During operation of the Joint Venture the Board of Directors shall organize regular training programs for Vietnamese personnel of the Joint Venture 9. The Board of Directors, during the operation of the Joint Venture shall arrange the schedule of training and visits for Vietnamese managers working for the Joint Venture 10. Both parties shall inform each other of all their major policies which affect the Joint Venture Article 6: CONTROL AND MANAGEMENT The Head of the Company shall be its Board of Management consisting of 9 (nine) members appointed as follows: - Party "A" shall appoint 3 (three) members - Party "B" shall appoint 6 (six) members The powers, duties, activities, and terms of this Board of Management shall be stipulated in the Charter of the Joint Venture BOARD OF DIRECTORS The Board of Directors of the Joint Venture Company shall be appointed by the Board of Management on the basis of the agreement between the two parties The first Board of Directors for the initial period lasting 5 years of the Joint Venture shall be appointed as follows: 310

- General Director and Vice General Director of Finance: - Managing Director and Chief Accountant: By Party B By Party A

Article 7: FISCAL YEAR


The fiscal year of the Joint Venture shall commence on January 1s t and terminate on December 31s t of the same year The first fiscal year shall commence from the official date of establishment to the December 31st of the same year

Article 8: PRINCIPLES OF ACCOUNTING


The Joint Venture Company shall implement its accounting system on the basis of Vietnamese Accounting principles and standards and be checked by Vietnamese Financial Organization (as stated in Article 18 of Law on Foreign Investment in Vietnam as aforesaid)

Article 9: YEARLY ACCOUNTING REVIEW


Every year, the Joint Venture shall be responsible for its accounting review in conformity with regulations of the Vietnam Government. Documents of the yearly accounting review must be submitted to the relevant authorized organization after approval by the Board of Management

Article 10: INSURANCE


Both parties agree to choose a Vietnamese insurance company to insure the assets of the Joint Venture

Article 11:PROFIT - PROFIT SHARING- ESTABLISHMENT FUNDS


The Joint Venture and its foreign partner shall be liable to fulfill their financial obligations to the Vietnam Government as stipulated in the Investment License issued by the State Committee for Co-operation and Investment After fulfilling all its financial obligations to the Vietnamese Government, the Joint Venture shall use 5% of its profit to set up a reserve fund. Other funds shall be established in conformity with Vietnamese Laws The reserve fund shall be limited to not more than 25% of the legal capital in accordance with Article 30 of the Law on Foreign Investment; the Board of Directors shall decide the profit share of both parties as follows: Profit sharing for the initial xx years of the Jci, t - Venture - Party A: - Party B: 30% 70% 311

The profit sharing of both parties shall be as follows: After xx years Party A: Party B: 35% 65% after xx years 40% 60% after xx years 50% 50%

Party B can remit the following abroad: - Profit from the business - Receipts from supplying services and technology transfers - Money from loans and interest of the said loans - Money and other assets officially belonging to Party B Foreign personnel working for the Joint Venture can remit their legal income after returning their income tax in conformity with regulations on foreign exchange control of Vietnam. During operation of the Joint Venture losses of the Joint Venture in any fiscal year shall be compensated by profits in following years but this s}-all no longer be valid after five years as stipulated in Article 27 of the law on Foreign Investment

Article 12: EXPENSE FOR ESTABLISHMENT OF THE JOINTVENTURE


All expense concerned with the establishment of each partner shall be included in the investment cost of the Joint Venture Company

Article 13: OFFICIAL OPERATING DATE


The Joint Venture shall be officially established when the State Committee for Co-operation and Investment approves and issues the Investment license

Article 14: DISSOLUTION - BANKRUPCY - FORCE MAJEURE


The Joint Venture can be dissolved before the termination of the contract in the following cases: - Both parties agree and suggest the dissolution to be passed by the Board of Management - The Joint Venture is juridically appraised as a bankrupt company - One of the two parties does not want to continue as a Party in the Joint Venture and wants to transfer its contributed capital without agreement of the other party but the State Committee for Cooperation and Investment permits the dissolution Formalities of bankruptcy declaration shall be carried out in conformity with appropriate international regulations agreed by the two parties 312

In case of observance of Vietnamese laws and regulations on bankruptcy declaration, both parties agree to refer this to Vietnam Economic Arbitration or other juridical organization in accordance with the Law on Foreign Investment In case of Force Majeure such as earthquake, storm, flood, fire war, or any other unforeseen disaster which has occurred beyond the control of any party, that party shall be discharged of its related commitments in this contract provided: - The Force Majeure is the proximate cause which obstructs or delays the execution of the contract - That each party has tried all possible measures to overcome such occurrences - That each party shall immediately, after such occurrence, inform the other party of the same and within 20 days, send the other party a written notice indicating the measures undertaken and the cause which prevents the execution of the contract duly confirmed by the relevant authorities at the place where the disaster occurs Article 15: LIQUIDATION In case of liquidation as stated in Article 14 of this contract, the Board of Management shall appoint a committee to execute the liquidation During liquidation, the assets of the company shall first be used to pay for worker's salaries, unpaid taxes, due debts, and liquidation expenses, the other assets shall be shared by the two parties according to their rate of capital contribution (both for profits and losses) The Name of activities of the Liquidation Commission shall be stated in details in the Charter of the Joint Venture Company In case of bankruptcy as stated in Article 14 of this contract, the liquidation shall be executed in conformity with Article 19 of Law on Foreign Investment Article 16: DISPUTE Upon the approval of the State Committee for Co-operation and Investment, the Joint Venture Contract shall become a juridical document which shall be respected by both parties Any one-sided contractual termination is not valid Any dispute between the two parties arising from the execution of this Joint Venture Contract shall first be resolved through mutual consultations and amicable settlement proceedings. If, however, the two parties fail to reach an agreement, the dispute shall be referred to the Singapore Economic Arbitration 313

All matters that are not provided for in this Contract but are necessary for the carrying out of the objectives of the Joint Venture Company will be carried out by each party in accordance with the Charter of the Joint Venture Company or the applicable Investment Law and Implementing Decree This contract is made in 10 copies in English and Vietnamese and comes into effects on the date of issuance of the Investment License, Signed on 20
FOR THE VIETNAMESE PARTY: FOR FOREIGN PARTY DEPARTMENT FO HOME TRADE HANOI IMEXPAN-PACIFIC INCORPORATED
DUONG DINH

DIRECTOR

JOHNNATHAN H. NGUYEN

PRESIDENT

314

6.2. The Vietnamese vesion of the contract


HOP WING LIEN DOANH
Can cd:
- Ludt Ddu tu' nuor ngoai tai Viet Nam du'c'c Quoc hOi tut& CHXHCN Viet Nam thOng qua ngdy 2911211987 o - Nght dinh 28/HDBT ngdy 6/2/1991 ctia HOi d" ng BO tracing quy dinh chi tiet thtfc hien Luqt dqu to nunc ngodi tai Viet Nam

Horn nay, ngay ... 1992, cac ben thea thuan 14 hop dong lien doanh thanh lap cong ty Lien doanh (JVC) vai cac (lieu khoan va dieu kieri nhu sau:

Dieu 1: Ten dm cac ben tham gia lien doanh


BEN VIET NAM (BEN A) So Thuong nghiep Ha Nei Tru sO: 10-Le Lai- Ha Nei, Viet Nam DT: 252578, Fax: (84)2-54952 Dai dien: Ong Duong Dinh - Giarn d6c BEN NI5OC NGOAI (BEN B) Imex Pan-Pacific INC. (Cong ty clang ky & Cong hoa Philipines) Tru so': Groundfloor, Covinthia Plaza, Paseo de Roxas, Lezespi Village, Makati, Malita Philipines. DT: 8104391-94, Telex: 65714 PHLMPX PN, Fax: 632810-10-10 Dai dien: Ong Johnathan H. Nguyen - Chu tich

Dieu 2: Ten, tru sa, muc dich cua Ong ty lien doanh
Cong ty Lien doanh duoc goi ten nhu sau: - Ten giao dich qu6c tO: Trung tam Throng mai T6ng hop HA Nei (trung tarn). - Try se chinh: Goc nga tu Hang Bai, Trang Tien - Ha Nei CHXHCN Viet Nam COng ty Lien doanh se la met cong ty trach nhiem him han ce tu cach phap nhan va hoat deng theo phap luat Viet Nam, va cac dieu khoan diroc quy dinh trong Hop clang Lien doanh nay va trong diet' le cua Trung tam - Muc tieu cua Cong ty Lien doanh Xay dung va dieu hanh met khach san 4 sao, met Trung tam Thuong mai dat tieu

chudn quOc te' tren phO Hang Bai, tai goc nga tu Trang Tien, Hang Bai, Ha Nei Viet Nam

315

- Trung tam sau khi xay dung.xong se bao - 1 khach san 4 sao - 1 Trung tam Thuong mai c6 cac van phOng cho thue dat tieu chudn qu6c to - Nha hang, quay rtrou, quay giai khat, san nhdy, cac phong chdc nang, cac dich vu an ugng va cac dich vu khac clanh cho khach du Lich

Di6u 3: V6n dau ttr, v6n phap dinh, g6p v6n, tang von va chuye'n nhurcmg v6n
- T6ng s6 v6n dau tu: 30 trieu USD - Vgn phap dinh: xx trieu USD va do hai ben (long g6p nhu sau: Ben A: xx trieu USD = 30% Ben B: xx trieu USD = 70% - Von vay: 15 trieu USD se dugc ben B thu xep vay fir cac t6 chdc tai chinh khac de dau to vao Trung tam; cac diet' lcien vay niacin phai dugc su thoa thugn cua ca hai ben Trach nhiem phap ly cua moi ben dgi vgi ben thir ba dugc gigi han theo s6 von dong gop Tat ca s6 von phap dinh se &roc Op 1 lan hoac nhieu lan theo tie'n dO dd dugc ca hai ben va Uy ban Nha nugc ve Hop tac va Ddu tu thee thuan Nairrigt trong hai ben khong dam bao gOp von theo tie'n clg, ben do phai thong bao trugc cho ben kia trong yang 90 ngay va phai chiu trach nhiem ye bat cu ton that nao gay nen bgi su cham tre do Hong Op Khoan von do ben A Op la 4,5 trieu USD dugc xac dinh bao - Tien thue dat trong 50 nam - Chi phi tro cap va b6 tri cOng viec cho nhiing lao &Ong hien nay - Chi phi giai phong mat bang xay dung Khoan von do ben B dong Op la 10,5 trieu USD bao Cac chi phi thi& ke" ky thu4t, my thuat, nguyen vat lieu xay dung, thi& bi, von luu Ong va cac chi phi khac Tang von: Tren w s& nhu tau phat tridn trong thOi gian hoat Ong C6ng ty Lien doanh CO thd tang v6n phap dinh &rad cac hinh that: 316

- Tdi ddu to phdn lgi nhudn cua moi ben - Dong gop von mai - Viec tang von phdp dinh phai dugc ca hai ben thea thudn va y ban Nha nude ve Hop tdc va Ddu to phe duyet

Dieu 4: TWA hieu dm hop doing


Thei hieu hop clang dugc qui dinh la 50 ndm ke tir ngay thanh ldp chinh thdc va c the dugc keo dai theo thoa thudn cua ca hai ben va phai dugc US/ ban Hgp tdc va Ddu to phe duyet Dien 5: Trdch nhiem ctia cac ben

Ben A:
1. Ding gop phdn von dm minh (nlnr quy dinh & diem 3). 2. Hoan thanh cac tai lieu can thief de xin gidy phep ddu to va cac gig)/ phep khdc lien quan den viec thanh lap cOng ty Lien doanh 3. Lam cac thu tuc can thiel cho phep ngtrgi dm ben B cu trti va lam viec tai Viet Nam 4. Tham gia vao dieu hanh Lien doanh 5. Thkrc hien cac trach nhiem can thief de dua Lien doanh vao hot doing

Ben B:
1. Dong gop phdn von am mirth (nhtr quy dinh & diem 3). 2. Tham gia dieu hanh Lien doanh 3. Cung cdpb1 quye't, kinh nghiem quan ly cho Lien doanh 4. ThOng bdo va cung cap ddy dU cac tai lieu, s6 lieu k y thudt can thie't ve may moc, thie't bi, nguyen vat lieu can thiel cho Lien doanh de ben A co the nghien cdu sir dung va xin phep han ngach nhap khdu khi can 5. Nghien ctIu thi trugng va hang hod nhdp khdu nhu may moc, thief bi, nguyen vat lieu, phu kien ... qua Tru s& chinh hoc ca cac chi nhanh 6. Cung cap cho ben A danh muc va gia ca nhilng hang hod khOng CO Cr Viet Nam 7. Dam bao dit von cho viec xay dung khdch sari va Trung tam Thuung mai 8. Dam bao von ltru doing de kinh doanh co hieu qua 9. Kinh doanh khdch san va Trung tam Thuung mai, sir dung c hieu qua de thu but khdch du lich ntroc ngodi de'n Trung tam thuung mai khdch sat) 317

Trcich nhiem chung:

1. Tren co s6 hop &Ong lao deng, Lien doanh tuyen dung, bdu, bai mien, giam sat Ban Giam dOc va nhan vien trong cac c6ng viec cila ho va giam sat cac thanh vien khac cita Lien doanh 2. Tien luting va phu cap cua tat ca thanh vien trong Lien doanh dugc Lien doanh tra 3. Tien luting va phu cap cua nhan vien la ngtred nu& ngoai se duqc tra bang ngoai to 4. VI lgi ich cUa Lien doanh, hai ben c6 the yeu cL Hoi dOng quan tri thay d6i nhan sty; bdt cu su thay d6i nao deu phai &roc thtrc hien khi c617 do hop IS, 5. COng dan Viet Nam duqc uu tien tuy6r1 chon vao lam viec trong Lien doanh; Lien doanh c6 the thue chuyen gia nuarc ngoai cho cac cOng viec yeu cdu ky Wang ky thuat cao ma cac cOng dan Viet Nam khong the dam nhan &roc 6. Bdt cu quyen loi va nghia vu nao cua ngtrad Viet Nam lam cho Lien doanh den duot dam bao bang hop (long lao dOng phit hop vai phap lenh ve lao deng cita Viet Nam d6i vad cac xi nghiep c6 nguon von nu& ngoai 7. Tien luting va phu cap cna nhan vien Viet Nam duoc tra bang (long Viet Nam 8. Trong th6i gian hoat Ong Ban Giam d6c Lien doanh se t6 chdc chuong trinh dao tao thu6ng xuyen cho nhan vien Viet Nam lam viec cho Lien doanh 9. Trong th6i gian hoat Ong Ban Giam d6c Lien doanh se t6 chtic chuong trinh dao tao va t6 chdc cac chuyen di tham quan cho cac giam d6c ngu6i Viet Nam lam viec cho Lien doanh 10. Hai ben se th6ng bao cho nhau cac chinh sach lon lien quan d6n Lien doanh Dieu 6: Quin tri di6u hanh lien doanh Ing ddu Lien doanh la HO (long Tian tri Om 9 thanh vien duoc chi dinh nhu sau: - Ben A se chi dinh 3 thanh vien
- Ben B se chi dinh 6 thanh vien

Quyen han, trach nhiem hoat Ong va nhiem kS/ cua HOi &rig quart tri se &roc qui dinh trong Dieu 10 cua Lien doanh
Ban gicim chic:

HOi clorig quart tri se chi dinh Ban giam doc tren co s6 them thuan cua hai ben Ban giam d6c cila Lien doanh trong nhiem kSr dau tien trong 5 nam se dtroc chi dinh nhu sau: 318

- 'Ring giam dgc va Pho giam dgc phu trach tai chinh: do ben B cir - Giam doe dieu hanh va ke toan trugng: do ben A cir

Dieu 7: Nam tai chinh


Nam tai chinh cita Lien doanh bat dau tinh to 1/1 va ket thdc vao 31/12 ding nam Nam tai chinh dau tien tinh ti' ngay chinh th(rc dugc thanh lap tgi ngay 31/12 cung nam

Dieu 8: Nguyen tac ke" loan


Lien doanh se zip dung he thong 1(6 toan tren nguyen tac va tieu chuan ke toan Viet Nam va dugc Om sat bgi to chirc tai chinh Viet Nam (nhu neu trong dieu 18 Luat Dau to nugc ngoai)

Dieu 9: Bao cao ke toan hang nam


Hang nam Lien doanh c6 nghia vu bao cao 1(6 toan phu hop vgi cac quy dinh cita Chinh phU Viet Nam; Bao cao ke" toan hang nam phai dugc de trinh len w quan c6 tharn quyen sau khi dugc HOi (long quart tri phe duyet

Dieu 10: Bao hiem


Hai ben thga thuan chon COng ty Bao hiem Viet Nam bao hiem cho tai san cita Lien doanh

Dieu 11: Loi nhuan - Phan chia loi nhuan - Lap quy
Lien doanh va ben nugc ngoai phai san sang thuc hien cac nghia vu tai chinh dgi vgi co quan CSC dia. Chinh phit Viet Nam nhu quy dinh trong Gia'y phep dau to do US', ban Nha nugc ve Hop tac va Dau to cap Sau khi hoan thanh tat ca cac nghia vu tai chinh vgi Chinh phi). Viet Nam Lien doanh se sir dung 5% lgi nhuan de lap quy du cac guy khac se dugc lap phi' hop vai Luat Viet Nam QuSi du tra dugc han the dugi 25% von phap dinh theo dieu 30 Luat Dau Ban Giarn doc se quye't dinh phan chia lgi nhuan theo ty le sau: Trong xx nam dau: Ben A: 30%; Ben B: 70% Sau xx nam: Ben A: 35%; Ben B: 65% Sau xx nam: Ben A: 40%; Ben B: 60% Sau xx nam: Ben A: 50%; Ben B: 50% Ben B c6 the chuyen nhang khoan sau ra nugc ngoai: - Lai nhuan to kinh doanh - Tien lai do cung cap dich vu va chuyen giao ky thuat 319

- Tien vay va lgi tuc tien vay - Tien va tai san chinh thtic thu6c ve ben B Ngtr6i nu6c ngoai lam viec cho Lien doanh c6 the chuyen thu nhap hop phap cua ho ra ntrac ngoai sau khi nop thue thu nhap va phit hap voi cac quy dinh quan 17 ngoai hoi cua Viet Nam; trong th6i gian hoat dOng, thua 16, t6n that cua Lien doanh se dugc bit lai bang lgi nhuan cua nhung nam tiep theo nhung kh6ng keo dai qua 5 nam nhu quy dinh tai Dieu 27 Luat Dau tu nu6c ngoai

Dieu 12: Chi phi thanh lap Lien doanh


Tat ca cac chi phi lien quan den viec thanh lap Lien doanh cua m6i ben se dugc tinh vao chi phi dau tu cua Lien doanh

Dieu 13: Ngay hoat dong chinh thtic


Lien doanh se chinh fink dugc thanh lap khi nao 14 ban Nha nuqc ve Hap tac va Dau tu phe chudn va cap Giay phep dau to

Dieu 14: Giai the - Pha san - Bat kha khang


Lien doanh c6 the giai the tru6c khi het han hgp dong trong cac tru6ng hgp sau: - Hai ben thoa thuan va chap nhan de nghi giai the do HO (long quan tri dua ra - Ve mat luat phap Lien doanh se duac coi nhu mot cOng ty pha san - MOt trong hai ben kitting mu6n tiep tuc lien doanh va muon chuyen nhugng phan von thing g6p, kh6ng dugc ben kia dong y nhung dugc Uj7 ban ve Hap tac va Dau tu cho phep giai the ThU tuc tuyen b6 pha san duqc tie'n hanh phu hap voi cac quy tac quoc te dugc ca hai ben thoa thuan; trong truong hop theo Luat Viet Nam va cac qui vac ve tuyen b6 pha san, ca hai ben thoa thuan dua van de ra Hoi (long Trong tai kinh te Viet Nam hoac ca quan Luat phap khac phit hgp voi Luat Dau tu; trong khi co Bat kha khang nhu Ong dot, lut, chay, chitin tranh va cac tai hoa khac khOng 1u6ng truck dugc, xay ra ngoai su kiem soar cua cac ben, ben gap Bat kha khang se dugc mien trach nhiem d6i voi viec thuc hien cam ket voi dieu kien la: - Bat kha khang la nguyen nhan chinh can no hoac lam cham tre viec thuc hien hop dong - Ben gap Bat kha khang da co gang ap dung moi bien phap co the de khac phuc Bat kha khang - Ben gap Bat kha khang phai thOng boo ngay lap tdc cho ben kia bang van ban trong vOng 20 ngay sau khi su kien xay ra va neu r6 cac bien phap cla Ai) dung va nguyen nhan can tra viec thuc hien hap &Mg dugc xac nhan kip thai cua ca quan c6 thdrn quyen tai nai xay ra sir kien

320

Dieu 15: Thanh 1ST tai san Khi phai thanh ly tai san nhu not trong Dieu 14 cila Hop thing nay HO dong quark tri se chi dinh mot 1.1Y ban thanh ly tai san Khi thanh ly, tai san cua c6ng ty tru6c het duoc dung de tra Wong cho nhan vien, tra thu6 chua nop, no de'n han va chi phi thanh ly; nhung tai san khac se duoc chia cho hai ben theo ty le g6p von (ke 616 va lai) Hinh thdc hoat Ong cua UY ban thanh ly se duoc neu chi tier trong Dieu le dm Lien doanh Trong tru6ng hop pha san nhu neu tren trong dieu 14 dm Hop dong nay, viec thanh ly duqc tie'n hanh chieu theo Dieu 19 - Luat Dau tu nu6c ngoai Dieu 16: Tranh chip Theo pile duyet cua UY ban Nha ntrac ve Hop tac va Dau to Hop dong lien doanh se tra thanh mot van ban phap ly ma ca 2 ben phai ton trong Viec don phuong huY 1)6 Hop dong kh6ng c6 gia tri; moi tranh chgp phat sinh trong qua trinh thuc hien hop ail-1g nay truot fien se giai quy& th6ng qua thtrong Wong giaa 2 ben; neu ea hai ben khOng di den thoa thuan, vu tranh chgp se duoc giai guy& b6i Trong tai kinh t6 Singapore Nhang dieu khOng duoc qui dinh trong hop (long nay nhung can thiel cho viec dat dugc muc dich dm Lien doanh se duoc moi ben thkrc hien pha hop voi Dieu le ciia Lien doanh hoac Nghi dinh dp dung Luat Dau tu Hop di:31-1g nay duoc lam thanh 10 ban bang tieng Anh va tieng Viet va c6 hieu luc Ice to ngay cap Gigy phep dau tu. KY ngay

BEN VIET NAM Ong Dtrong Dinh Linh Giarn dCic

BEN NUOC NGOAI Ong Jonathan H. Nguyen ChU tich

321

7. SALES AND PURCHASE CONTRACT 7.1. The English version of the contract

Contract No. APRO-02MV-117


Date: November 8. 2002

Between: HONG BANG SHIP BUILDING INDUSTRY & CONSTRUCTION CO. (VISDEMCO) No. 1, Hanoi Street, Haiphong City, Vietnam Tel: 84-31-525282 Fax: 84-31-525273 Represented by: Mr. Tong Van Manh - Director Hereinafter called the Buyer

And:

A-PRO CORPORATION Add: 12F 1216-1, Huyndai 41 Tower, 917-9, Mokdong, Yangcheonku. Seoul, Korea Tel: 0082-2-764-7811 Fax: 0082-2-764-7813 Account: 327-JSD-10620-6 at KOREA EXCHANGE BANK, SEOUL Represented by: Mr. Jai Gyu-Kweon- President Hereinafter clled the Seller

This contract was made in VIETNAM and entered into on this November 8.2002 by between APRO METAL CORP., organized and existing under the law of KOREA (hereinafter referred to as "The SEller") & HONG BANG SHIP BUILDING INDUSTRY & CONSTRUCTION CO. (VISDEMCO). organized and existing under the law of Vietnam (here in after referred to as "The Buyer") WITNESSES Whereas, "Seller" sells the products (to be hereinafter defined), and Whereas, "Buyer" buys the products which shall be specified in the ADDENDUM 1 Now therefore, in consideration of mutual convenient herein contained, the paties agree as follows:
322

Article 1. Commodity, Specification, Quantity, Price, Amount & Consignee The products shall be specified in the addendum showing commodities, price, quantity and specification which constitute an integral part of this contract The consignee appointed by buyer is HONGBANG SHIP BUILDING INDUSTRY & CONSTRUCTION CO. (VISDEMCO) Article 2. Terms of payment BENEFICIARY: A-PRO METAL CORPORATION 12F 1216-1 Huyndai 41 Tower, 917-9 Mokdong Yangchongu. Seoul, KOREA TEL: (82) 2-764-7811 FAX: (82) 2-764-7813 ADVISNG BANK: KOREA EXCHANGE BANK MOKDONG BRANCH 905-20, Mokdong, Yangchun-ku, Seoul 158-055, KOREA SWIFT KEY: KOEX KRSE 2.1 The L/C shall be payable at the country of benerficiary against the following shipping documents Documents required for negotiation + Full set of original Clean on Board Bill of Lading marked "Freight Prepaid" made out to the order of the issuing bank and notifying the applicant + 3/3 signed Commercial Invoice based on net weight issued by the Seller in triplicate 01 Orginal & 02 copies Certificate of Orgin issued by Japanese Chamber of Comerce and Industry

+ 3/3 Detailed packing list showing net/gross weight in total and total pcs + 01 orginal or 01 copy of Certificate of quantity, issued by NKKK at the loading port A copy of fax message advising the applicant and issuing bank of shipment particulars within 03 days after shipment, including vessel ETD, ETA, net and gross weight, B/L number and date, commodity, total amount, name, nationality and age of vessel, shipping agent in Haiphong, invoice value and L/C number

323

+ Beneficiary's certificate certifying that 01 set of non-negotiable documents has been sent derectly to applicant by express courier within 05 days after shipment date Note: + L/C must be opened within 03 working days after signing the contract + Third party documents are accepted + Charter party B/L acceptable + All banking charges outside Vietnam are for the seller's account and all banking charges inside Vietnam are for the buyer's account. Charges for attend, if any, are for account of party who request unless L/C is not opened in accordance with this contract Article 3. Shipment 3-1. Destination in Haiphong port, Viet Nam 3-2. Partial shipments are not allowed 3-3. Transhipments are not allowed 3-4. Loading on board from any Japanse Port 3-5. Lates date of shipment: December 15, 2002 3-6. Buyer shall arrange a crane at discharging port Article 4. Within 95 working days after completion of loading of the goods Seller shall provide the Buyer and consigmee appointed by the Buyer with notice of shipment by fax Article 5. Force Majeure In the event that the performance of this contract is prevented or delayed, in whole or in part by war, revolution, riot, strike or other labor dispute, fire, flood, typhoon or any other causes beyond the control of the parties hereto, then the parties shall not be liable for any default in the performance of all or any part of this contract, provided that immediate notice of said delay shall perform such obligations with all obligations with all due speed unless the contract is previously terminated Article 6. Insurance T' e Buyer will buy Insurance covering shortage risk. The inspection agency will be appointed by Insurance company
.

324

Article 7. Inspection: The Buyer can invite SGS to inspect the Specification of cargo. If any claim for Specification, SGS's survey report on type should be final Inspection fee will be borne by the Buyer Article 8. Arbitration In case of disputes and the parties can not reach an amicable settlement or any claim concerning this contract within 80 days from its occurrence, the case will be transferred to International Arbitration Center of the Chamber of Commerce and industry of Vietnam for final settlement under rules of conciliation and Arbitration of International Chamber of Commerce. The decision taken by this Arbitration will be final and all the fees and expenses incurred in the Arbitration shall be borne by losing party Article 9. Entirety This contract constitutes the entire contract between the parties and supersedes all previous negotiations, representation, undertakings hereto fore made between the parties with respect to the subject matter, and shall not be modified except by the mutual agreement in writing by duly authorized officers of the parties hereto Article 10. Notice Any notice, request, consent, offer or demand required or permitted to be given in this agreement shall be in written and shall be sufficiently given that it should be delivered in person or sent by registered airmail, telex or cable confirmed by registered ainmail letter Article 11. Amendment This contract is not changed, modified or amended by the parties of this contract provided that such change, modification or amendment is in written and signed by both parites IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative as of the date first above written.
SIGNED FOR AND ON BEHALF OF

SIGNED FOR AND ON BEHALF OF

325

ADDENDUM 1
Contract No.: APRO-02MV-117 Date: November 8. 2002

Between: HONG BANG SHIP BUILDING INDUSTRY & CONSTRUCTION CO. (VISDEMCO)
No. 1, Hanoi Street, Haiphong City, Vietnam Tel: 84-31-525282 Fax: 84-31-525273 Represented by: Mr. Tong Van Manh - Director

And:

A - PRO CORPORATION
Add: 12F 1216-1, Huyndai 41 Tower, 917-9, Mokdong, Yangcheonku. Seoul, Korea Tel: 0082-2-764-7811 Fax: 0082-2-764-7813 Account: 327-JSD-10620-6 at KOREA EXCHANGE BANK, SEOUL Represented by: Mr. Jai Gyu-Kweon- President

This ADDENDUM is an integral part of this contract No. APRO-02MV-117 dated November 8, 2002. Both parties mutually agreed on the commodity, quantity, price and shipment.

1. Commodity/size and specification


AMOUNT CNF FO Haiphong port (incoterm 2000) 313,302.51

NO

COMMONDITY

QUANTITY (tons) 1,484,846

UNIT PRICE (USD/tons) 21$

Over Rolled Steel H-Beam Spec: JIS G3 101 SS490 Size: Height: 344mm-900mm Thickness: 9mm up Length: 6,000mm-15,000mm No. of Pcs: 1,093 pcs. TOTAL:

1,484,846

313,302.51

(Three hundred thirteen thousand three hundred United states dollars and two and fifty one cents only) 326

Tolerance: + 5% on both quantity & amount. No hole no plate attachment along the length of H-beam, atmospreric rust acceptable. 2. Origin: 3. Payment: 4. Packing: JAPAN BY IRREVOCABLE L/C AT SIGHT BARE IN LOOSE IN NOVEMBER. 202

5. Shipment:

6. Latest date of shipment: DEC. 15,2002 HAIPHONG PORT. VIETNAM 7. Destination: L/C MUST BE OPENED WITHIN 03 8. L/C open date: WORKING DAYS AFTER SIGNING THE CONTRACT.

SIGNED FOR AND ON BEHALF OF

SIGNED FOR AND ON BEHALF OF Buyer

Seller

327

7.2. The Vietnamese version of the contract

HOP WONG MUA BAN No. APRO-02MV-117- Ngay: 08/11/2002


Hop cl6ng nay clu'cfc lam giro ccic ben sau day:

CONG TY CONG NGHIEP TAU THIA 7 VA XAY DUNG HONG BANG (VISDEMCO)
Dia chi : S6 1 dugng NO, Hai PhOng, Viet Nam Fax: 84 31 525 273 Dien thoai : 84 31 525 282/824 758 Sau day goi la ben Mua

Dai dien : Mr. Tgng Van Manh - Giam dgc

va A-PRO METAL CORPORATION


Dia chi : 5F 27 1 KYONGYANG, JONG RO 6KA, JONGRO KU, SEUL KOERA
-

Dien thoai : (82) 2-764-7812 Dai dien : Mr. JAI GUY-Kweon - ChU tich Sau day goi la ben Ban

Fax: (82) 2-764-7813

Tai khoan : 327-JSD-100620 - 6 tai KOREA EXCHANGE BANK, SEOUL

Hgp deing nay dugc lap tai Viet Nam va c hieu h.rc to ngay 08/11/2002 gilla A-PRO METAL CORP., clugc to chtk va hoat dOng ton tai theo 101 phap Korea (sau day clugc goi la ben Ban) va COng ty CNTT va Xay dung HOng Bang (VISDEMCO) dugc to chk, hoat dOng va ton tai theo kat phap Viet Nam (sau day clugc goi la ben Mua)

Lam cluing rang :


"Ben Ban" ban san phdm (se dugc xac dinh sau) va "Ben Mua" mua san pha'rri se dugc neu chi tiet trong Phu luc 1 Hai ben sau khi xem xet lgi Ich cua minh clang y nhirng dieu khoan sau:

Dieu 1: Hang hoa - Quy cach - S6 Iuung - Gia ca - Gia tri tien va nhan hang
San pham se clugc m6 to chi tie't trong phan phu luc neu r6 hang hoa, gia ca, s6 lugng va ck chi tie't tao nen cac phan cila Hop dong nay 328

Nguai nhan hang duqc chi dinh bai ben Mua la C6ng ty CNTT va xay dung Hong Bang (VISDEMCO) Dieu 2: Di6u khoin thanh loan Nguai Huang lqi: A-PRO METAL CORPORATION 12F 1215-1, HUYNDAI 41 TOWER, 917-9 MOKDONG YANGCHONGU, SEOUL, KOREA Tel: (82) 2-764-7811 Fax: (82) 2-764-7813 Ngan hang thong bao: KOREA EXCHANGE BANK MOKDONG BRANCH 905-20 MOKDONG, YANGCHUN-KU, SEOUL 158-055, KOREA SWIFT: KOEX KRSE 2.1 L/C Co th6 cluqc tra ngay tai nu6c nguai Huang lqi khi xuk trinh nhiing thong tir xepa hang sau:

+ Chitng to tai lieu yeu cdu de' giao dich:


+ BO day du cila B/L goc sach da x6p hang len tau ghi "Ctrac tra truac" dtrqc phat hanh d6 thuc hien lenh cua Ngan hang phat hanh va thong bao cho nguii yeu cu + 3/3 Hod don thuong mai da ky dua tren trong luqng thut do ben Ban phat hanh + 01 ban g6c hoac 01 ban copy gily chang nhan ye s6 Wong, do NKKK cap tai tang x6p hang + Trong yang 03 ngay sau khi x6p hang, ben Ban se th6ng bao cho ben Mua va ngan hang phat hanh nhang thOng s6 co ban bang Fax: ngay tau khai hanh, ngay tau du ki6n d6n, trong luting thi.rc/tinh, SO B/L va ngay 14 B/L, hang hod, tong gia tri tien, ten, tuai va quac tich tau, dai 1T tau bin tai Hai PhOng, gia tri INVOICE va so L/C + Gay chting nhan cua nguai twang lqi xac nhan rang 01 1)0 thong tir nonnegotiable se duqc giri trot ti6p cho nguai nhap khau bang chuy6n phat nhanh 05 ngay sau khi x6p hang Chu Si: + L/C phai duqc ma trong yang 03 ngay sau ngay 14 hop clang + Chang tin ben thin ba daqc chap nhan + B/L Hop dang thue tau chap nhan

329

+ Tat ca cac chi phi ngan hang ngoai Viet Nam do ben Ban chiu, cac chi phi ngan hang ben trong Viet Nam do ben Mua chiu. Chi phi sira d6i L/C do ben yeti cdu sira doi chiu nix khi L/C m6 khOng pha hop voi Hop dOng

Dieu 3. Xep hang


3.1 Cang den: Cang Hai Phong, Viet Nam 3.2 Chu* tai ding phan: Kh6ng duqc phep 3.3 Giao hang tirng phdn: Khong dirgc phep 3.4 Cang xep: Bat ky Cang nao tai Nhat 3.5 Ngay xep hang mu0n nhgt: 15/12/2002 3.6 Ben Mua phai thu xep cdu tai Cang d6

Dieu 4. Thong bao 'cep hang


Trong yang 05 ngay lam viec sau khi hoan thanh viec xep hang ben Ban se thOng bao cho ben Mua va ngtroi nhan hang do ben Mua theo thong bao xep hang bang Fax

Dieu 5. Bat kha khang


Trong tru6ng hop viec thtrc hien flop d6ng bi dinh lai, tri hoan do anh hu6ng hoac mot phan bi anh huang cUa chien tranh, bao loan, dinh cOng, hoac cac tranh chap lao Ong, hoa hoan, lut bao hoac bat cd nguyen nhan nao gay len ben ngoai mu6n cUa hai ben, thl hai ben se khOng bi rang bu0c trach nhiem d6i viii hop clang hoac bat di phan nao dia hop dOng nay

Dieu 6. Bac) him


Ben mua se mua bao him rui ro thieu hut. Ben giant dinh se do cong ty Bao him chi dinh

Dieu 7. Giam dinh


Ben mua c6 the mori NKKK de giam dinh quy cach hang hoa. Neu c6 bat kS , khieunaovqychgd,baoimnhcuNKselaktq cuth ding. Phi giam dinh do ben mua tra

Dieu 8. Trong tai


Trong twang hop c6 tranh chap hai ben khOng the giai guy& bang thuang Wong hoac bat kST khieu nai nao lien quan den hop clang nay trong yang 80 ngay kd tir ngay phat sinh thi se duoc chuyen den Trung tam trong tai quoc to ben canh phong COng nghiep va thuong mai Viet Nam giai quyet. Quyet dinh cua Trong tai la phan guy& cu6i ding hai ben phai chap nhan, moi chi phi se do ben thua cuOc thanh toan

330

Dieu 9. Nguyen ban Hap (long nay tao lap hop dOng nguyen ban gift hai ben va thay the tat ca cac giao dich truck do, cac phan thd hien, cam k6t a hop (long nay duorc lap bgi hai ben theo chit de cita hop dong va kh6ng dugc sira d6i trir khi dugc su dong y bang van ban do cac can b0 dugc u57quyen hqp phap hai ben chap nhan Dieu 10. ThOng bao
Bat cri th6ng bao, yeu cau, thoa thuan, chao hang hoac dei hOi dua vao hap eking nay phai dugc lam thanh van ban va gifi day du, phai dugc giao tan tay hoac gin bang buu dien, telex, hoac dien tin va phai dugc buu dien xac nhan

Dieu 11. Sira doi Hap dong nay hai ben kh6ng dugc thay d6i, sira chira trir khi nhiing thay doi,

sira chita dugc lam thanh van ban va dugc hai ben 14 xac nhan
Hai ben ding thoa thuan thuc hien nghiem file ban hap dong nay.

DAI DIEN BEN BAN

DAI DIEN BEN MUA

331

PHU LUC 1
Hop thing s6: APRO-02MV-117-

Ngay: 08/11/2002

Git?a

CONG TY CONG NGHIEP TAU THU'i7 VA XAY DUNG HONG BANG (VISDEMCO)
Dia chi : S6 1 du6ng Ha NO, Hai PhOng, Viet Nam Fax: 84 31 525 273 Dien thoai : 84 31 525 282/824 758

Dai dien : Mr. T6ng Van Manh - Gidm dCic

va A-PRO METAL CORPORATION


Dia chi : 5F 27-1 KYONGYANG, JONG-RO 6KA, JONGRO-KU, SEUL KOERA Dien thoai : (82) 2-764-7812 Dai dien : Mr. JAI GUY-Kweon - Chit tich Phu luc nay la phan khOng thd thidu cua Hop dong s6: APRO-02MV-1 17 ky ngay 8/11/2002. Hai ben ding clang y ve cac dieu khoan hang hod, s6 Wong va gia ca, giao hang: Fax: (82) 2-764-7813 Tai khoan : 327-JSD-100620 - 6 tai KOREA EXCHANGE BANK, SEOUL

1. Hang hod/kich ca va quy cach Thanh Wen CNF FO


Cang Hai Plying (Incoterm 2000)

S6 Wong (MT)

S6 Wog (MT)

Don gia USD/MT

1. H-Beam can nong Quy cach: J1 G3101 SS490 Kich Ca: Chia' cao: 344-900mm Chieu day: 9mm up Chieu dai: 6.000-15.000mm S6 Pcs: 1.093 Pcs
Ciing:

1.484.846

200

313.302,51

1.484.846

313.302,51

(Ba train inti'ai ba ngan ba tram linh hai Do la 11/15" va nam meal mot xen)

332

Sai s6: 5% ca ve s6 Wong va thanh KhOng c6 cac 16 thung, tam dinh doc theo chieu dai cua H-Beam. Bui ban do khOng khi duqc chap nhan. 2. Xuat xu 3. Thanh town 4. Dong g6i 5. XeP hang : Nhat Ban : L/C khOng huy ngang tra ngay : Hang rOi : Thang 11/2002

6. Ngay xeP hang muOn nhat: 15/12/02 7. Cang den : Cang Hai Phong, Viet Nam 8. Ngay mo L/C : L/C phai dtroc m& trong wing 03 ngay lam viec sau khi ky hop dung.

DAI DIEN BEN BAN

DAI DIEN BEN MUA

333

8. SALES AND PURCHASE CONTRACT 2 8.1. The English version of the contract Date: 18 April 20... No. VHH - 030455 - 01 Between: HONG BANG SHIPBULDING INDUSTRYAND CONSTRUCTION COMPANY

Address: 01 Hanoi Rd., Haiphong City, S.R.Vietnam Tel. : ++ 84 31 82 47 58 /52 52 82 fax : ++ 84 31 52 52 73 Represented by: Mr. Tong Van Manh - Director. Hereinafter called the Buyer

And: HAN STAR SHIPPING CO., LTD


Address:
RM 204, WORLD VISION BLDG., 24-2, YOIDO-DONG, YOUNGDEUNGPO-GU, SEOUL, KOREA. Fax : ++ 82 2 775 2221

Tel.: ++ 82 2 775 1110 Represented by : Mr. S.K. LEE Hereinafter called the Seller

It is mutual agreed between both parties to enter into this contract on the terms and conditions as follows :
Article 1 : Commodity description
-

Scrap steel for rerolling


Size (mm): Any sizes with length : 1.500 up Quantity: 100 MT ( 10%) Unit price: USD 200 CIF Hai phong port, Vietnam (Incorterm 2000) Amount: USD 20,000 10% (Say : U.S Dollars twenty thousand)
Article 2 : Shipping terms

Shipment port: Destination port: Partial shipments: Transshipment: Packing: 334

Any Korea port Haiphong port, Vietnam. Not allowed. Not allowed. Bare in bunlde/ bare in loose

Origin: Vessel age: Shipment date:

Not over 20 years old Latest is 10 Apr., 2003

Shipment in container and shipment details to be advice by fax to the buyer right after shipment Article 3 : Terms of payment By T.T Remittance within 07 working days after cago arriving Hai phong port to the following Seller's account:

The following documents should be sent directly to Buyer within 05 days from B/L date:
Full set 3/3 Original of Clean on board Bill of Lading marked "Freight Prepaid" issued to the order and notify Buyer - Hong Bang shipbulding Industry and Construction Company

- Signed Commercial Invoice in triplicate - Packing list in triplicate - Certificate of weight/quantity in triplicate issued by one Inspection Company - Certificate of original issued by The Korea Chamber of Commerce in two original and one copies showing Buyer is Hong Bang shipbulding Industry and Construction Company - Within 03 working days after shipment, the seller has to advise to the buyer by fax particular of shipment : Vessels name and nationality, quantity or weight of commodity, invoice value, number of B/L, ETD, ETA, Shipping Agent in Hai Phong, Vietnam Article 4 : Weight determination 0.5% weight franchise between the loading port and discharging port is acceptable In case weight shortage or exceeding of 0.5%, both the Seller/Buyer agree to refund/reimburse the relevant amount after deducting the allowed franchise at the earliest convenience. Relevant debit/credit note accompanied by Truck survey report of INDEPENDENCE INSPECTIONS COMPANY at discharging port should be required 335

ARTICLE 5 : FORCE MAJEURE Either party to this agreement will be temporarily relieved of any obligation hereunder should an event occur over which that party has no control, including but not limited to, Act of God, riots, strikes, lockout, civil commotion, insurrections, wars, or other cause beyond their control, and which prevent that party from fulfilling that obligation. Should any such event occur, the party unable to fulfil its obligation, will immediately inform the other party of the circumstances, and will continue to keep the party informed in this connection. Should the circumstances last for the continuos period of more than 3 (three) months the other party may terminate this agreement with immediate effect on written notice to the party of such event The party wishing to claim relief by reason of any said circumtance shall notify the other party in writing of the intervention and of cessation, and then deliver a certificate issued by the Chamber of Commerce at the place where the accident occured as evidence thereof. The event of the delay by force majeure exceeds 60 days, each party shall have the right to cancell this contract, unless otherwise agree in such case, neither party shall have the right to claim eventually damages ARTICLE 6 : ARBITRATION In case of dispute, the Parties agree to settle the discrepancies amicably. If amicable agreement is not reached within 60 days from its occurrence, the disputes shall be finally settled by International Arbitration Center of Vietnam under the Rules. The language of Arbitration shall be in English. The parties agree that any award made in accordance with the provisions of this clause is final and binding on both of them. The place of Arbitration shall be the Capital city of the Buyer's country The losing party will pay arbitration charge and any other charge ARTICLE 7 : ADDITIONAL CONDITIONS Buyer has the right to re-inspection cargo within 30 days of the cargo arrival and has the right to claim Seller upon provide the re - inspection report from Independent Inspections Company at the Buyer's account Any amendment to this Contract shall be only valid if made in writing and duly confirmed by both parties. This Contract will be valuable after signed by both parties Made four English originals, as same force, half of which for each party If mutual agreed by Buyer and Seller, signed facsimile copy to be treated as ORIGINAL
FOR N ON BEHALF OF THE SELLERS FOR NON BEHALF OF THE BUYERS

336

8.2. The Vietnamese version of the contract

HOP HONG MUA BAN


S6 : VHH - 0304SS - 07 Ng6y 18/04/2003

Gifra : CONG TY CONG NGHIEP TAU MA' VA XAY DUNG HONG BANG - DIA CHI : SO 01 DUONG HA NOI - HONG BANG - HAI PHONG FAX : 031.52 52 73 - DIEN THOAI : 031.824 758 / 52 52 82
- DAI DIEN : MR. TONG VAN MANH - GIAM DOC

Sau day goi la nguai Mua. Va


- Dia chi - Dien thoai
-

: HAN STAR SHIPPING CO., LTD


RM 204, WORLD VISION BLDG., 24-2, YOIDO-DONG, SEOUL, KOREA YOUNGDEUNGPO-GU, : ++ 82 2 775 1110 Fax : ++ 82 2 775 2221

Dai di'en

: Mr. S.K. LEE

Sau clay goi la nguai Ban.


Cd hai ben (long

Y 4 ker Hap

clang nay then cac dieu khocin va dieu kien sau

day
Dieu 1 : Hang hoa - quy cach
Ten hang Kich Trong lugng : Thep ph'6 lieu dung de can keo lai : Bat kSived chieu dai to 1.000 mm troy len : 130 MT (03%)

Trong dc5 : H-Beam ph'6 lieu = 112 MT (03%); 6ng ph'6 lieu : 18 MT (03%) : 130 USD/MT CIF LT Cang Hai Phong Don gia (Incorterm 2000
Gia tri

: 24.700 USD : bat 14 Gang Korea nao : Gang Hai Phong : khOng dugc phep.
337

Dieu 2 : Dieu khoan xe-p hang


Cang x6p Cang den Van chuy6n tong phan

Chuyen tai Bao bl Xufat Tu6i tau

: khOng dugc phep. : hang dong 1)6/ hang roi theo chi dinh cua ngtroi ban : Korea : KhOng qud 20 tu6i trong truong hop ngtroi Ban thud tau ch6 hang reii de van chuyen hang hod cua hop (long nay. : KhOng muem hon ngay 30/04/2003

Ngay x6p hang Dieu 3 : Di6u khoin thanh Wan

Chi ti6t x6p hang se thOng bdo cho ben Mua bang fax sau khi x6p hang len tau. Thanh town bang TTR trong vOng 03 ngay lam viec sau khi hang ve den Cang Hai Phong vao tai khoan cUa ben ban nhtr sau : KOREA EXCHANGE BANK YOUIDO BRANCH SEOUL, KOREA SWIFT BIC CODE : KOEXKRSE ACCOUNT No. : 061-JSD-101512-1 Ngubi hu6ng lgi : HAN STAR SHIPPING Co., LTD. Di6u 4 : Chang tit tai lieu sau de giao dich : - 3/3 be) van don sach ghi ro "cu6c tra trait" ky hau de trong va thuc hien lenh va thong bdo cho ben Mua la COng ty CNTT va XD Hong Bang - 03 Hoa don thuong mai da ky - 03 Ban Packing list - Giay chting nhan trong lugng/s6 Wong va chat lugng do 01 COng ty giam dinh cap - 01 ban g6c va 02 ban sao Gigy cluing nhan xuat xti do Pheng Thuong mai va cang nghiep KOREA phat hanh Trong vOng 03 ngay lam viec sau khi x6p hang ben Ban phai thOng bao cho ben Mua bang Fax cdc thOng so cna tau : Ten tau va quoc tich, s6 lugng hoac trong lugng hang hod, gid tri hod don, s6 B/L, ngay tau khoi hanh, ngay du ki6n tau d6n, Dal ly tau Wen tai Hai PhOng, VN Dieu 5 : Giant dinh 0,2% dung sai ve trong lacing to cang x6p den cang do dugc chap nhan Trong trueing hop It hon hoac vu6t qud 0,2%, Ca hai ben Bdn va ben Mua dOng tra lai hoac tra them s6 tien sau khi khau trir nhung phdn dugc phep mot cach thich hop nhat. Phan ghi no hoac phan c ng tren co so Ban bdo cao giam dinh qua can ci;ia met co quan giam dinh dOc ldp tai cang del" n6u dugc yeu cdu 338

Dieu 6: Tranh chap ye chat !Yong Chat lugng hang hod dat tieu chudn nhu cluing tir hoac anh ma da dugc giri den ngubi Mua cho phan dinh gia ve chat lugng trudc khi ky ket hop dons Ben Ban, nen ben Mua khOng chap nhan chat lugng, c6 quyen huy 1)6 hop (long va ca hai ben cling phai chiu chi phi de chi hang ve Dieu 7: Dieu kien bat kha khang Moi ben trong ban hop (long nay kh6ng phai chiu trach nhiem ve cac van de xay ra dudi day ma cac ben kh6ng kiem soat bao gom nhung kh6ng gidi han, Thien tai, cuOc n6i loan, dinh cOng, sir ap dat, nOi chien, n6i loan, chi& tranh hoac nguyen nhan khac ngoai su kiem soat cua cac ben va ngan can cac ben thuc hien hop dOng nay. Neu cac sir kien nhu tren xay ra ma cac ben khOng c6 kha nang de thuc hien tie') hop (long thi phai th6ng bao ngay cho ben kia trong moi truing hop va cac ben phai tiep tuc gilt lien lac vdi nhau. Neu truing hop cuOi cling cUa thii kSi tiep theo qua 03 thang, ben kia c6 the ket fink hop dong bang van ban c6 hieu lirc thong bao cho ben kia ve cac sir kien nhu vay

(sir

Bat kSi 17 do, tinh huong sira d6i nao dua ra cho ben kia phai lap thanh van ban va dugc hai ben thong nhat moi co gia tri, chiing nhan dugc dua ra tai Phong Thuong mai tai nod xay ra tranh chap merit co gia tri. Viec hoan c6 gia tri trong \Tong 60 ngAy, lieu qua cac ben c6 quyen huy bO Hop dong, trir khi trong truing hop ca hai ben dong yr, khOng ben nao co quyen khieu nai ve nhang thiet hai Dieu 8: Trong tai Truing hgp tranh chap, cac tranh chap nay sinh trong hgp dong nay phai duqc thao luan ban bac gifia cac ben, nen khOng giai quy& dugc trong vong 60 ngay thi phai dua ra Trung tam trong tai Quoc to tai Viet Nam giai quyet theo Drat. NgOn nglt cUa trong tai IA tieng Anh. Cac ben (long y rang bat cd quy& dinh nao phi.' hop vdi dieu khoan nay se la Quyet dinh cueii cling va bdt buOc cho ca hai ben. Dia diem giai quy& tranh chap se la thii do clia nude Nguii Mua Chi phi trong tai va nhang chi phi khac do ben thua kien chiu chi phi Dieu 9 : Dieu khoan chung Dai dien cila ben Ban se cling tham du viec (la hang va giam dinh hang hod. Ben Mua co quyen khieu nai ve chat luting khac biet cila hang hoa va de giai quy& vdi dai dien ben Ban trong yang 03 ngAy sau khi hoAn thanh viec dot hang Bat 14 sira d6i nao clia ban Hop (long nay chi c gia tri khi dugc lap thanh van ban va dugc hai ben xac nhan. Hop dong c6 hieu hrc sau khi hai ben 14 ket Hop dOng dugc lap thanh 04 (bOn) ban bang tieng Anh, co gia tri nhu nhau, moi ben gilt 02 (hai) ban Neu dugc sir dong y cUa hai ben Mua va ben Ban, hop dong 14 qua Fax coi nhu IA ban hop dOng chinh. DAI DIEN BEN MUA DAI DIEN BEN BAN 339

Part!!

ICC MODEL CONTRACT FOR THE SALE OF GOODS


1. THE ENGLISH VERSION OF THE CONTRACT CONTRACT FOR THE SALE OF GOODS BETWEEN hereinafter called "the SELLER" AND hereinafter called "the BUYER" PREAMBLE (NOTE. The Preamble is optional) The agreement between the parties to this Contract is based on the following understandings: (NOTE: The following clauses are examples only. Delete as appropriate) 1. The BUYER is acting partly on its own behalf and partly as a purchasing agent for other companies 2. The BUYER is acting as purchasing agent for 3. Both parties understand that Goods made to meet the BUYER's special specifications may have no value or very limited value on the open market 4. The SELLER understands that the BUYER in specifying the Goods has relied to a large extent on the expertise of the SELLER 5. The SELLER understands that the BUYER is under contract to resell the Goods and that if the Goods are defective or non-conforming in quality
Name of Principal

340

or quantity, the BUYER may be liable for damages in an amount exceeding 6. The SELLER understands that the BUYER intends to install the Goods as a component part in equipment to be resold, and that if the Goods are defective or non-conforming in quality or quantity, the BUYER may be liable for substantial damages 7.
2

1. Applicable Law

This Contract and all questions relating to its formation, validity, interpretation 3 or performance shall be governed by the law of (NOTE: The subclause below is optional) This Contract shall not include, incorporate or be subject to the provisions of the "United Nations Convention on Contracts for the International Sale of Goods"
2. Definitions

In this Contract the words below have the meanings ascribed to them unless the context otherwise clearly dictates: 2.1. Unless expressly modified by the parties, "FOB", "CIF" and other trade terms have the meanings and obligations ascribed to them in Incoterms 2000, Publication 460 of the International Chamber of Commerce, Paris 2.2. "Contract" means this Contract, its preamble and appendices, as well as all documents expressly listed as Contract documents or otherwise expressly mentioned in this Contract 2.3. "Goods" means the Goods specified in Clause 4 below 2.4. "Price" means the Price as specified in Clause 9 below payable to the SELLER for the Goods 2.5. "Delivery" means Delivery as specified in Incoterms 1990 under the Incoterm or Incorterms agreed in this Contract

Currency and amount List of additional background understandings between the parties 3 Name of country

341

2.6. "Day" means a calendar Day. For the purposes of this Contract, Saturdays, Sundays and all holidays are considered as Days 2.7. "Direct" costs and losses are costs and losses arising in immediate connection with any failure to deliver, any delay in Delivery or any defect in Goods delivered under this Contract. Such costs and losses must have an immediate, foreseeable and provably causal connection with the delay or defect. All other costs and losses are deemed by this Contract to be "indirect"; In particular, loss of profit, loss of use, and loss of contract are considered indirect losses 2.8. "Government" means national Government, local Government, local authorities, and their agencies. In particular customs and/or excise departments are considered as Government agencies 2.9. "Termination" means the discharge of the Contract by one of the parties under any right expressly granted by this Contract. The discharge of the Contract by any other right arising from the applicable law or any other source is deemed to be "cancellation" of the Contract 2.10. 3. Entire Agreement and Contract Documents This Contract constitutes the entire agreement and understanding between the parties. There are no understandings, agreements, conditions, reservations, or representation, oral or written, that are not embodied in this Contract or that have not been supersede by this Contract (NOTE: The subclause and list below are optional) In addition to the text of Contract itself, the documents listed below shall form part of the Contract. All listed documents and the clauses of this Contract shall be read, if possible, so as to be consistent. In the event of conflict, the order of precedence for the provisions and documents which constitute this agreement shall be as follows: (NOTE: The list below contains examples only. Delete as appropriate) a. Any alterations made on the face of the printed Contract b. The Contract itself

List of additional definitions agreed between the parties

342

c. Specifications d. Manufacturing drawings e. The BUYER's Special/General Conditions of Purchase f.


g

The SELLER's Special/General Conditions of Sale

4. Scope of Supply The Goods to be delivered under this Contract are specified
2

5. Delivery

5.1. Date, Place and Terms of Delivery


3 ; the schedule date of Delivery 3 Delivery of the Goods shall be made shall be 4 ; Risk and title to the Goods shall pass from the SELLER to the BUYER on Delivery. The place of Delivery under this Contract is
5

5.2. Naming and Arrival of Vessel (NOTE: This clause is intended primarily for use in FOB and FAS contracts).
The BUYER shall advise the SELLER of the name of the vessel not later than 6 Days before the agreed Delivery date If the vessel named by the BUYER fails to arrive on or before 7 then the SELLER may at his discretion deliver the Goods to 8 and shall be deemed to have a bonded warehouse in the port of fulfilled his Delivery obligations under this Contract. In this event, the SELLER must notify the BUYER of the full circumstances of the Delivery to the warehouse. With Delivery to the warehouse, all costs, including but not limited to cost of storage and insurance are to the BUYER's account
Further contract documents Use "belo/' or the name of the annex where the goods are specified Agreed Incomterm Agreed date of delivery 5 Agreed place of delivery. Note: In FOB, FCR, CIF and GIP (etc.) contract, this is part of shipment. 6 Number (of days) Date of arrival of ship " Port of shipment
2

343

5.3. Shipping Marks and Packaging


(NOTE: The following two subclauses are examples. Reword as appropriate).

On the surface of each package delivered under this Contract shall be marked: the package number, the measurements of the package, gross weight, net weight, the lifting positions the letter of credit number, the words RIGHT SIDE UP, HANDLE WITH CARE, KEEP DRY, and the mark 2 and are to be well protected against Goods are to be packed in dampness, shock, rust or rough handling. The SELLER shall be liable for any damage to or loss of the Goods attributable to improper or defective packaging.
(NOTE: The following subclause is relevant only to deliveries in Germany).

5.4. Disposal of Packaging Responsibility for the disposal of any packaging shall be the BUYER's. 6. Notification of Deliver:
(NOTE: This clause applies largely to contracts under which delivery takes place in the country of the seller).

Immediately on Delivery, the SELLER shall notify the BUYER of Delivery by 4 3 This notification shall include 7. Inspection before Shipment 7.1. Inspection by the Buyer The BUYER may, at the BUYER's option, inspect the Goods prior to 5 Days before the actual Delivery date, the shipment. At least SELLER shall give notice to the BUYER, or to any agent nominated by the BUYER, that the Goods are available for inspection. The SELLER shall permit access to the Goods for purposes of inspection at a reasonable time agreed by the parties
(NOTE: Customs requirements for importation of goods into Indonesia and the Philippines require inspection by SGS prior to shipment from the Seller's

' Shipping mark Description of required packing Means of notification, e.g., FAX List of documents and information required Number (of days)

344

country. The following clause is recommended for sales to these countries). 7.2. Inspection by Inspection service
The parties understand that importation into I requires inspection of Goods by SGS before shipment from the SELLER's country. The SELLER agrees to cooperate fully with the SGR in providing access to and necessary information about the Goods for the purpose of such inspection

8. Early Delivery, Partial Shipment, Delay in Delivery8.1. Early Delivery


(NOTE: The three sub-clauses below are alternatives. Delete as necessary). Under this Contract Delivery up to 2 Days early is permitted. However, payment shall not become due until the date agreed for payment in this Contract; Delivery up to 2 Days early is permitted. In this case payment shall fall due as though the actual Delivery date were the Delivery date agreed in the Contract 8.2. Partial Shipment (NOTE: The two sub-clauses below are alternatives. Delete as necessary).
Partial shipment is not permitted under this Contract, subject to the agreement of both parties. However, any costs arising from partial shipment shall be to the 4 account of the

8.3. Delay in Delivery


In the event of late Delivery for reasons other than force majeure as defined in Clause 17 below, the SELLER shall pay as liquidated damages and not as a penalty the sum of 5 of the value of the undelivered part per Day of late 6 of the Contract Price. Payment of Delivery up to a maximum of liquidated damages shall be due without the BUYER having to furnish proof of any loss, damage or injure

(NOTE: The two sub-clauses below are alternatives. Delete as necessary).


Payment of liquidated damages shall constitute full and complete satisfaction of any claim of the BUYER against the SELLER arising from the or in connection with late Delivery of any Goods. In particular the SELLER shall not
' Name of country Number (of days) BUYER or SELLER 5 Figure 6 Figure

345

be liable for any indirect loss or damage, as defined in Clause 2.7 above, arising from or in connection with late Delivery of any Goods. Payment of liquidated damages by the SELLER shall not preclude the BUYER from seeking compensatory damages from the SELLER for any loss, injury or damage arising from or in connection with late Delivery of any Goods. In particular the BUYER shall be entitled to compensation the SELLER for any indirect or consequential loss or damage, including but not limited to loss of profit, loss of use or loss of contract, arising from or in connection with late Delivery of any Goods. However, payments made as liquidated damages shall be offset against any compensatory damages recovered from the SELLER for the late Delivery of any Goods
8.4. Termination for delay

In the event that the SELLER becomes liable to pay the maximum sum payable as liquidated damages under Clause 8.3 above, then the BUYER shall, upon due notice, have the right to terminate the Contract 9. Price The Price for the Goods to be delivered under this Contract is
2)

10. Terms of Payment Payment shall be made by means of an irrevocable, confirmed letter of 3 on the credit. The BUYER shall open the letter of credit on or before terms agreed by the parties and annexed to this Contract as Appendix
4

This Contract shall not come into force under Clause 16 below until the SELLER has received advice that the letter of credit has been opened in his favour and has ascertained that the terms are in accordance with those agreed between the parties. Any discrepancy between the terms agreed by the parties and the letter of credit as issued shall be notified by the SELLER to the BUYER immediately

Currency symbol and figure Currency and figure in words 3 Date of opening of letter of credit 4 Appendix number
2

346

11. Inspection of the Goods

11.1. Duty to Inspect and Notify Discrepancies


The BUYER shall inspect the Goods on their arrival at the place of destination. If the Goods fail to conform with the Contract in either quality or quantity, then the BUYER shall notify the SELLER of any discrepancy without delay

11.2. Failure to Notify Discrepancies


If the BUYER does not notify the SELLER of any such discrepancy within I Days of the arrival of the Goods, then the Goods shall be deemed to have been in conformity with the Contract on arrival

11.3. Buyer's Rights in the Event of Discrepancy in Quantity


If a material discrepancy in quantity exists and is duly notified to the SELLER, the BUYER at his discretion and subject to Clause 8.2 above may either: a. Accept the delivered portion of the Goods and require the SELLER to deliver the remaining portion forthwith; or b. Accept the delivered portion of the Goods and terminate the remaining portion of the Contract upon due notice given to the SELLER.
2 If any material discrepancy in quantity exists such that and if such discrepancy is duly notified to the SELLER, the BUYER may at his discretion:

a. Adopt either of the remedies prescribed above in this clause; or b. Reject the delivered portion of the Goods and recover from the SELLER all payments made to the SELLER as well as all costs, expenses and customs duties incurred by the BUYER in association with the shipment, movement through customs, insurance or storage of the Goods (NOTE: Clause 11.4 below may not be necessary if SGS's inspection takes place before shipment).

11.4. Buyer's Rights in the Event of Discrepancy in Quality


Discrepancies in quality shall be considered as defects and shall give rise to claims under the defects liability provision of this Contract in Clause 12 below

Number (of days) Description of fundamental discrepancy

347

However, a fundamental discrepancy in quality shall give the BUYER the right to refuse Delivery of the Goods in whole or in part and to recover from the SELLER all payments made for the unaccepted portion of the Goods as well as all costs, expenses and customs duties incurred by the BUYER in association with the shipment, movement through customs, insurance or storage of the unaccepted portion of the Goods
12. Defects Liability 12.1. Seller's Liability for Defects

The SELLER warrants that the Goods supplied under this Contract shall at the date of their Delivery: a. Be free from defects in material b. Be free from defects in workmanship c. Be free from defects inherent in design, including but not limited to selection of materials, and be fit for the purpose for which such Goods are normally used If any defect provably present in any of the Goods on the date of Delivery comes to light during the defects liability period, then the BUYER shall forthwith notify the SELLER. The SELLER, without undue delay, shall at his own risk and cost and at his discretion repair or replace such item or otherwise make good the defect The SELLER's liability for defects is subject to the BUYER having adhered to all procedures and instructions applicable to the of the item, and expressly excludes damage to the Goods caused by fair wear and tear or by misuse occurring after Delivery
12.2. Defects Liability Period

The SELLER shall be liable for defects which come to light during a period of 2 days from 3 After the end of this period, the BUYER shall have no right to raise claims of any kind against the SELLER for any defect in any Goods of the SELLER's supply The defects liability period shall be prolonged by the length of any period during which the Goods cannot be used by the BUYER because of a defect.
Condition of use (e.g., "storage, installation, use or operation") Number (of days) 3 Date of start of defects lialibity period
2

348

However, if new Goods are delivered to replace defective Goods, the defects liability period shall not begin again on the replacement Goods 12.3. Limitation of Defects Liability

(NOTE: The two clauses below are alternatives. Delete as necessary)


The duty to repair and replace or otherwise to make good the defects is the only duty of the SELLER in the event of the Delivery of defective Goods. In particular the BUYER shall not be entitled to compensate the SELLER for any indirect loss or damages as defined in Clause 2.7 above, arising from or in connection with Delivery of defective Goods The SELLER shall indemnify and hold harmless the BUYER against any loss or damage however arising whether direct or indirect which shall be suffered by the BUYER as the result of defective or faulty Goods delivered by the SELLER 13. Liability to Third Parties

(NOTE: The two clauses below are alternatives. Delete as necessary)


The shall compensate and hold harmless the 2 from any award of damages, reasonable costs, expenses or legal fees, in the event of any action or lawsuit by a third party resulting from any injury, loss or damage to the third party caused by a defect in the Goods delivered under this Contract 2 shall immediately notify the In the event of such Lawsuit, the 2 and shall fully cooperate with the 2 in taking any necessary legal action. In the event of any action or lawsuit by a third party resulting from any injury, loss or damage to the third party caused by a defect in the Goods delivered under this Contract, the party against whom the action or lawsuit is brought shall bear all costs, expenses, awards of damages or legal fees arising therefrom 14. Taxation All income taxes, value added taxes, customs duties, excise charges, stamp duties or other fees levied by any Government, Government agency or similar authority shall be borne exclusively by the party against whom they are levied 15. Assignment of Rights and Delegation of Duties The rights under this Contract may not be assigned nor the duties delegated by either party without the prior written consent of the other party ' Name of the party giving the indemnity (BUYER or SELLER)
2

Name of the party receiving the indemnity (BUYER or SELLER)

349

16. Coming Into Force This Contract shall come into force after signature by both parties and after: a. The issuance of a letter of credit in accordance with the terms of Clause 10 above; b. 2 Days of its signature If the Contract has not come into force within by both parties, all its provisions shall become null and void 17. Force majeure (NOTE: The word duty is marked by an asterisk in this clause. For contracts under Philippines law, the word duty should be replaced by the word obligation) If either party is prevented from or delayed in, performing any duty under this Contract by an event beyond his reasonable control, then this event shall be deemed force majeure, and this party shall not considered in default and no remedy, be it under this Contract or otherwise, shall be available to the other party (NOTE: The subclause below contains examples only. It should be modified as necessary) Force majeure events include, but are not limited to: war (whether war is declared or not), riots, insurrections, acts of sabotage, or similar occurrences, strikes, or other labour unrest; newly introduced Laws or Government regulations; delay due to Government action or inaction, or inaction on the part of any inspection agency, fire, explosion, or other unavoidable accident, flood, storm, earthquake, or other abnormal natural event (NOTE: The subclause below on non-force-majeure events is optional) Force majeure events do not include
3

If either party is prevented from or delayed in, performing any duty under this Contract, then this party shall immediately notify the other party of the event, of the duty affected, and of the expected duration of the event

List of events which must occur before contract comes into force Number (of days) List of events not considered to be "force majeure events"

350

If any force majeure event prevents or delays performance of any duty under this Contract for more than Days, then either parties may on due notification to the other party, terminate this Contract 18. Termination Notice of Termination as defined in Clause 2.9 of this Contract shall be in writing and shall take effect 1 Days from the receipt of such notice by the party notified In the event of Termination, the duties of the parties shall be as incurred up to the date of Termination. In particular, the SELLER shall receive the full Price of any Goods delivered and accepted by the BUYER. The provisions of this Agreement dealing with defects liability, arbitration, and such other provisions as are necessary in order to resolve any post-Termination disputes shall survive Termination 19. Partial Invalidity If any provision or provisions of this Contract are invalid or become invalid, then this shall have no effect on the remaining provisions. Further, the parties agree to replace any invalid provision with a new, valid provision having, as far as possible, the same intent as the provision replaced 20. Modification and Waiver Modification of the terms and conditions of this Contract shall be binding on both parties even without consideration if the modification is in writing, is signed, and is expressly stated to be a modification of this contract Any waiver of any right under this Contract is binding on the party making the waiver even without consideration provided the waiver is in writing, is signed and is expressly stated to be a waiver of the said right 21. Language The language of the Contract, of all Contract Documents, and of all correspondence and other communication between the parties shall be English. 22. Notices Notices served by one party to the other under this Contract shall be made, in the first instance by facsimile transmission (hereinafter called "FAX"). A further copy of each notice shall be sent by registered mail and signed
' Number (of days)

351

The effective date of the notice shall be the date of FAX transmission. In the event of a dispute about the receipt of a FAX, however, the effective date of the notice shall be the date of receipt of the registered letter or a date seven days after the registered mailing, whichever is earlier Notices shall be sent to the following addresses and FAX numbers: SELLER: Address:

FAX Number: BUYER: Address:

FAX Number: Any change in an address or FAX number shall be the subject of a required notice under this Contract 23. Settlement of Disputes All disputes arising in connection with this Contract shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of 1 arbitrators appointed in accordance with the said rules Commerce by The place of arbitration shall be be English. 2 The language of arbitration shall

(NOTE: The three sub-clauses below are alternatives. Delete as necessary).


In the event of arbitration, each party shall bear its own costs. In the event of arbitration, the court shall assess the amount of the costs to be borne by each party. In the event of arbitration, the party against whom the award is made shall bear the entire costs of both parties to the action The parties agree that any award made in accordance with the provisions of this clause is final and binding on both parties Execution The parties, intending to be legally bound, have signed this Contract on the dates and at the places stated below:

Number (of arbitrators) Name of the place (city) of arbitration

352

For and on the behalf of SELLER Title: Date: Place:

For and on the behalf of: BUYER Title: Date: Place:

(NOTE: The witnessing of signatures is not required by all national laws). Witness of SELLER's Signature Witness of BUYER's Signature

353

2. THE VIETNAMESE VESSION OF THE CONTRACT

HOP HONG BAN HANG HOA


Gia (Ten dm ngtrOi ban) Sau day goi IA Ngtred ban. VA (Ten cad ngued mua) Sau day goi IA NgtrOi Mua Mo dau (Phan nay la klzOng nhat thiet) Sty thoa thudn ve Hop dong nay gifra cac ben IA dtroc lAm tren cac co sa sau: (Cac dieu khodn nay chi la vi dy, va tze.0 ngadi mua Id mot dui ly, phdn ma ddu co, thi dyng mot trong so Mc cach ghi nhu sau) 1. NgtrOi mua hanh Ong mot phan \Tad to cach dai dien cho chinh minh va mot phan IA ddi dien mua sam cho cac tang ty khac 2. Ngued mua hAnh dOng nhu mot ddi dien mua hang cho
(1)

(Neil tzgadi ban cung cap hang theo cac qui cach pham chat khong thOng
dyng, piton ma ddu c the? neu;) 1. Ca hai ben hidu rang hang hod &roc sari xuat theo cac qui cach phdm chat rieng cna ngued mua c6 thd khOng c6 gid tri rat thap tren thi trabng to do (Neu tzgaefi mua tin cay hoan town veto rung lyr chuyen mein ctia tzgadi bcin, phdn nd ddu c the' neu..) 2. NgtrOi ban hidu rang, ngtred mua, trong qua trinh xac dinh qui cach phdm chat cua hang hod dd tin ttreing rat nhieu vao nang ltyc chuyen m6n cua ngtrOi ban

(Neil ngdai tnua a Thai Lan, va neu giao hang co khuyet tat hoac hang khOng
hoan chinh lam an hai tighiem tro zg cho /wadi mua, phdn ma ddu co thi neu:)
(1)

Ten ding ty

354

3. Ngu6i bdn hieu rang ngeri mua da c6 Hop dong bdn lai cac hang hod va rang neu hang hod co khuyel tat hoac khOng phu hop ve chit luqng hoac so Wong, ngu6i mua c6 the chiu trdch nhiem phdp ly ye nhUng thiet hai vuot tren tri gia 4. Ngtroi bdn hieu rang ngueri mua du dinh lap rap cac hang hod link kien thi6t bi de ban lai, va rang neu hang hod c6 khuyet tat hoac khOng tuan thil chit lung hoac so Wong, ngu6i mua co the chiu trach nhiem tru6c phdp ly ve cac ton that lon 1. Luat au dung Hop (long nay, va tat ca cac van de lien quan tai viec xay dung Hop (long, hieu cdch then giai hoac dux hien Hop (long se duoc dieu phOi b&i luat cua
(2)

(Gla dui: di " khocin phu sat, clay la tirj., e'tt Hop clang nay se khOng bao gOm, khong ke't hop va khOng IA chit the cua cac dieu khoan cua COng uot cita Lien hop quCic ve Hop clang bdn hang qu6c to 2. Cac dinh nghia Trong Hop dong nay, Ice ca phdn m6 ddu va cac phu luc, cac tir sau day c6 nghia nhu duoc giai thich, trir khi hoan canh cu the xdc dinh cac nghia khdc 2.1. Tit khi cac ben c6 sira d6i, ar "FOB", "CIF" va cac thuat ngu thuong mai kink coy nghia va qui dinh ve cac nghia vu nhu neu trong Incoterms 90, an plitim 460 cua PhOng thirong mai Quoc to Pari 2.2. Tir "Hop clang" c6 nghia la Hop dong nay, phdn ma ddu va cac phu luc cling nhu tat ca cac tai lieu khdc duoc liet ke la cac tai lieu cua hop (long hoac neu c6 khdc di se duoc ghi rO trong Hop thing 2.3. "Cdc hang hod" c6 nghia la cac hang hod duoc neu trong dieu 4 (lath day 2.4. "Cid." la tra cho hang hod cita ngu6i bdn duqc neu trong dieu 9 .du6i day 2.5. "Giao hang" la giao hang theo Incoterms 90, theo dieu khoan hoac cac dieu khoan duoc thoa thuan trong Hop &Ong nay 2.6. "Ngay" 1a ngay theo lich. Doi v6i cac muc dich cita Hop thing nay, cac ngay did 7, cac ngay chit nhat va tat ca cac ngay le deu duqc coi IA ngay 2.7. Cdc chi phi va t6n that "truc ti6p" la cac chi phi va tan that phdt sinh truc ti6p do bat c1.1 viec khOng giao nao, bat cu cham tre nao hoac bat dr khuy6t tat nao
(1)

Logi lien va s6 luvng

(2) Ten cac nutc CO luat

355

ciia hang (IA giao theo Hop Meg nay. Cac chi phi va t6n that do phai c6 thd dugc danh gia ngay va hau nhu phai co quan h@ nhan qua voi cham tre hoac khuye tat. Tat ca cac chi phi va t6n that khac cAa Hop &rig nay dugc coi la "khOng truc Dac biet, t6n that loi nhuan, ten that sir dung va t6n that hop d6ng deu la cac t6n that khOng nix tier, 2.8. "Chinh pile la chinh phu qu6c gia, chinh quydn va cac nha cht'rc trach dia phuong, va cac co quan cua ho. Dac Net, hai quan/cac co quan chinh guy& thira hanh deu la cac co quan chinh phu 2.9 "Cham dirt" la su ket thilc Hop dong b6'd mot trong cac ben theo bat dr guy& nao dugc qui dinh trong Hop (long nay. Viec ket tInic Hop (Ring theo bat ctl quydn nao khac phat sinh tir luat ap dung hoac bat al nguOn nao khac deu dugc coi la "sir huS, b6 " Hop dong nay 2.10. (Cac diet' khac)

3. Thoi thu6n Wan b6 va cac tai li6u cila Hop d6ng Hop dong nay tao nen su thoa thuan toan bO va su hidu nhau gifra cac ben. KhOng co su hidu nhau nao, thoa thuan nao, diet' kien nao, han the nao hoac khang nghi nao, bang mieng hoac van ban ma khOng dugc thd hien trong Hop &lag nay hoac khOng &roc thay the bang Hop (long nay
(Ghi cha: dieu khodn phu sau day la tuY Y)

Ngoai chinh nOi dung ciia Hop (long, cac tai lieu liet ke sau day se IA mot phan cila Hop (Ring. Tat ca cac tai lieu va cac dieu khoan ciia Hop Meg se dugc hidu, lieu co thd, mOt cach thOng nhat. Trong tru6ng hop co mau thuAn, trat to uu tien cua cac diet' khoan va cac tai lieu lam nen sir thoa thuan nay se la nhu sau:
(Ghi cha, danh sach sau day chi la vi du)

Bat cu sira d6i nao ddu lam tren Hop (Ring g6c a) Chinh ban than Hop (long b) Cac qui each phim chat c) Cac ban ye ky thuat
' Lief ke cac thoa thuOn Mac cda cac ben

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d) Cac diet' kien chung/dac biet cua nguai mua e) eic dieu kien chung/dac biet cua ngithi ban 4. Pham vi cung cap Gic hang hod se &roc giao theo Hop thing nay &roc xac dinh bai
(I)

5. Giao hang 5.1. Ngay, dia diem va cac dieu ken giao hang (2) Ngay giao se la Viec giao hang se &roc thuc hien theo (3) Rui ro va quyen soy hitu hang hoa se &rot chuydn tir ngtreri ban sang

nguai mua khi giao hang (Neu ap dung cac dieu kien giao hang CIF, CFR va CPT, cac ben c the neu
them dieu khodn sau).

Dia didm giao hang dm Hop (long nay la


(4)

5.2. Chi dinh tau va ngay den ctia tau (Ghi chi), diet' khodn nay la clang cho cac hop clang theo dieu kien FOB va FAS) Ngithi mua se thOng bao cho ngubi ban ten tau trong \Tong ngay giao hang da thoa thuan Neu tau ma nguoi mua chi dinh kh6ng tai vao ngay hoac truac ngay (7) va (6) ngubi ban c6 thd to dua hang vao kho ngoai quan tai cang theo Hop (long nay. Trong truerng hop nay, ngikii ban phai thong bao cho ngubi mua toan b0 tinh hinh cua viec giao hang vao kho ngoai quan. Toan b0 cac chi phi phat sinh do phai giao hang vao kho, bao gom nhimg kh6ng chi gidi han Cr chi phi luu kho va bao him se do ngirbi mua tra (') tilt&

T (1) en ctia cac phy luc qui dinh ye hang h6a D (2) ieu kien Incoterms de thoa thuen (2) Ngay giao hang de thoa thuen (4) Eqa diem giao hang de thoa thuen

s (5) 6 ngay N (6) gay tau den T (7) en cang gal hang

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5.3. Cac ky hiOu van tai va bao goi hang (Ghi dui: qui dinh sau day chi la vi du) Tren mat cila arng kien hang giao theo Hop &Ong nay phai &roc ghi: s6 hieu cua kien, cac kich thu6c cua kien, trong Wong toan phan, trong luong tinh, vi tri de cau, s6 cila L/C, cac to "de theo canh thing, x'eP der than trong, gift khO va ky hieu:
(I)

Hang hod phai cluoc bao goi bang va phai ducic bao ve ch6ng cac va dap trong b6c xe.p va van chuyen . Ngueri ban phai chiu trach nhiem phap ly ve bat kjf tdn that hoac hu hong nao dm hang hod do bao bi khOng phii hop hoac c6 khuye't tat
(2)

5.4. Xily bao bi (diesu khocin nay chi ap dung tai CHLB Dike) Trach nhiem xir ly bat cu loai bao bi nao cling thuOc ve ngtred mua. 6. Thong bao giao hang (Ghi chit: di ett khocin nay Op dyng rOng hang dttqc ti hanhnu'dc tigadi ban). cho cac dOng ma viec giao

Ngay khi giao hang, ngued ban phai th6ng bao cho ngueri mua ve viec giao (4) hang bang (3) Thong bao nay bao gom 7. Giam dinh trudc khi giao hang 7.1. Giam dinh bai ngutri mua Ngued mua c6 the, voi quyen lua chon cira mInh, giam dinh truck khi giao hang, It nhat (5) ngay thkrc su giao hang, ngkred ban phai thOng bao cho ngued mua hoac bat cu dai dien nao do nguoi mua chi dinh rang hang hod Et san sang de giam dinh. Ngkred ban phai cho phep tieP can hang hod cho muc dich giam dinh tai tiled diem hop 17 &roc thoa thuan bOd cac ben (Ghi chkl: cac yeu cau hai quan ve nhap khau vao Indonesia va Philippines dOi hOi phai c6 giam dinh cua SGS trudc khi gui hang to ntrecc ngued ban. Dieu khoan sau day dung cho cac hop &rig xuat khau sang cac nudc nay)
(1)

1V hiOu van tal



(3) (4) (5)

ThOng thuting bang Fax

IMO to bao bi clOi hoi

Danh sach cac tai lieu va (hang tin you cau

S6 ngay

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7.2. Giam dinh bat dich vu gicim dinh (I) dei hai c6 giam dinh hang Cac ben hieu rang nhap kliSu vao hod bai SGS truot khi gui hang tir nuOc ngtred ban. Ngtred ban dOng y hop tac'hoan toan vai SGS trong viec tao dieu kien tie') can va dot duoc cac th6ng tin can thiet ve hang hod cho muc dich giam dinh nay 8. Giao hang sOrn, giao tang phin, giao hang clam
8.1. Giao hang thin (Ba dieu khoan phy sau dciy la co the' thay the cho nhau, co the bo dieu khocin khong can titter).

1. Giao hang som la kh6ng diroc phep theo Hop dong nay (2) la duqc phep, tuy nhien thanh man se 2. Giao hang sem truck khong duct tien hanh au& so \Teri ngay da thoa thuan trong Hop dong nay (2) la duqc phep, trong truung hop nay, thanh 3. Giao hang Om triroc toan se loc tien hanh nhu truOng hop ngay thuc six giao hang la ngay nhu da thoa thuan trong Hop dOng nay 8.2. Giao hang titng phiin (Hai dieu khoan phu sau day la c6 the thay the cho nhau, c6 the 136 dieu khoan khOng can thiet) 1. Giao hang tang phan la khO.ng &roc phep theo Hop dong nay 2. Giao hang tang phan la duqc phep theo Hop dong nay, theo su thoa thuan cUa ca hai ben, tuy nhien bat cd chi phi nao Oat sinh cua giao hang tang phan se do (3 ' chiu 8.3. Giao hang cham Troir truing hop giao hang cham do cac nguyen nhan ngoai nguyen nhan bat kha khong nhu duoc neu trong dieu khoan 17 sau day, ngirCri ban phai thanh toan (4' % tri thiet hai qui ra tien va khong phai la tien phat, met so tier' bang (4) % khoan gia so hang chu'a giao cho moi ngay giao cham, tai da bang tien c6 the &pc thanh toan theo dieu 9 dudi day. Thanh toan thiet hai qui ra tien phai duoc lam ma khong can ngueri mua cung cap cac bang chang ve bat kS/ t6n that, thiet hai hoac thirong ton nao

T (1) On nutic S (2) 6 ngay

Nguti ban/ngutri mua (4) S6 cu the


(3)

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(Hai dieu khoan phu sau day la c thd thay thd cho nhau, co the be diet' khoan khOng can thidt) 1. Viec thanh toan thiet hai qui ra tien phai thoa man day dit va hoan toan bat ctr khidu nai nao cua ngtroi mua Mit viii ngugi ban, phat sinh tir hoac co lien quan ddn giao hang cham cita bat ky hang hoa nao. Dac biet, ngubi ban se khOng phai chiu trach nhiem phap 15, d6i viii bat ky ton that gian tiep hoac ton that hau qua ilk), nhir &roc neu trong muc 2.7 trong Hop ding mau, phat sinh tir hoac c6 lien quan den giao hang cham cita bat ky hang hod nao 2. Viec thanh toan thiet hai qui ra tier' cua ngued ban se kh6ng loci bO viec ngu6i mua tim kidm den bit thiet hai tir ngugi ban cho bat ky ton thgt, hu hOng hoac thiet hai tir ngugi ban cho ba ky ton that, hu hong hoac thiet hai nao phat sinh tir hoac c6 lien quan ddn giao hang cham cita bat ky hang hoa nao. Dac biet, ngtroi mua se c6 quy6n doi boi thugng tir ngu6i ban d6i viii bat ky ton that hoac thiet hai titkrc tiep hoac gian tiep nao, bao gom nhung khong gigi han ii ton that hai nhuan, thiet hai sir dung hoac ton that hop ding, phat sinh tir hoac c6 lien quan cldn giao hang cham dm bat ky hang hod nao. Tuy nhien, cac thanh toan duoc lam nhu thanh toan thiet hai qui ra tier' se dugc bit trir vao bat ky den bit thiet hai ma ngtrai ban phai thvc hien d6i viii viec giao hang cham cita bat ky hang hoa nao
8.4. Chdm dial hop (tong do giao hang ch4m

Trong truing hop ngugi ban cc') trach nhiem thanh toan s6 tien t6i da cho cac thiet hai qui ra tien nhu qui dinh trong muc 8.3 cita hop ding mau, khi do viec giao hang cham se duoc coi nhu vi pham hop (long va nguOi mua, sau khi th6ng bao cho ngugi ban biet, co thd cham dirt Hop ding va/hoac tim kidm bat ky bien phap khac phuc nao

9. Gia
Gia cua hang hoa se &roc giao theo Hop MI-1g nay IA
(I)

(2)

10. Cac di6u kien thanh toan

Thanh toan se &roc lam bang tin dung thu co xdc nhan, khOng hu5, ngang. (3) Ngtrgi mua se m& tin dung thu vao hoac tarot
viii cac dieu kien da thoa thuarr boi hai ben va duoc dua vao phu luc cila Hop
Loai fief) vg s6 tien (2) 6 tien va logi tien viec bgng chi? S (3) gay ma tin dung N
( I)

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dOng nay, xem phu luc

(I)

Hop dung nay se kh6ng c6 hieu luc theo diet' 16 dugi day, cho den khi ngugi ban nhan dugc thong bao rang tin dung thu da dugc mo vad ten ngued hugng lgi IA ngugi ban vi ngtrgi ban chic chin rang cac dieu kien dia tin dung thu la tuan thu dung nhung gi hai ben di thoa thuan. Bat kS/ su khac biet nao gala cac dieu kien di" thoa thuan bed cac ben vOi tin dung thu cid mg se phai dugc ngugi ban th6ng bao ngay lip tut cho ngued mua

11. Giam dinh hang hoa


11.1. Nghia vu girim Binh vd thOng brio su khric biOt Nguai mua se Om dinh hang hod khi cluing tad dia diem den. Neu hang hod kh6ng tuan thU vgi Hgp &Ong hoac ve chit lugng hoac so lugng, ngugi mua se phai thOng bao ngay lap flit cho ngugi ban ve bit kSi su khac biet nao 11.2. KhOng thOng brio sic kinic biet

Neu ngugi mua kh6ng th6ng bao cho ngued ban ve bit kS, sty khac biet Liao trong vOng (I) sau khi hang tgi, hang hod se dugc coi la phi' hop vgi Hop dung khi ddn
11.3. Cac quyen cita ngnai mua trong twang hap c6 khac biet vi sr). Wong Neu c6 khac biet clang ke ve so lugng va ridu dieu nay dugc th6ng bao tgi ngugi ban kip tiled, ngugi mua tuST y cna minh va theo muc 8.2 tren day c6 the lam mat trong cac diet' sau: a) Chap nhan phan hang da giao va yeu cau ngugi ban giao phan hang con lai. Hoac b) Chip nhan phin hang da giao va huy 1)6 phin hang con lai dm hop dung nhung phai thOng bao kip thgi cho ngueii ban Neu co bit kj/ khac biet clang kd ve so lugng hang hod nao nhu va neU khac biet do da dugc thOng bao (2) kip theci cho ngugi ban, ngured mua c the tuST a) Chip nhan mgt trong cac giai phap mO to tren day trong dieu khoan nay, hoac
S (1) 6 ngay (2) o to khac biOt cc ban M

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b) Tir ch6i phan hang hod da giao va yeu cau ngubi ben ban hohn tra toan bo s6 tien da thanh toan cung nth" cac chi phi lien quan den thug hai quan, nhan hang, thong quan, bao him hoac ltru kho hang 11.4. Ccic quyin caa ngtroi mua trong tritertig hop c6 khcic biet ye chat litong. (Dieu nay c6 the' khong can thief c6 giam dish cfia SGS fru& khi gui hang). C_ac khac biet ve chat luting se dugc xem nhu la cac khuy& tat va se lam phat sinh cac khieh nai theo dieu khoan tnich nhiem phap ly ye khuy& tat trong Hop clang nay, dieu 12 dueri day Tuy nhien, khac biet co. ban ve chat luting se cho phep ngubi mua quyen tit ch6i toan 1)0 hang hod hoac mot phan va yeu cau ngubi ban hoac tra lai s6 tien da' thanh toan cho phan hang hod khOng chap nhan ding nhu cac chi phi lien quan den thn6 hai quan, nhan hang, th6ng quan, bao hiem hoac luu kho hang cila phan hang hod khong diroc chap nhan 12. Trach nhiem phap ly ye khuyet tat 12.1. Trcich nhiem phap ly ctia nguai ban ve khuyet tat ctia hang hod Ngubi ban dam bao rang cac hang hod dirgc cung cap theo hop clang nay tai ngay giao hang se: a) Khong c6 khuy& tat ve vat lieu, b) KhOng c6 khuy& tat do nhan cOng c) KhOng c6 khuyet tat tiern an trong thi& k6, bao gam nhung khOng gied han & viec lua chon vat lieu, va se phii hop cho muc dich sir dung thOng thueng cila hang hod Bat ky khuy& tat nao co thd chang minh duot trong bat ky hang hod nao xuat hien trong th&i hieu trach nhiem phap ly ve khuy6t tat, ngubi mua se thong bdo ngay lap tuc cho ngirbi ban. Ngubi ban, khOng cham tre, se bang rUi ro va chi phi cUa minh, thy y sira chita hoac thay the hang hod do hoac lam cho het khuyet tat Trach nhiem phdp ly cua ngtrbi ban ve khuy& tat dm hang hod phu thuOc vao viec ngirbi mua c6 tan trong triet de tat di cac thU tuc va chi don ap dung cho
(I)

dm hang hod va r6 rang ngoai tar cac hu hong do hao mon binh thubng hoac sir dung sai sau khi giao hang 12.2. Thai hieu phcip ly ire khuyet tat
Cac dieu kian sir dung nhu hru kho, gp dat, sir dung hoac van hanh..

(1)

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Nguai ban se chiu trach nhiem phap ly ve khuy6t tat xuat hien trong thai gian (2) (') ngay, tinh tir ngay Trong truing hop khuyet tat xuat hien sau khi het thai han nay, nguai mua se khOng c6 quyen khi6u nai nguai ban ve khuyet tat bat kS/ nao Thai hieu trach nhiem phap 13i ye khuyet tat se &roc keo dai them bAng thai han ma nguai mua khOng the sfr dung duac hang hod do khuyet tat. Tuy nhien, n6u hang hoa mai duac chuye'n d6n dd thay th6 hang hod c6 khuy6t tat, thi thai hieu trach nhiem phap 13i ve khuy6t tat se khOng duac bat dau lai vai hang hod thay the 12.3. Gi6i han trach nhiem phdp ly ye khuyet tat cad hang hod (Hai dieu khoan sau day la thay the cho nhau) 1. Nghia vu sna chna va thay the hoac bang cach khac lam hang hod h6t khuy6t tat chi la trach nhiem cna nguai ban trong twang hop giao hang hod c6 khuy6t tat. Dac biet, nguai mua khOng c6 quyen dei boi thuang tir nguai ban cho bat k37 thiet hai hoac ton that gian tiep nao nhu net' trong muc 2.7 tren day, phat sinh tir hoac c6 lien quan den giao cac hang hod c6 khuyet tat 2. Nguai ban se den bit va tranh cho nguai mua khoi bat 14 thiet hai hoac t6n that nao phat sinh cho du la true tiep hoac gian tiep do hau qua ciia hang hoa hong hoac c6 16i, duac giao bei nguai ban Trong twang hop khuy6t tat xuat hien sau khi ket thdc thai han nay, nguai ban se khOng c6 trach nhiem phap ly dai vii nguai mua, va dac biet khOng co nghia vu tra lai lien hoac bat kS/ phan tien nao da thanh town

13. Trach nhiem phap ly doi vol ben thin ba


(Hai 1. Ben khoan sau day la thay Meal nhau)
(4)

(3) se den bu va tranh cho ben khei bat kji thiet hai nao, chi phi hop ly, phi t6n hoac phi thn tuc nao trong truing hop co hanh Ong phap 13i hoac kien cao nao cna ben thd ba ve bat kS , thiet hai, ton that hoac hu hong nao gay ra boi hang hoa duqc giao theo Hop dung nay. Trong (3) se thOng bao ngay lap tdc cho ben truing hap c6 kien cao, ben (4) trong viec ti6n hanh (4) va se hop tic day du vii ben bat k3/ hanh clOng phap 13i can thi6t nap

(1)

S6 ngay

Ngay b6t dau cUa thai hiOu trach nhiem phap ly ve hu hong (3) On se Oaf den bb (nguti ban hoac ngudi mua) B B (4) en se nh'an den bit (ngtrai ban ho0c ngt.rdi mua)

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2. Trong truing hop c bat 14 hanh Ong phap ly hoac kien cao nao b6i ben thd ba ve bgt ky thiet hai, ton thgt hoac hu hong nao gay ra cho ben thti ba bai khuySt tat cila hang hod duqc giao theo Hop &Ong nay, ben bi kien se phai chiu toan 1)0 cac chi phi thiet hai phat sinh tir vu kien do 14. Thu6 Tgt Ca cac thuS thu nhap, thuS tri gia gia tang, thuS hai quan, thus hanh nghe hoac cac chi phi khac dugc qui Binh chinh phi'', co quan chinh phu hoac cac nha civic trach Wang throng se hoan man do ben thuOc d6i arcing thu thuS cua cac ca quan tren chiu 15. Giao quyen va uy quyen thtrc hien nghia vu Giao quyen Ira Uy quyen thkrc hien nghia vu Cac quyen lo'i theo hop (long nay khong the clugc giao hoac cac nghia vu cua Hop (long khOng the cluqc uY quyen bOi bgt dr ben nao ma kh6ng CO sty Ming Y bang van ban dm ben kia Skr giao quyen Ira ttYr nhiem giao trqc Cac quyen theo Hop Ming nay khong the cluot giao hoac cac giao trac khong the duqc uy quyen bOi mot ben ma khong c6 sty ding yr bang van ban dm ben kia 16. LEO luc cua Hap d6ng Hqp ding nay se trO thanh c6 hieu 1krc sau khi cluqc hai ben ky va sau khi : a) NgtrOi ban nhan duqc thOng bao cua ngan hang dia minh ve viec thu tin dung da duqc mar phil hop vii cac diet' kien cua dieu 10 tren day; b)
(1)

c. Co su cho phep, gigy phep, su chuan y ch.rqc cap bad bgt kyr ben thtk ba nao hoac cac tai lieu khac duqc yeu cau de thkrc hien dung nghia vu cua m6i ben theo Hop ding nay Nell Hop (long kh6ng the tro thanh c6 hieu lkrc trong vOng (2) ngay

(1) ift ke cac dieu kiOn phai thuc hiOn trutc khi Hop d6ng tr& thanh co hieu /kit L (2) 6 ngay S

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sau khi c6 chit 14 dm ca hai ben, met ben c thd chain dirt hop &Mg sau khi thOng bao cho ben kia
17. Bit khi kiting

Neu met trong hai ben bi ngan can, hoac bi cham trd trong viec thuc hien bit ky nhiem vu nao cua Hop Ming nay b&i cac sty kien nam ngoai tam kidm soat hop ly cua minh, chi su kien nay se duqc coi la bit kha khang, va ben nay se khOng dugc coi la c6 loi va khOng phai chiu bit dr tranh nhiem nao vai ben kia theo Hop dong nay
(Plan sau day chi vi du, can sita doi cho phi) hop)

Cac su kien bit kha khang bao gdm, nhung kh6ng giai han chi& tranh (cho du co tuyen b6 hay khOng), bao Ong, khai nghia, cac hanh Ong tdy chay, hoac tuong tit, dinh cling, hoac tinh hinh quay r6i cua chInh phil; cham trd do viec hanh clOng hoac kh6ng hanh Ong cua chinh phu, hoac 1)&14 hanh Ong dm bit ky Ong ty giarn dinh nao; chay, nd hoac cac tai nan khOng tranh khoi khac; lit lut, bao, clOng dat hoac cac hoan canh to nhien khOng binh thuong khac
( Phdn sau day ye cac sit kien khong phdi Id bat khd khang va Id tuji

Cac su kien bit kha khang khOng bao gdm sr kien sau:
(I)

1\16u met trong hai ben bi ngan can tir hoac chant tit trong viec thuc hien bit ky nhiem vu nao oh Hop &Mg nay, thi ben do phai ngay lap tdc thong bao cho ben kia ye su kien, nghia Vu se bi anh huding, va thqi han du anti ma su kien keo dai Ne'u bit 14 su kien bit kha khang nao ngan can hoac lam cham tre viec thuc (2) ngay, mot trong hai hien bit 14 nghia vu nao oh Hop d6ng nay lion ben co thd cham dirt Hop &Ong sau khi thong bao cho ben kia Neu mot ben bi ngan tr .& bi cham trd trong viec thuc hien bit ky nghia vu nao theo Hop &Mg nay bai bit ky su kien nao ma kitting thd du doan throe hoac c thd du doan truac nhung khOng thd tranh duqc, thi su kien nay duqc coi la bit kha khang, va ben do se kh6ng bi coi la c6 lOi va se khOng co giai phap nao du quy dinh theo Hop dong hay bang cach nao do clanh cho ben kia

Danh sach cac str kiOn cluvc coi la "khOng bit kha khang"
(2)

S6 ngay

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18. Ch6m dirt va ht4 1)6 tiny (long ThOng bao cham dirt va huY b6 Hop (long nhu &roc neu trong muc 2.9. tren day phai dugc lam bang van ban theo quy Binh cUa diet' 22 dugi day va se co hieu luc sau (I) ngay ke tir khi nhan duqc thOng bao b&i ben dugc thOng bao Trong trugng hop cham dirt Hop (ong, nghia vu cua cac ben se ket thtic vao ngay cham dill Hop &Ong. Cu the, ngugi ban se nhan toan 13.6' sg.tien theo gia cita bat ky hang hod nao cla dugc giao va diroc chap nhan b&i nittai mua. Cdc dieu khoan dm Hop diing nay ve trach nhiem phap ly ve khuyet tat, trong tai va cac dieu khoan can thiet khac de giai guy& bat ky tranh chap nao phat sinh sau khi cham dirt Hop dgng van con gid tri 19. laOng c hieu Itrc tong phAn Neu bat ky diet' khoan nao hoac cac diet' khoan nao cita Hqp dgng nay la khOng c6 hieu luc hoac tr& thanh khOng co hieu luc, thi diet' nay se khOng anh hung tai cac dieu khoan khac. Ngoai ra, cac ben cl6ng y thay the bat ky dieu khoan kh6ng hieu luc bang met dieu khoan mai c6 hieu lirc vai ding muc dich nhu dieu khoan da thay the 20. Sim doi va tir bo Viec sira clgi cac dieu kien va dieu khoan cUa Hop cl6ng nay phai la rang buOc ca hai ben, tham chi khOng can diet' kien, neu viec sira ddi dugc lam bAng van ban, ditoc ky va duo'c neu ro la mgt ban sira dgi dm Hop &lig nay Bat ky su tir bo mgt quyen loi nao theo Hop (long nay deu la rang buOc doi vgi ben dua ra tir 1)6, tham chi khOng can dieu kien , neu viec to b6 dugc lam bang van ban, clugc ky va dugc neu rO la mot su tir 1)6 quyen lgi cid &roc qui Binh trong Hop clOng 21. NgOn ngir NgOn ngir cua Hop cliing, ciia tat ca cac chirng tir hop dong khac, cita tat ca cac thu tin va cac thong tin khac gida cac ben deu phai bAng tieng Anh 22. Tilting bao Cac thong bao cua mot ben cho ben kia theo Hop long nay se &roc lam, &du tien bang Fax, sau do se gin qua bun dien bang thu dam bao

(1)

S6 ngay

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Ngay hieu luc caa thOng bao se IA ngay nhan dugc ban Fax. Tuy nhien, trong truing hop c6 tranh chap ve viec nhan ban Fax, ngay hieu luc se IA ngay nhan dugc th6ng bao bang thu dam bao hoac 7 ngay sau khi gin thu dam bao, tuST theo su kien nao xay ra som hon Du cho c6 qui dinh nhu tren, moi thOng bao dugc chuyen va dugc nhan qua phugng tien van ban nhu dien tin, telex, thu tir, hoac dugng buu dien bInh thugng se dirgc coi IA thOng bao c6 hieu luc theo Hop dor -1g nay Cac thOng bao se phai dugc gui tgi cac dia chi va s6 Fax nhu sau: Ngtriti ban : Dia chi Fax NgtAri mua Dia chi Fax Bat kji su thay d6i nao cira so Fax, hay dia chi se phai dugc thOng bao theo Hop (long nay 23. Giai guy& tranh chap Tat ca cac tranh chap phat sinh fir Hgp dong nay cugi cang se phai &pc giai quy6t theo cac nguyen tic ve hoa giai va trong tai cua Ph6ng Thuong mai qua trinh, bed (I) trong tai dugc chi dinh theo cac nguyen tic tren day Dia diem trong tai se la Anh. (2) NgOn ngit cua trong tai IA tiOng

(Ba diet' khoan phu sau day la thay the cho nhau) a) Trong truing hop sir dung trong tai, m6i ben chiu cite chi phi caa mInh b) Trong truing hop sir dung trong tai, trong tai se phan quyet phan chi phi ma m6i ben phai chiu c) Trong truing hop sir dung trong tai, ben thua se phai chiu toan b0 cac chi phi trong tai Cac ben thoa thuan rang bat kS/ phan guy& nao theo qui dinh caa dieu khoan nay se la chinh thilc va rang buOc ca hai ben

S (1) 6 Itigng trong tai vien T (2) en thanh phi se dien ra trong tai

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Dieu khoan thi hanh


Cac ben tuan thu theo phap luat., 14 Hop don nay vao ngay va tai dia didm ghi sau day: Dai dien cho ngtrai ban: Chtic vu: Ngay: Dia diem: Dai didn cho ngutsi mua: Chtic vu: Ngay: Dia didm:

(Cdc 11401 cfia ccic tutor khong doi hdi phdi -vac nheitz chi? /4)

Chit 14 cim dai dien ben ban

Chit ky au dai dien ben mua

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3. MODEL CONTRACT FOR THE SALE OF GOODS AND THE CIVIL CODE OF VIETNAM The arc three main types of contract under CCVN (see appendix 2 for the English and Vietnamese versions). Sa'es/Procurement Contract (( 421-442) Contract to Manufacture ((( 550-561) Contract for Services ((( 521-529)

The model Contract is a pure Sales Contract - an exchange of "assets" for "money". In the following parts some principal clauses from the model Sales contract are compared with the stipulations regarding civil contracts by the civil code of the Socialist Republic of Vietnam with a view to offering the reader an insight into the subject - matter.

3.1. Structure of the Model contract What you should know before reading the contract
Preamble Clause 1 : Applicable Law Clause 2 : Definitions Clause 3 : Entire Agreement and Contract Documents

What the Buyer will get


Clause 4 : Scope of supply

How the goods will be supplied


Clause 5 : Delivery Clause 6: Notification of Delivery Clause 7: Inspection before Shipment Clause 8: Early Delivery, Partial Shipment, and Delay in Delivery

What the Buyer will give


Clause 9: Price 369

How the Buyer will pay Clause 10: Terms of Payment What if the goods are not as ordered ? Clause 11: Inspection of the Goods Clause 12: Defects Liability Liabilities outside the contract Clause 13: Liability to Third Parties Clause 14: Taxation The legal status of the contract Clause 15: Assignment of Rights and Delegation of Duties Clause 16: Coming Into Force Clause 17: Force Majeure Clause 18: Termination Clause 19: Partial Invalidity Clause 20: Modification Clause 21: Language Clause 22: Notices Clause 23: Settlement of Disputes Execution Appendices

3.2. Interpretation of the Contract under CCVN

Article 135. Interpretation of Civil Transactions 1. The interpretation of a civil transaction must be based upon the actual desire of the parties at the time of establishing such transaction an on the objectives of such transaction. 2. Where a civil transaction may be interpreted as having different meanings, the civil transaction must be interpreted in accordance with a meaning consistent with the objective of the transaction, and 370

shall be in accordance with the customs of the place where the transaction was established. If the party which is economically stronger includes in the civil transaction points which are disadvantageous to the weaker party, the interpretation of the civil transaction must be such that favors the weaker party. Article 408. Interpretation of contracts: 1. If a contract contains unclear provisions, the interpretation of such provisions shall not only rely upon the wording of the contract but also shall be based upon the common intentions of the parties. 2. If a clause of the contract susceptible of many meanings, the meaning which would allow the implementation of the clause to most benefit of the parties shall be chosen. 3. If a contract contains a wording with many different meanings the contract shall be interpreted according to the meaning which best conforms to the characteristics of the contract. 4. If a contract contains clauses or words which are difficult to understand, those shall be explained according to the customs at the appointed place for the execution of the contract. 5. When a contact lacks some provisions not belonging to the essential substance, the contract shall be supplemented according to the customs in regard of such types of contracts at the appointed place for the execution of the contract. 6. The clauses of contract shall be interpreted in relations to each other so that each is given the meaning derived from the contract as a whole. Remark: Where rules of interpretation allow the court a great deal of freedom, the parties should be as precise as possible.

3.3. Applicable Law of the Contract under CCVN. Article 834: Civil contracts 1. Forms of civil contracts shall be governed by the law of the country where contract are concluded. The contracts that are concluded in a foreign country with violations of law governing forms of contracts shall be valid in Vietnam if the form of those contracts does not 371

violate the law of the Socialist Republic of Vietnam. 2. The rights and obligations of parties in a civil contract shall be determined by the law of the country where performance of the contract takes place. The contracts that are concluded and performed wholly in Vietnam shall be governed by the law of the Socialist Republic of Vietnam. If the place of performance of a contract is not indicated, then the place of performance shall be determined by the law of Socialist republic of Vietnam. 3. The civil contract having immovable property in Vietnam as its subject-matter shall be governed by the law of the Socialist Republic of Vietnam.
Remark: Article 834 is in need of clarification by the courts.

3.4. Applicable Law of the Contract under the Model Contract.

1. Applicable law This contract, and all questions relating to its formation, validity, interpretation or performance shall be governed by the law of [Note: The subclause below is optional] This contract shall not include, incorporate or be subject to the provisions of the "United Nations Convention on Contracts for the International Sale of Goods.
Remark The Model Contract assumes freedom of contract in choosing an applicable law. It also allows for exclusion of the Vienna Sales Convention.

3.5. Scope of Contract: Technical Specifications

Notes for preparing the Technical Specification

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A set of prcise and clear specifications is a prerequisite for bidders to respond realistically and competitively to the requirements of the Purchaser without qualifying their bids. In the context of International Competitive Bidding (ICB), the specifications must be drafted to permit the widest possible competition and, at the same time, present a clear statement of the required standards of workmanship, materials, and performance of the goods and services to be procured. Only if this is done will objectives of economy, efficiency, and fairness in procurement be realised, responsiveness of bids be ensured, and the subsequent task of bid evaluation facilitated. The specifications should require all goods and materials to be incorporated in the goods be new, unused, and of the most, recent or current models, and that they incorporate all recent improvements in design and materials unless provides for otherwise in the contract ... Care must be taken in drafting specifications to ensure that they are not restrictive. In the specification of standards for equipment, materials, and workmanship, recognised international standards should be used as much as possible. Where other particular standards are used, whether national standards of the Borrower's country or other standards, the specifications should state that equipment materials, and workmanship that meet other authoritative standards, and that ensure at least a substantially equal quality than the standards mentioned, will also be acceptable. Source: World Bank Standard Bidding Document: Procurement of Goods. p. 65.
Remark: Technical specifications must be prepared to allow absolute certainty as to the scope of contract.

3.6. Legal Families and the Applicable Law

The total agreement between the parties is their written contract (the fish) plus the applicable private law (the water) In principle, the parties to a contract are free to decide the private law that will supplement their contract; i.e., the parties are free to choose the water their fish swims in. Each country has its own national law. These laws belong to one of three families. The Civil Law Family is legal systems based on codified laws. The aim is consistency and predictability. The judge applies the written law. 373

Examples: France, Germany, Spain. The Common Law Family: legal systems aimed at achieving the most just result in the individual case. There is no written law - only precedents to guide decision-making. Examples: England, United State, Malaysia. The Religious Law Family: legal systems based on Moslem principles. For contracts, these laws tend to adopt international common law or civil law principles. Examples are Saudi Arabia, Pakistan.

3.7. The Vienna Sales Convention


- The United Nations Conventions on Contracts for the International Sale of Goods (The Vienna Sales Convention) is the law of any country that adopts it. Where the Convention conflicts with existing national law, the Convention prevails. - The Convention applies to international sales only. - The parties to a contract can "opt out " of the Convention with a clause such as: This contract, and all questions concerning its validity, interpretation and performance shall be governed by the law of the Republic of Verbena. This contract shall not include, incorporate or be subject to the provision of the "United Nations Convention on Contracts for the International Sales of Goods". - Many questions about the meaning of the Convention must be answered in the courts. So far the answers have been slow in coming. - Even so, the importer might wish to accept the Convention if the law applicable to the contract is weak or underdeveloped, or if it favours the seller too strongly.

3.8. Requirement to provide a User's Guide.


Article 435: Obligations to provide information and User's Guide. The seller is bound to provide the purchaser with necessary information on the assets sold, and guidelines for using those assets. If the seller fails to perform this obligation, the purchaser shall have the right to request the seller to perform the obligation. If the seller still does not perform it, the purchaser shall have the right to annul the contract and claim for compensation of damages.

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Remark: The buyer's right to annulment for failure to produce a user's guide would not normally be acceptable to a seller. 3.9. Transfer of Risk, Transfer of Title.
Article 432: Moment of Transfer of the Ownership 1. The ownership over purchased [items] shall pass to the purchaser from the moment when the purchaser receives the object, except for cases where parties agree or law stipulates otherwise. Article 43: Moment of Passage of Risk. 1. The seller party shall bear risks regard of the sold assets until the moment when assets are delivered to the purchaser, and the latter shall bear risks from the moment of receiving assets if parties have not agreed otherwise.

Remark: The concepts of "delivery" and "receipt" will require some definition by the courts. Under an Incoterm contract, both terms could mean delivery. 3.10. Transfer of Risk and Title under the Model Contract.
5. Delivery 5.1. Date, Place and Terms of Delivery The scheduled date of Delivery of the Goods shall be made Risk and title to the Goods shall pass from Delivery shall be the SELLER to the BUYER on Delivery.

Remark: Transfer of risk and title together is often the simplest arrangement. 3.11. Place of Delivery under CCVN and under the Model Contract.
Article 426: Place of Delivery of A: sets Parties shall agree upon the place of delivery of assets. If there are no

375

agreement on -this then the provision of Article 289 [residence or headquarters of Buyer] of this Code shall be applied. The place of Delivery under this Contract is 5

5. Agreed place of delivery. Note: In FOB, FCR, CIF and CIP (etc) contracts, this is the port/place of shipment.
Remark: Place of Delivery should be stated. In C-term contracts it is the port of shipment, not the port of arrival.

3.12. Time of Delivery under CCVN and under the Model Contract. Article 425: Time of performance of a Sale Contract

1. The time for performance of a sale contract shall be agreed upon by parties. The seller must deliver the assets to the purchaser at the time as agreed. The seller can deliver the assets before the fixed time only if the purchaser agrees. In cases where parties do not fix the time for delivery of assets, the purchaser shall have the right to request the seller to deliver assets and the seller shall have the rights to ask the purchaser to receive assets at any time, provided that parties shall inform each other within a reasonable period of time, and provided further that parties do not have other agreements. 2. If parties have not agreed upon a term of payment, the purchaser shall have to pay upon receipt of the assets 5. Delivery 5.1. Date, Place and Terms of Delivery Delivery of the Goods shall be made of Delivery shall be 4
Remark: It is essential to clarify the time of delivery. Late delivery has important financial consequences. The warranty period usually begins to run from delivery.

3 The scheduled date

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3.13. Force Majeure under CCVN and under the Model Contract.

Article 308: Civil liability due to breach of civil obligations.


1. The obligor, who fails to fulfil improperly the obligation, shall bear civil liability to the obligor. 2. The obligor, who cannot fulfils the obligation due to force majeure events, shall not bear civil liability, unless otherwise provided for by agreements or stipulated by the law

17. Force Majeure


If either party is prevented from, or delayed in performing any duty under this Contract by an event beyond his reasonable control, then this event shall be deemed force majeure, and this party shall not considered in default and no remedy, be it under this Contract or otherwise, shall be available to the other party.

[NOTE: The subclause below contains examples only. It should be Modified as necessary].
Force majeure event include, but are not limited to: war (whether war is declared or not), riots, insurrections, acts of sabotage, or similar occurrence's; strikes, or other labor unrest: newly introduced laws or Government regulations; delay due to Government action or inaction, or inaction on the part of any inspection agency, fire, explosion, or other unavoidable accident; flood, storm, earthquake, or other abnormal natural event.

[NOTE: The subclause below on - non - force Majeure events is optional]


Force Majeure events do not include If either party is prevented from, or delayed in, performing any duty under this Contract, then this party shall immediately notify the other party of the event, of the duty affected, and of the expected duration of the event. If any force Majeure event prevents or delays performance of any duty under this Contract for more than ... 2 days, then either party may on due notification to the other party terminate this Contract. Remark: Forced Majeure need details negotiation. 377

3.14. Penalties and Liquidated Damages under CCVN

Article 377: Punitive damages.


1. Punitive damages are measure that shall be applied by the agreement or the parties or by law to secure the fulfilment of an obligation by which the defaulting party must pay an amount of money to the injured party. 2. An agreement or punitive damages must be filed in an act which may be separated from including into the main contract.

Article 378: Rate of punitive damages.


The rate of punitive damages may be a certain sum of money or may be determinated by percentage of the value of the breached part of the obligation, but must not exceed 5%.

Article 379: Relationship between punitive damages and compensatory damages.


1. The parties may agree upon that the defaulting party shall have to pay only punitive damages but not compensatory damages, or both, either punitive damages and compensatory damages. If the rate of compensatory damages was not agreed upon in advance, the entire damages must be compensated. 2. If the parties have agreed upon the choice between punitive damages or compensatory damages, the right to choose shall be granted to the injured party. 3. In case where punitive damages rather compensatory damages have been agreed upon by the parties or stipulated by law, the defaulting party must pay only punitive damages. Remark: The 5% rate for punitive damages is stringent, but it is unclear. The possiblity of paying both compensatory and punitive damages is highly unattractive to the seller: few contracts will allow it. 3.15. Liquidated damages under the Model Contract 8.3. Delay in Delivery In the event of late Delivery for reason other than force majeures defined in Clause 17 below, the SELLER shall pay as liquidated 378

damages and not as a penalty the sum of <FIGURE> and of the value of the undelivered part per Day of late Delivery up to a maximum of <FIGURE> and of the Price payable Clause 9 below. Payment of liquidated damages shall be due without the BUYER having to furnish proof of any loss, damage or injury. [NOTE: The two subclauses below are alternatives.] Payment of liquidated damages shall constitute full and complete satisfaction of any claim of the BUYER against the SELLER arising from or in connection with late Delivery of any Goods. In particular the SELLER shall not be liable for any indirect or consequential loss or damage, as defined in Clause 2.7 above, arising from or in connection with late Delivery of any Goods. Payment of liquidated damages by the SELLER shall not preclude the BUYER from seeking compensatory damages from the SELLER for any loss, injury or damage arising from or in connection with late Delivery of any Goods. In particular the BUYER shall be entitled to compensation from the SELLER for any indirect or consequential loss or damage, including but not limited to loss of profit, loos of use or loss of contract, arising from or in connection with late Delivery of any Goods. However, payments made as liquidated damages shall be offset against any compensatory damages recovered from the SELLER for the late Delivery of and Goods. 8.4. Termination for Delay In the event that the SELLER becomes liable to pay the maximum sum payable as liquidated damages under Clause 8.3 above, then the delay shall be deemed breach of contract and the BUYER may, upon due notice, terminate the Contract and/or seek any other remedy available to him. Remark: In practice, few sellers will accept Alternative 2 which goes against the principle of liquidated damages.

3.16. Defective Delivery under CCVN

Article 428: Liability for delivery of assets in improper quantity


1. In cases where the seller delivers things in quantity exceeding that outnumbered the quantity which has been agreed upon, the purchaser shall have the right to refuse the excess, or to receive it and pay for it at agreed price. 379

2. In cases the seller party delivers things in quantity less than the quantity which has been agreed upon, the purchaser shall have either of following rights. a. To terminate the contract and request compensation for damages. b. To receive the quantity which was delivered and request compensation for damages. c. To receive what has been delivered and extend a period time for the seller to deliver the rest. Article 429: Liability due to Delivery of Incompleted Things. 1. In cases where things which have been delivered are not completed and thus causing the usefulness to be failed, the purchaser shall have either of following rights: a. To cancel the contract and request compensation for damages: b. To receive what has been delivered and ask the seller party to deliver components or parts which have not been delivered and to request compensations for damages and to suspend the payment the situation becomes complete. Article 430: Liability for delivery of things of the Wrong category. In case where the things have been delivered in improper affurtiment [assortment], the purchaser shall have either of following rights 1. To terminate the contract and request compensation for damages. 2. To receive what has been delivered any pay for it at the price as agreed upon by parties. 3. To request the seller to deliver thing in proper assortment and to compensate for sustained damages. Remark: The buyer's right to terminate is very hard on the seller. These clauses are (probably) disposive, however. Some wording on fundamental breach is necessary in the contract. 3.17. Defective Delivery under the Model Contract 11.3. Buyer's rights in the event of Discrepancy in quantity If a material discrepancy in quantity exists and is duty notified to the 380

SELLER, the BUYER at his discretion and subject to clause 8.2 above may either. a. Accept the delivered portion of the Goods and require the SELLER to deliver the remaining portions forthwith; or b. Accept the delivered portion of the Goods and terminate the remaining portion of the Contract upon the due notice given to the SELLER. If any material discrepancy in quantity exists such that <STATEMENT OF FUNDAMENTAL DISCREPANCY> and if such discrepancy is duly notified to the SELLER, the BUYER may at his discretion. a. Adopt either of the remedies prescribed in this clause above; or b. Reject the delivered portion of the Goods and recover from the SELLER all payments made to the SELLER as well as all costs, expenses and customs duties incurred by the BUYER in association with the shipment, movement through customs, insurance or storage of the Goods. 11.4. Buyer's rights in the event of Discrepancy in quality Discrepancies in quality shall be considered as defects and shall give rise to claims under the Defects' Liability provision of this Contract in Clause 12 below. However, a fundamental discrepancy in quality shall give the BUYER the right to refuse Delivery of the Goods in whole or in part and to recover from the SELLER all payments made for the unaccepted portion of the Goods as well as all costs, expenses and customs duties incurred by the BUYER in association with the shipment, movement through customs, insurance or storage of the unaccepted portion the Goods. Further a refusal to accept delivery in whole shall be considered termination under Clause 18 of this Contract and refusal to accept delivery in part shall be considered termination of that part of the Contract affected by such refusal.
Remark: The wording on fundamental breach is a necessary protection for the seller. It is essential for the buyer to be fair to the seller or he/she will simply refuse to do business.

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3.18. Defect liability under CCVN

Article 437: Guarantee of the Quality of Goods. 1. The seller shall guarantee the fitness and characteristics of things sold. If the purchaser discovers in the purchased things the defects which devalue it or decrease its fitness, he/she must immediately notify the seller thereof and shall have the right to request the seller to repair, the defect, or to replace the things with the defects, or to reduce price and to compensate for damages, if parties have not agreed otherwise. 2. The sale party shall guarantee that things sold are in accordance with description on covers, trademark or appropriate with the sample that has been chosen by the purchaser. 3. The sale party shall not be liable for defects in the following cases: (a) Defect that the purchase party has already known and must have known when buying. (b) Things at auction; things second hand trade; (c) The purchase party at fault of causing defect to things. Article 438: Warranty obligation The sale party shall have warranty obligation to things sold for a period of time to be called warranty period, if the warranty is agreed upon by parties or stipulated by Law. The warranty period shall be calculated from the time the purchase party has to receive things. Article 439. Right to request for [remedy of Defect under] warranty During the warranty period, if the purchase party discovers any defects on things, it shall have the right to request the sale party to repair things free of charge or to reduce the price or to exchange the things with defects for the others or to return things and receive back the money.
Rein ark: The correct word is "warranty" The warranty period appears to run forever unless otherwise regulated by the contract. The buyer has the right to choose the remedy which is grossly unfair to the seller.

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3.19. Defects' Liability under the Model Contract. 12. Defects liability 12.1. Seller's Liability for defects The SELLER warrants that the Goods supplied under this Contract shall at the date of their Delivery. a. Be free defects in material b. Be free from defects in workmanship. c. Be free from defect inherent in design, including but not limited to selection of materials and be fit for the purpose for which such Goods are normally used. If any defect provably presented in any of the Goods, on the date of Delivery comes to light during the defects liability period, then the BUYER shall forthwith notify the SELLER. The SELLER, without undue delay, shall at his own risk and cost and at his discretion repair or replace such item or otherwise make good of the defect. The SELLER's liability for defects is subject to the BUYER having adhered to all procedures and instruction applicable to the .... of the item, and expressly excludes damages to the Goods caused by fair wear and tear or by misuse occurring after Delivery. 1.2.2. Defects' Liability period The SELLER shall be liable for defects which come to light during a period of days from After the end of this period, the BUYER shall have no right to raise claims of any kind against the SELLER for any defect in any Goods of the SELLER's supply. The defects' liability period shall be prolonged by the length of any period during which the Goods cannot be used by the Buyer because of a defect. However, if new Goods are delivered to replace defective Goods, the defects liability period shall not begin again on the replacement Goods. 1.2.3. Limitation of Defects' Liability. [NOTE: The two clauses below are alternatives. Delete as necessary] The duty to repair and replace or otherwise to make good defects is the only duty of the SELLER in the event of the Delivery of defective Goods. In particular the BUYER shall not entitled to compensation

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from the SELLER for any indirect loss or damage as defined in Clause 2.7 above, arising from or in connection with Delivery of defective Goods. The SELLER shall indemnify and hold harmless the BUYER against any loss or damage however arising whether direct or indirect which shall be suffered by the BUYER as the result of defective or faulty Goods delivery by the SELLER. 3.20. Payment under CCVN and the Model Contract Article 295: Fulfilling the obligation of paying money. 1. The obligation to pay money shall be fulfilled in full, according to the timelimit, at the appointed place and in the agreed upon procedures. 2. The money that must be paid shall be the Vietnamese Dong, except in cases where the law stipulates otherwise. Article 424: Price and Modes of Payment 3. Modes of payments shall be agreed upon by parties or stipulated by law. Remark: The requirement to pay all monies in Dong needs interpretation

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APPENDIX pm/ Luc


1. CONG IfOC VIEN 1980
UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS CONG LIOC CUA LIEN HIEP QU6C VE HOP BONG MUA BAN QUOC TE

The States Parties to this Convention:


Bearing in mind the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New International Economic Order. Considering that the development of international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States. Being of the opinion that the adoption of

Cac nutic thanh vien cua C6ng u'oc nay: Coi trong nhang myc tieu tong quat ghi trong cac Nghi quyal v6 thanh lap mot n6n trat ty' kinh to qu6c to mdi ma Dai hOi (long Lien hip Quoc cla chap nhan trong khoa hop bat thu'ong Ian thi:t sau. Xet thay vi8c phat trign thudng mai qu6c to tren cd se, binh clang, doi ben ding c loi la mot y6u t6 quan trong thiic day quan h8 hCtu nghi giaa cac qu6c gia. Cho rang vi8c chap nhan cac quy t6c thong nhat di'eu chinh cac m6i quan he trong mua ban hang hoa qu6c t6 co tinh Ten cac h8 th6ng )(a hQi, kinh to va phap ljr khac nhau se th6c day vi8c loaf trCt cac tra ngai phap ljt trong thudng mai qu6c t6 va se h6 tro cho vi8c phat tri6n thudng mai qu6c t6. Da thoa thuan nhCtng diem sau: PHAN MOT
PHAM VI AP DUNG VA CAC QUY DINH CHUNG Cholng I PHAM VI AP DUNG

uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade.
Have agreed as follows:

PART I
SPHERE OF APPLICATION AND GENERAL PROVISIONS Chapter I SPHERE OF APPLICATION

385

Article 1
(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (a) When the States are Contracting Stages; or (b) When the rules of private international law lead to the application of the law of a Contracting State. (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the appli-cation of this Convention.

Digu 1 1. COng utic nay ap dung cho cac hOp dong mua ban hang hoa Oita cac ben c try sa thuting mai tai cac qu6c gia khac nhau. a) Khi cac qu6c gia nay le cac qu6c gia thanh vien caa C6ng uttc, hoac b) Khi theo cac quy tec tu' phap qu6c to thi luat du'oc ap dung la luat cua nutic thanh vi8n Cong - Uric nay. 2. Si! kign cac ben c try sa thuting mai tai cac qu6c gia khac nhau kh6ng tit-1h clan ngu sy kin nay kh6ng xuat phet tit hop d6ng, tit cac m6i quan h8 da hinh thanh hoac vao thoi diem kji hop d6ng 2i giita cac ben hoac la tit vigc trao do th6ng tin giu'a cac ben. 3. Qu6c tich cua cac ben, quy chg dan stt hoac thuong mai coa hop ciong kh6ng du'oc xet toi khi xac dinh pham vi ap dung Cong Uric nay.

Article 2 This Convention does not


apply to sales: (a) Of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought. for any such use. (b) By auction. (c) On execution or otherwise by authority of law; (d) Of stocks, shares, investment securities, negotiable instruments or money; (e) Of ships, vessels, hovercraft Or aircraft; f) Of electricity. 386

Dieu 2 Cong utic nay kh6ng ap dung


vao vigc mua ban: a) Cac hang hoe dung cho ce nhan, gia dinh hoac not tro, ngoai trit khi ngoai ban, vao bat at luc nao trong thai gian kal hop trutic hoac vao thoi digm Tong, khong bigt hoac khong can bigt phei rang hang hoe da du'oc mua de sit dung nhu' thg. b) Ban dau gia. c) fig thi hanh luat hoac van Wen tliy thac khac theo luat. d) Cac c6 phigu, c6 phan, chang khoan dau tu', cac chiing tit luu thong hoac ti6n Ca. e) Tau thug, may bay va cac tau chay tren dem kh6ng khi. f) &On nang

Article 3 (1) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. (2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services. Article 4 This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with: (a) The validity of the contract or of any of its provisions or of any Usage; (b) The effect which the contract may have on the property in the goods sold. Article 5 This Convention does not apply to the liability of the seller for death of personal injury caused by the goods to any person. Article 6 The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions. Chapter II GENERAL PROVISIONS Article 7 (1) In the interpretation of this

Di6t.1 3 1. Du'oc coi la hop dong mua ban cac hop (long cung cap hang hoe se the tao hay sari xuat, neu ben dgt hang kh6ng c6 nghia vu cung cap phgn ldn cac nguyen lieu can thigt cho viec che tao hay san xuat hang hoe do. 2. Cong udc nay khong ep dung cho cac hop d6ng trong do nghia vu cue ben giao hang cho y6(.1 la phai thtic hien mot c6ng viec hoc cung cap cac dich vu khac Di61.1 4 C6ng udc nay chi di6u chinh viec k9 ket hop &rig mua ban va cac quyen va nghia vu cCia ngudi ben va ngudi mua phat sinh tit hop dong do. Tit tru'ong hop c6 quy Binh khac dtioc neu trong C6ng udc. Cong udc khong lien quan tdi: a) Tinh hieu luc cite hop dong, hogc cite bat di dieu khoan nao cite hop dOng, hogc bat I<S/ tap quart nao. b) Heu qua ma hop Tong c6 the c6 d6i vdi quy6n sa hat cac hang hoe de ban. Digu 5 Cong udc nay khong ep dung cho trach nhiem cite ngudi ban trong trudng hop hang cilia ngudi ban gay thiet hal vg than the hogc lam chgt mot ngu'di nao do. Digu 6 Cac ben c6 the loci b6 viec ap dung Cong udc nay hoec vdi digit kien Wan tho digu 12, c6 the lam trai vdi bat cit dieu kho6n nao cua Cong udc hay sCta d6i hieu lyt coa cac di& kho6n do. Chttong II CAC QUY DINH CHUNG Digu 7 1. Khi gi6i thich Cong udc nay, can chi 387

Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. (2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law. Article 8 (1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was. (2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be inaccording to the terpreted understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. (3) In determining the intent of a party or the understanding a reasonable person would have had, due consi-deration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have themselves, between established usages and any subsequent conduct of the parties. Article 9 (1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.

trong den tinh chgt qu6c 4 cua n6, den sit can thiet phi he) tro vigc dp dung th6ng nhgt Cong u'dc va tuan thei t ong thu'ong mai qu6c 2. Cac van lien quan den d6i Wong di& chinh cua Cong tkic nay ma kh6ng quy dinh thing trong Cong iroc thi se duoc gigi guy& chi& theo cac nguyen tic chung ma tit d C6ng tioc chtoc hinh thanh hogc ngu kh6ng c6 nguyen tic nay, thi chi& theo lugt duOc dp dung theo quy pham cOa to phap qu6c Digu 8 1. Nhgm phuc vu C6ng utic nay, tuyen b6 va cach xit su khac cua mot ben difoc gi6i thich theo clUng 9 dinh cua ho ngu bgn kia cid bit hogc kh6ng the kh6ng bigt y dinh ay. 2. Neu digm tren khong du'oc dp dung thi tuyen b6 cach xi( sit khac cOa mot ben du'qc giAi thich theo nghia ma mot ngu'di c6 l tit n6u ngutti do du'oc dgt vac) vi tri dig phia ben kia trong nhang hoar) cgnh tuong to cung se higu nht.1 the. 3. Khi xac dinh 9 mu6n dim mot ben hoc cach higu cua mot nguOi c6 19 tri se higu the nao, can phi tinh den moi tinh tiet lien quan, kg cg cac cuOc dam phan, moi thcfc 4 ma cac ben cid c6 trong moi quan h8 tifcrng hO cua ho, cac tap quan va moi hanh vi sau do cua hai ben. Digu 9 1. Cac ben bi rang bu6c la& tap quan ma ho cid thog thugn vg ID& cac thcfc Wen d clu'oc ho thiet Igo trong moi quan h8 tuong h6.

388

(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.

2. TrCt phi c6 thoa thuan khac thi c6 the cho rang cac ben kj/ hop dong c6 ngu j"/ ap dung nhCtng tap guar' ma ho da biet hoac can phai bigt va d6 la nhCtng tap guar' c6 tinh chat ph6 bran trong thtiong mai quoc to va du'oc cac ben ap dung mot cach thuting xuyen d6i \tali hop tieing tong chCing loai trong linh vut buon ban hCtu quan de dieu chinh viec kj/ kat hop dong d6.

Article 10 For the purposes of this


Convention: (a) If a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract; (b) If a party does not have a place of business, reference is to be made to his habitual residence.

Digu 10 Nham phut vu COng utic nay:


a) Neu mot ben c6 hon mot tru so thuting mai tra len thi tru sd thu'ong mai cCia ho se chtoc coi la tru scr nao do c6 m6i lien he chat the nhat dOi yeti hop Tong va d6i vdi viec thyc hien hop d6ng d6, co tinh toi nhCtng tinh hu6ng ma cac ben deu bit hoac deu dct doan du'oc vao bat kj/ luc nao trutic hoac vao thoi diem hop d6ng; b) Neu mot ben kh6ng c6 tru so thu'ong mai thi se lay not car tru thuting xuyen cua ho.

Article 11 A contract of sale need not


be concluded in or evidenced by writing and is not subject to any other requirements as to form. It may be proved by any means, including

Digu 11 Hop d6ng mua ban kh6ng can


phai du'oc kyr kat hoac xac nhan bang van ban hay phai tuan thu mot yeu cau nao khac ve hinh thCtc ctila hop dong. Hop d6ng c6 the du'oc chang minh bang moi cach, ke c6 bang nhCtng Idi khai cCia nhan chang.

witnesses. Article 12 Any provision of article 11,


article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article.

Di61.! 12 Eigt kj/ quy dinh nao coa Dieu


11, Dieu 29 , hoac phan thCt hai cCia Cong u'oc nay cho phep hop dong mua ban, viec thay d6i hoac dinh chi hop Tong theo sit thoa thuan cua cac ben hoac don chao hang va chap nhan don chao hang hay bat kj/ su' the hien ji chi nao cCia hai ben du'oc lap va kh6ng phai dud hinh thut vial ma dud bat kj/ hinh thitc nao se kh6ng &tic ap dung khi du chi mot trong s6 cac ben c6 tru sa thu'ong mai dat d nutic la thanh vier) cCia Cong utic ma nu'oc d6 da tuyen b6 bao 389

luu theo di6u 96 cUa C6ng LI& nay. Cac ben kh6ng du'oc quygn lam trai voi di6u nay hoec hieu 11:tc cUa no. Article 13 For the purposes of this Convention "writing" includes telegram and telex. Digu 13 Theo tinh thin cua C6ng tiac nay, diin bao va telex cOng du'oc coi la hinh that van ban.

PART II FORMATION OF THE CONTRACT Article 14. (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. Digu 14.

PHAN HAI KY KET HOP DONG

1. MOt de nghi kj/ kit hop clang giti cho mot hay nhi6u nguai xac dinh du'oc coi la mot chao hang ngu c6 do chinh xac va ngu no chi coy chi cilia ngaai chao hang mu6n ta' rang buOc minh trong twang hop c6 sit chip nhin chao hang do. MOt di nghi la du chinh xac khi no net.' r6 hang hoa va in dinh s6 lu'ong va gia ca mot cach trtic tiep hoic gian trip hoic quy dinh thd that xac dinh so

lu'ong va gia
(2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal. Article 15. (1) An offer becomes effective when it reaches the offeree. (2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. Article 16. (1) Until a contract is concluded, an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. 390

2. MOt de nghi guff cho nhang ngu'ai


kh6ng xac dinh chi du'oc coi la mot Jai mai lam chao hang, fru' phi ngu'ai di nghi di phat bi6u ro rang di6u trai lai.

Digu 15. 1. Chao hang c6 hi6u lut khi no tai noi nguai du'oc chao hang. 2. Chao hang du la loai chao hang co dinh, van c th6 bi huji ngu nhif th6ng bao ve vigc hay chao hang din nguai du'oc chao truac hoic ding lac vai chao hang. Digu 16. 1. Cho toi khi hop clang du'oc giao kit, nguai chao hang van c6 th6 thu h6i chao hang, ngu nhu th6ng bao vg viic thu hoi do tai ndi nguai daoc chao hang

trudc khi ngudi nay gill th6ng bao chap nhen chao hang. (2) However, an offer cannot be revoked: (a) If it indicates. whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or (b) If it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. Article 17. An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror. Article 18. (1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance. (2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise. (3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods 2. Tuy nhien, chao hang kh6ng the bi thu a) Neu no chi ro, bang cach an dinh mot thdi han xac Binh de chap nhen hay bang cach khac, rang no kh6ng the bi thu h6i, hoac. b) Neu mot cach hop ly ngudi nhen col chao hang la khOng the thu h6i cludc va de hanh dOng theo chi6u hudng do. Digu 17. Chao hang, du la loai c6 dinh, se mat hieu luc khi ngudi chao hang nhen du'oc thong bao vg vigc tit chi chao hang. Di6t.i 18. 1. MOt Idi tuyen b6 hay mot hanh vi khac dia ngudi dudc chao hang bleu 10 ski' &rig jt voi chao hang cau thanh im Ong hoac chap nhen chao hang. bat tac vi khong mac nhien c gia tri nhti mot sal chap nhen.
tit 2. Chap nhen chao hang c hieu khi ngudi chao hang nhen du'oc chap nhen. Chap nhen chao hang khong phat sinh hieu Itic neu su' chap nhen ay khOng du'oc gal tdi ngudi chao hang trong thdi han ma ngudi nay de quy dinh trong chao hang hoac neu thdi han do khOng du'oc quy dinh nhu'vey, thi trong mot thdi han hop ly, xet theo cac tinh tigt cue su' giao dich, trong do c xet den t6c d6 cua cac phu'dng tien lien lac do ngudi chao hang sit dung. MOt chao hang bang mieng phei du'oc chap nhen ngay trill phi cac tinh tigt bgt bu6c ngu'oc Iai.

3. Tuy nhien neu do hieu lut cua chao hang hoac do thkic tien de c giiia hai ben trong m6i quan he Wong 116 hoac tap quan thi ngudi ducic chao hang c the chtling to ski chap thuen cua minh bang cach lam mot hanh vi nao do nhti 391

or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph. Article 19. (1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other moditications is a rejection c f the offer and constitutes a counter-offs
(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance unless the offeror, without undue delay objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

hanh vi lien quan den viec giti hang hay tra tin chang han dO ho khong thong bac) cho ngu'di chao hang thi chap nhen chao hang chi c hieu Ivo tit khi nhimg hanh vi do du'oc thiic hien vdi dieu kien la nhi"..(ng hanh vi do phai du'oc thu'c hien trong thoi han de quy dinh tai diem tren. Digu 19. 1. MOt su phuc dap c khuynh hitting chap nhen chao hang nhu'ng c chaa dtring nhCIng diem b6 sung, bot di hay cac seta d6i khac thi du'oc coi la tit choi chao hang va cau thanh mot hoan gia. 2. Tuy nhien mot su phOc dap c khuynh Wang chap nhen chao hang nhu'ng c chilta dung cac dieu khoan b6 sung hay nhCing dieu khoan khac ma kh6ng lam bieti d6i mot cach co ban not dung cua chao hang thi du'oc coi la chap nhen chao hang, trif phi ngu'ai chao hang ngay lap titc khong bigu hien bang mieng de phan doi nhC.mg diem khac biet do hoac gal thOng bao ve su phan d61 cua minh cho ngt..rdi duoc chao hang. Neu ngu'ai chao hang khong lam nhti vey, thi not dung cua hop d6ng se la not dung cua chao hang vdi nhu'ng su sCta d6i neu trong chap nha'n chao hang. 3. Cac yeu t6 b6 sung hay sita d6i lien quan den cac di& kien gia c6 thanh toan, den pham chat va so luting hang hoe, dia diem va thoi han giao hang, den pham vi tech nhiem cua cac ben hay den su giai quyet cac tranh chap clu'oc coi la nhiTng di& kien lam !Dien d6i mot cach co ban not dung cua chao hang. Di6u 20.
1. Thai han de chap nhen chao hang do ngua chao hang quy dinh trong dien tin hay thu bat deu tinh tit luc bac &en du'oc giao de gifi di hoac vao ngay gal tren thu' hoac neu ngay do kh6ng co thi tinh tit ngay bu'u dian &mg dau ten bi thu. Thoi han de chap nhan chao hang

(3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.

Article 20.
(1) A period of time for aoceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time

392

for acceptance fixed by the offeror by telephone telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree. (2) Official holidays or non-business day occuring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-bussiness day at the place of business of the offeror, the period is extended until the first business day which follows.

do ngudi chao hang quy dinh bang diet. thoai, bang telex, hoac bang phtiong tien thOng tin lien lac khac, bet deu tinh tit thdi didm chao hang den vdi ngudi du'oc chao hang. 2. Cac ngay le chinh thitc hay ngay nghi viec. roi vao khoen thdi han du'oc quy dinh dd chap nhen chao hang kh6ng du'oc tri1 , khi tinh thdi han do. Tuy nhien, neu th6ng bao ve viec chap nhen chao hang khong thd giao tai dia chi caa ngudi chao hang vao ngay cu6i cung cua thdi han quy dinh bdi vi ngay cu6i cOng dO la ngay le hay ngay nghi viec tai noi cc') try sa thudng mai cila ngudi chao hang, thi thai han chap nhen chao hang se du'oc keo dai tdi ngay lam viec Tau tien ke tiep cac ngay do. Di6u 21. 1. M6t chap nhen chao hang muon mang cang c hieu ly'c cOa mot chap nhen neu ngudi chao hang th6ng bao mieng khong chem tre cho ngudi nhen chao hang hoac gCti cho ngudi nay mot thong bao ve viec do. 2. Neu thu' tit hay van ban khac do ngudi nhen chao hang giti di trong nhang dieu kien ma neu chuygn giao Binh thudng, no de den tay ngudi chao hang kip thai, thi sct chap nhen chem tre du'oc coi nhu' chap nhen den kip thai, frit phi ngudi chao hang ngay lap tilt thong bao mieng hoac giti th6ng bao bang van ban cho ngudi duoc chao hang biet ngudi chao hang coi chao hang ciia minh de het hieu Digu 22. Chap nhen chao hang co the bi huji neu thong bao Nie viec huji chao hang toi noi ngudi chao hang trudc hoac ding mot luc khi chap nhen c hieu Di6u 23. Hop d6ng duoc coi la de kji kgt kd tit luc sct chap nhen chao hang c hieu lut chigu theo cac quy dinh cCia

Article 21 (1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect. (2) If a letter or other writing containing a late acceptance shows that it has been seen in such circumstances that if its transmission has been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. Article 22. An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective. Article 23. A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance

393

with the provisions of this Convention. Article 24. For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention "reaches" the addressee when it is made orally to him or delivered by any other means to him personally to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.

Cong udc nay. Digu 24. Theo tinh than dia phan 11 C6ng Ltdc nay, mot chao hang, mot thong bao chap nhan chao hang hoac mot su' the" hien k chi nao cung bat du'oc chao &roc coi la "tali nor hang khi duoc th6ng tin bang Idi not vdi ngudi nay hoac &roc giao bang bat cif phu'ong tin nao cho chinh ngudi du'oc chao hang tai tru sal thuong mai cOa ho, tai dia chi Wu chinh hoac nau ho khOng c tru sal thu'ong mai hay dia chi bitu chinh thi gt:ti tali noi thudng tru caa ho. PHAN BA MUA BAN HANG HDA Chuang 1 NHIJNG QUY DINH CHUNG Digu 25. Wit ski vi pham hop d6ng do mot ben gay ra la vi pham co ban nau su' vi pham do la do ben kia bi thiet hai ma ngudi bi thret hai, trong mot chiing myc Bang kd bi mat cal ma ho co quygn chd doi ten co sal hop d6ng, tru' phi ben vi pham khong tien lieu du'oc hau qua do va mot ngudi c ljr tri minh man cung se khOng tier) li8u du'oc nau ho cung a vac) hoan canh Wong ty. Di6u 26. MOt Idi tuy8n be; ye vigc ht:ty hop &rig chi c hi8u lut ngu du'oc th6ng bao cho ben kia bigt. Digu 27. Bpi vi trong phan II cua Cong Ltdc nay kh6ng c quy Binh gi khac nen trong trudng hop, ngu thOng bao yeu cau hay th6ng tin khac da du'oc thud hi8n bai mot ben dia hop &rig theo phan Ill nay va bang mot ph 'ong ti'en thich hop vdi hoan canh, thi mot sit cham trg hoac lam Ian trong vi8c chuydn giao th6ng tin hoac st" th6ng tin

PART Ill SALE OF GOODS Chapter 1 GENERAL PROVISIONS Article 25. A breach of contract committed by one of the parties is fundamental if it result in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. Article 26. A declaration of avoidance of the contract is effective only if made by notice to the other party. Article 27. Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that

394

party of the right to rely on the communication.


Article 28. If, in accordance with the

khOng den ngudi nhen, cung sekhong lam ben d6 met quyan vien dan cac thong tin cue minh.
Di6u 28. Neu mot ben c6 quygn yeu

provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention.

cau ben kia phai thi hanh mot nghia vu nao d6 thi chieu theo cac quy dinh cua C6ng uoc nay, Toa an kh6ng lai bat buOc phai ra phan quyet buOc ben kia thut hien that st,t hop d6ng trit taking hop neu Toa an ra phan quygt do tren co sa luet nu& minh d61 vdi cac hop clang mua ban thong tU kh6ng do C6ng utic nay dieu chinh.
Digu 29.

Article 29.

(1) A contract may be modifed or terminated by the mere agreement of the parties. (2) A contract in writing which contains a provision requiring any modifitication or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.

1. MOt hop d6ng c6 the duoc sita d6i hay chgm dui bang thOa thuen don thugn giCta cac ben. 2. MOt hop d6ng bang van ban chth thing mot digu khogn quy dinh rang moi su' sita doi hoac them dirt hop d6ng phai &too cac ben lam bang van ban thi kh6ng thd bi sCia d6i hay chem dat theo thog thuen giCta cac ben dudi mot hinh thac khac. Tuy thien hanh vi cUa mot ben c the kh6ng cho phep ho difoc vien clan di6u khoan ay trong chitng mL.tc ngu ben kia can cu vao hanh vi nay...
Chucmg II

Chapter II OBLIGATLONS OF THE SELLER Article 30. The seller must deliver the

NGHIA VU CUA NGUOI BAN


Digu 30. Ngudi ban c6 nghia vu giao

goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.
Section I. Delivery of the goods and handing over of documents Article 31. If the seller is not bound to

hang, giao chang tit lien quan den hang h6a va chuyen giao quyen scs hitu vg hang hoa theo &nig quy dinh cita hop d6ng va caa C6ng udc nay.
Ilduc 1. Giao hang va chuya'n giao chang tit Digu 31. Neu ngudi ban kh6ng bat buOc

deliver the goods at any other particular place, his obligation to deliver consists:

phai giao hang tai mot not nhet dinh nao do, thi nghia vu giao hang cila ngudi nay la:

395

(a) If the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer; (b) If, in cases not within the preceding subparagraph, the contract relates to specific goods or unidentified goods to be drawn from a specific stock or to be manufactured or produced and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place: in placing the goods at the buyer's disposal at that place; (c) In other cases in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract. Article 32. (1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods.

a) Ngu hop &rig mua ban quy dinh ca vidc van chuygn hang hoa, thi ngudi ban phai g:ao hang cho ngudi chuyen cho dau Wen de chuydn giao cho ngudi mua. b) Neu trong nhitng tru'Ong hop kh6ng dirt lieu bai didm not ten, ma doi tu'ong cilia hop d6ng mua ban la hang dac dinh hoac la hang (long loaf phai du'oc trich ra tif mot kh6i 'Yong dy' tra' xac dinh hoac phai &roc chd teo hay sa'n xugt ra va vao luc ky 1(6'1 hop Tong cac ben da brat rang hang hoa da c hay da phai du'oc che teo hoac san xugt ra tai mot not nao do thi ngudi ban phai c nghia vy dat hang du'Oi quygn dinh doat dia ngudi mua tai nai do. c) Trong cac tru'ang hop khac, ngudi ban c nghia vu dat hang du'eri quydn dinh doat coa ngudi mua tai not nao ma ngudi ban co try so thu'ong mai vao thoi didm ky kgt hop Tong. Didu 32. 1. N& chigu theo hop dong hay C6ng utic nay, ngudi ban giao hang cho mot ngudi chuyen cha va nau hang kh6ng du'oc ca biat hoa mot cach 1'6 rang danh cho myc dich coa hop dong bang cach ghi ky ma hiau tren hang hoa bang cac chi:Mg chuyen cha hay bang mot cach khac thi ngudi ban phai th6ng bao cho ngudi mua bigtve vigc ho da gili hang kem theo chi dan vg hang hoa. 2. Neu ngudi ban co nghia vy phai thu

(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms to such transportation. (3) If the seller is not bound to effect insurance in respect of the carriage of

xgp vigc chuyen cha hang hoa, thi ho


phai ky ket cac hop Tong can thiet de' viec chuyen cha duoc thtic hien tdi bang cac phu'ong tian chuyen cha thich hop vdi hoan canh cu thg va then cac digu kian th6ng thu'ang doi vdi phu'ong thac chuyen cha do. 3. Neu ngudi ban kh6ng co nghia vy phai bao him hang hoa trong qua trinh

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the goods, he must, at the buyer's request, provide him with all availalble information necessary to enable him to effect such insurance.
Article 33. The seller must deliver the

hang chuyen cha thi ho phai cung cap cho mua, neu ngudi nay yeu cau, moi thong tin can thigt ma ho c6 the giup ngudi mua k9 1(6'1 hop d6ng bao hiem.
Digu 33. Ngudi ban phai giao hang:

goods: (a) If a date is fixed by or determinable from the contract on that date; a) DOng vao ngay giao hang ma hop dong da quy Binh hay c6 the xac dinh dudc bang cach tham chi& vao hop b) Vao bat kS' thdi diem nao trong khoang thdi gian disc hop dong an dinh hay c6 the xac dinh dudc khoang thdi gian giao hang bang cach tham chi& vao hop dong, ngu nhu. kh6ng the can cif vao cac tinh tigt de" Net ngay giao hang ma ngudi mua an dinh la ngay nao. c) Trong tru'ong hop khac, trong mot thdi han hop lj/ sau khi hop d6ng &roc kj/ kat.
Dieu 34. Neu ngudi ban c6 nghia vu

(b) If a period of time is fixed by or determinable from the contract at any time within that period unless circumstances indicate that the buyer is to choose a date; or

(c) In any other case, within a reasonable time after the conclusion of the contract.
Article 34. If the seller is bound to hand

over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before the time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.
Section II. Conformity of the goods
and third party claims Article 35.

phai giao cac chang tit c6 lien quan den hang hoa thi ho phai thi hanh nghia vu nay dung thdi han, dung dia diem va dung hinh thut nhu' quy dinh trong hop &rig. Trong twang hop ngudi ban giao chang tit trudc kj/ han thi ho c6 the, trudc khi het thdi han quy dinh se giao chang tit, loai be) bat kj/ diem nao khong phb hop trong chang tit vdi di6u kign la vigc lam nay khong gay cho Nub mua mot tro ngai hay phi ton vo ly nao. Tuy nhien, ngudi mua van c6 quy6n doi ngudi ban b6i thu'ong thiet hai chi& theo Cong udc nay.
Myc II. TInh phu hqp cila hang hoa vg quy6n dm ben thin ba: Digu 35.

(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and

1. Ngu'di ban giao hang dOng so Itiong, phgnn chgt va m6 to nhu' quy dinh trong hop Tong va dung bao bi hay clang goi 397

which are contained or packaged in the manner required by the contract. (2) Except where the parties have agreed otherwise the goods do not conform with the contract unless they: (a) Are fit for the purposes for which goods of the same description would ordinarily be used; (b) Are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely on the seller's skill and judgement; (c) Possess the qualities of goods which the seller has held out to the buyer as a sample or model; (d) Are contained or packaged in the manner usual for such goods or where there is no such manner, in a manner adequate to preserve and protect the goods. (3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity. Article 36. (1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time. (2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding

nhu' hop dong yeu cau. 2. Ngoai frit nha'ng tru'ong hop da du'oc cac ben thoa thu*an khac, hang hoa bi coi la khong phi] hop voi hop thing ngu: a) Hang hoa kh6ng thich hop cho cac muc dich sit dung ma cac hang hoa ding loai An &Kiang dap (Mg. b) Hang khong thich hop cho bat kSt muc dich cu thg nao ma ngu'di ban da tut tip hoac gian tip bigt du'oc vao luc kjt kgt hop dong, trig trtiong hop neu can cii vao cac hoan canh cu thg c6 the' thay rong kh6ng dija vao kign hay sy phan doan cua ngu'ai ban hoac neu d6i vcii ho lam nhti the la kh6ng hop ljt. c) Hang kh6ng c6 cac tinh chat cua hang m8u hoac kidu clang ma ngu'ai ban da cung cap cho ngu'ai mua. d) Hang kh6ng dtioc dong bao bi theo cach th6ng thuting cho nhu'ng hang ding loai hoac ngu khong c6 cach thong thu'Ong, thi bang cach thich hop de gift gin va bao A hang hoa do. 3. Ngu'ai ban kh6ng chiu trach nhigm ye \deo giao hang khOng dung hop (long nhu' da n8u trong cac diem tit a dgn d cua kho8n ten ngu nhu' ngudi mua da bigt hoac kh6ng thg kh6ng bigt ye viec hang khong pha hop vao 10c kgt hop d6ng. Dieu 36. 1. Ngu'ai ban chiu trach nhigm chigu theo hop d6ng va COng Yoc nay, ye moi sLt kh6ng pha hop nao cua hang hoa ma sit kh6ng pha hop do vao 10c chuygn giao rui ro sang ngutii mua, ngay ca khi su' khong pha hop cua hang hoa chi &roc phat hien sau do. 2. Ngudi ban cung chiu trach nhiem ye moi sU kh6ng phu hop cua hang hoa x8y ra sau thoi digm (la not 8 digm tren

398

paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or charactersistics. Article 37. If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any nonconforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However the buyer returns any right to claim damages as provided for in this Convention. Article 38. (1) The buyer must examine the goods or cause them to be examined within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination. Article 39.

va la hau qu5 coa viec ngudi ban vi pham bat cir mot nghia vu nao cua minh, kd c5 viec kh6ng thd hoar) toan d5m b5o rang trong mot thdi han nao do hang hoa van thich hop cho muc dich sir dung th6ng thu'Ong hay muc dich cu the hoac van duy tri du'oc nhang tinh chat hay dac tinh de quy dinh. Digu 37. Trong tru'Ong hop giao hang trade thdi han, ngu'di ban c6 quygn cho tdi tru'dc khi het han giao hang, giao mot phan hay mot s6 luring thigu, hoac giao hang moi thay cho hang de giao kh6ng pha hop vdi hop dung, hoac khdc phuc moi su khong phi hop caa hang hoe da giao vdi di& kien la viec lam d6 caa ngutii ban kh6ng gay, cho ngu'di mua mot tra ngai hay phi ton vo lj/ nao. Tuy nhien ngu'di mua c6 quyen doi ID& thu'ong thiet hai chieu theo Cong uric nay. Digu 38. 1. Ngu'di mua phi kidm tra hang hoac ID5o dam c6 su kidm tra hang trong mot thdi han ngan nhgt ma thu'c to c6 the lam du'oc tay tinh huong cu thd. 2. Neu hdp Tong c6 quy dinh vg viec chuyen cha hang hoa thi viec kidm tra hang c6 the du'oc ddi lai den lac hang tdi noi den. 3. Neu dia diem den caa hang bi thay d6i trong thdi gian hang dang tren during van chuyen hoac hang du'oc ngu'di mua VA di tiep va khi do ngubi mua kh6ng c6 kh5 nang hdp ly cid kiern tra hang hoa, con ngLidi ban de bit hay Bang le ph5i biet khi kjt ket hop Tong ve kh5 nang dQi I6 trinh hay giti tip d6 thi viec kiem tra c6 the du'oc ddi lai den khi hang VA noi den rndi. Di6u 39.

(1) The buyer loses the right to rely on a 1. Ngu'di mua bi met quyan khigu nai vg 399

lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. Article 40. The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformist relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer. Article 41. The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42. Article 42. (1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property of which at the time of the conclusion of the contract the seller knew or could not have been unarware, provided that the right or claim is based on industrial property or other intellectual property. (a) Under the law of the State where the

viOc hang hoa khong phi hop hop (long nau ngudi mua kh6ng thong bao cho ngudi ban nhCmg tin tilt v6 viOc khOng phi hop do trong mot thdi han hop lj/ ke tit lac ngudi mua da phat hiOn hay clang le da phai phat hiOn ra so kh6ng phi hop do. 2. Trong moi trudng hop, ngudi mua bi mat quy6n khigu nai v6 viOc hang kh6ng phi hop voi hop dung nau ho khong th6ng bao cho ngudi ban bit v6 viOc da cham nhat trong thdi han 2 narn 14 of ngay hang hoa da thut sit du'oc giao cho ngudi mua tilt phi thdi han nay trai ngu'oc voi thdi han bao hanh quy dish trong hop &Mg. Digu 40. Ngudi ban kh6ng c6 quy6n viOn clan cac quy Binh cua cac di6u 38 va 39 nau nhu' sit kh6ng phi hop cua hang hoa lien quan clan cac yau t6 ma ngudi ban da bit hoac khong the khong bra va ho (la kh6ng th6ng bao cho ngudi mua. Digu 41. Ngudi ban phai giao nhi .Ing hang hoa kh6ng bi rang buQc bdi bat cCt guy& han hay yOu sach nao cua ngudi thit ba fru' trudng hop ngudi mua (long nhan loaf hang bi rang buQc vao quy6n han va yOu . sach d6 du'oc hinh thanh tren co sa sa hal cong nghiOp hay sd hCtu tri tue khac thi nghia vu cua ngtldi ban se du'oc di6u chinh theo6u 42. Digu 42. 1. Ngt..rdi ban phai giao nhctng hang hoa kh6ng bi rang buOc bdi bat ca quy6n han hay you sach nao cua ngudi thCt ba tren co sa sd hau cong nghiOp hoac sa hitu tri tue khac ma ngudi ban da bit hoac khong bit vac) thdi digm kjt k6t hop dong, voi di6u kiOn nau cac quy6n va yOu sach not ten du'oc hinh thanh tren co so sa hau cong nghiOp hoac sa hitu tri tue khac. a) Chi& theo phap luat coo quoc gia

400

goods will be resold or otherwise used if it was contemplated by parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or (b) In any other case under the law of the State wher,?. the buyer has his place of business. (2) The obligation of the seller under the preceding paragraph does not extend to cases where: (a) At the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim: or (b) The right or claim results from the seller's compliance with technical drawings, designs, formular or other such specifications furnished by the buyer. Article 43. (1) The buyer loses the right to rely on the provisions of article 41 or 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim. (2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. the Notwithstanding 44. Article provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the page in accordance with article 50 or claim damages, except to loss of profit, if he has a reasonable excuse for his failure to give the required notice.

not hang hoe se duac ban lai hay sit dung bang cach khac, neu cac ben c6 du down vao luc k9 kgt hdp dung rang hang hoe se duac ban lai hay sit dung bang cach khac tai quoc gia do, hoac la: b) Trong moi truang hop khac chigu theo luat phap cua qu6c gia c6 tru sa thuang mai cua ngudi mua. 2. Trong cac tru'dng hop sau day, ngudi ban khong bi rang buac bi i nghia vu neu ten, ngu: a) Vao luc k9 kgt hop clang, ngudi mua de !Diet hoac kh6ng thg bigt vg su hien hau cua quygn Idi hay yeu sach not tren, hoac la: b) Quy6n loi hay yeu sach bat nguon tit su kien ngudi ban de tuan theo cac ban thigt ke k9 thuat, hinh ye, cOng thac hay nhang s6 ligu co sa do doanh nghiep ngudi mua cung cap. Digu 43. 1. Ngubi mua mat quygn khigu nai du'a vao cac quy dinh cua Dieu 41 va 42. Neu nhu ho khong th6ng bao cho ngudi ban nhilIng tin tac ve tinh chit dm quygn han hay yeu sach cua ngudi tho' ba, trong mat thdi han hop 19 ke tit 10c ngudi mua de bigt hay clang le phi biet vg quygn hoac yeu sach do. 2. Ngu'di ban khong c6 quyen vien den nhCing sit quy Binh tilt diem 1 neu tren neu ngudi ban de bigt vg quygn han hay yeu sach cua ngudi trio' ba va vg tinh chit cua quyen han hay yeu sach. Digu 44. Bit chip nhang quy dinh cua diem 1 Dieu 39 va khoAn 1 Dieu 43, ngudi mua c6 the Om gia chieu theo Dieu 50 hay d6i b6i thu'Ong thiet hai, ngoai trit kho6n loi bi ba Id, ngu ngudi giai filch vi sao mua c6 19 do hop 19 ho khong thong bao tin tut can thigt cho ngudi ban.

401

Section III. Remedies for breach of Myc lll. Cac bien phap bac, ho phap ly contract by the seller trong truong hcip ngudi ban vi pham hIp d6ng Article 45. Di6u 45. (1) If the seller fails to perform any of his 1. Neu ngudi ban da kh6ng thuc hien obligations under the contract or this mot nghia vu nao do cUa ho phat sinh tit Convention, the buyer may: hop d6ng mua ban hay C6ng u'oc nay, thi ngudi mua c6 can ca (a) Exercise the rights provided in a) Thuc hien nhimg quy8n han cue articles 46 to 52: minh theo quy dinh tai cac dieu tit 46 clgn 52; (b) Claim damages as provided in b) Doi b6i thudng thiet hai nhu de quy articles 74 to 77. dinh tai cac dieu tit 74 den 77. (2) The buyer is not deprived of any 2. Ngu'di mua khong met quyen doi boi right he may have to claim damages by thuong thiet hai khi ho de sii dung exercising his right to other remedies. quyen dung mot bien phap bao h6 phap ly khac. (3) No period of grace may be granted 3. Kh6ng mot thoi han an han nao CO to the seller by a court or arbitral the duoc Toa an hay Trong tai ban cho tribunal when the buyer resorts to a ngudi ban khi ngudi mua sit dung den remedy for breach of contract. bat kjt hen phap bao h6 phap ly nao trong twang hop ngudi ban vi pham hop Article 46. Di6u 46.

(1) The buyer may require performance 1. Ngudi mua c6 the yeu ceu ngudi ban by the seller of this obligations unless phai thut hien nghia vu, WI phi ngudi the buyer has resorted to a remedy mua so' dung mot bien phap bao h6 which is inconsistent with this phap ly kh6ng hop vdi y8u ca'u d6. requirement. (2) If the goods do not conform with the 2. Neu hang h6a khong phi., hop vdi hop contract, the buyer may require delivery dong thi ngudi mua c6 the dal ngudi ban of substitute goods only if the lack of phai giao hang thay the net.' su khong conformity constitutes a fundamental ph6 hop do tao thanh mot skt vi pham cc breach of contract and a request for ban hop citing va yeu cau ye viec thay substitute good is made either in the hang phai duoc det ra Gang mot lac conjunction with notice given under vdi viec th6ng bao nhEtng dpi kiOn chi6u article 39 or within a reasonable time theo Dieu 39 hoec trong mot thdi han thereafter. hop ly sau do. (3) If the goods do not conform with the 3. Neu hang hoa khong ph0 hop vdi hop contract, the buyer may require the d6ng, ngudi mua c6 quyen doi hoi ngudi seller to remedy the lack of conformity ban phai loci trii su kh6ng phi.] hop ey,

402

by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter.

trig nhCtng trudng hop khi dieu nay


khong hop 19 xet theo tat ca cac tinh bet. Viec yeu cau loaf trif su khOng phii hop cOa hang hoe so vdi hop Tong phi du'oc tien hanh hoc la ding mot luc vdi thong bao nha'ng kien chidu theo Dieu 39 hoec trong mot thdi han hop 19 sau do. Digu 47. 1. Ngudi mua co the cho ngudi ban them met thdi han b6 sung hop 19 a ngudi ban thiic hien nghia vu. 2. Trit phi ngudi mua da du'oc ngudi ban thong bao rang ngudi ban se khong thu'c hien nghia vu cua minh trong thdi han b6 sung do, ngudi mua khong du'oc su dung den bet cif bien phap bao bo phap 19 nao trong trudng hop ngudi ban vi pham hop d6ng trudc khi thdi han b6 sung ket thuc. Tuy nhien ngay ce trong trudng hop nay ngudi mua cf.-mg khong mgt quyen doi b6i thudng thiet hai do ngudi ban chem tre trong viec thcfc hien nghia vu cua minh. Dieu 48. 1. Veil dieu kien tuan tha quy dinh cue Dieu 49 ngudi ban co the, ngay ce sau khi het thdi han giao hang, loai tit moi thigu sot trong viec thu'c hien nghia vu cOa minh. phi ton do ngudi ban chiu vdi dieu kien la dieu do khong keo theo mot su' chem trg ve 19 ma khong gay ra cho ngudi mua nhimg tra ngai phi l9 hay tinh hinh bet dinh va viec ngudi ban phi hoan tre cac phi ton ma ngudi mua ganh chiu. Tuy nhien ngudi mua duy tri quyan doi b6i thudng thiet hai chi& theo Cong udc nay. 2. Neu ngudi ban yeu cau ngudi mua cho bigt la ngudi mua c chap nhen viec loai trii thieu sot not tren cOa ngudi ban hay khOng va ngu ngudi mua kh6ng dap Ung yeu cau nay cOa ngudi ban trong

Article 47. (1) The buyer may fix an additional period of time of reasonable length for performance by the seller or his obligations. (2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to in delay for damages claim performance.

Article 48. (1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without buyer unreasonable the causing inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention. (2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform

403

within the time indicated in his request. The.buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.

mot thdi han hip ly thi ngudi ban c thg loci tit thigu sot do trong pham vi thdi han ma ngudi ban da ghi trong don yeu cgu. Ngudi mua kh6ng thg, tit& khi man han ay, sit dung bat di bien phap bgo h0 phap ljt nao kh6ng thich hop cho vied thi hanh nghia vu cua ngudi ban. 3. Ngu ngudi ban thong bao cho ngudi mua rang ngudi ban se thut hien vied loci trii thigu sat trong mot thdi han an Binh thi can higu rang thong bao not tren bao g6m c6 yeu cgu ngudi mua cho bigt ho chap nhan vied loci trCt thigu sot hay khong chigu theo quy Binh cua khogn 2 not tren. 4. Yeu cau hay th6ng bac, cOa ngudi ban theo quy Binh cua cad khogn 2 hay 3 ciia Dieu nay se khOng CO hieu kit ngu ngudi mua khOng nhan

(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph 2, that the buyer makes known his decision.

(4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer.

Article 49.
(1) The buyer may declare the contract avoided: (a) If the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract: or (b) In case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed. (2) However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so: (a) In respect of late delivery, within a reasonable time after he has become aware that delivery has been made;

Di6ta 49.
1. Ngudi mua c thg tuyen b6 hug' hop dung: a) Ngu vigc ngudi ban khong thu'c hien mot nghia vu nao do cOa ho phat sinh tit hop &rig hay tCt C6ng u'dc nay cgu thanh mot vi pham chO ygu den hop (Tong, hoac: b) Trong truing hop khong giao hang: Neu ngudi ban kh6ng giao hang trong thdi gian da &too ngudi mua gia han them cho ho chigu theo khogn 1 Dieu 47 hoac ngu ngudi ban tuyen b6 se kh6ng giao hang trong thdi gian du'oc gia han nay. 2. Tuy nhien trong taking hop neu ngudi ban da giao hang thi ngudi mua se mgt quygn hug' hop d6ng ngu ngudi mua da khong tuyen b6 hug' hop dong. a) Khi ngudi mua giao hang cham trong mot thdi han hop 19 kg tCt lOc ngudi mua da bigt rang vied giao hang da dtioc thut hien.

404

(b) In respect of any breach other than late delivery, within a reasonable time: (i) After he knew or ought to have known of the breach. (ii) After the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 47, or after the seller has declared that he will not perform his obligations within such an additional period; or (iii) After the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 48. or after the buyer has declared that he will not accept performance. Article 50. If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the deliverly bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in acoordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price. Article 51. (1) If the seller delivers only a part of the goods or if only a part of the goods delivered is in comformity with the contract, articles 46 to 50 apply in respect of the part which is missing or does not conform. (2) The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to

b) D6i vdi moi tru'eing hOp vi pham tit truting hop giao hang chem tre trong mot thdi han hop i) Kg tir lac ngudi mua da !Diet hay clang le phei bigt v6 ski vi pham do. ii) Sau khi de het moi thdi hen ma ngu'di mua de gia han them cho ngudi ban chi& theo khoen 1 Dieu 47 hoac sau khi ngudi ban da tuyen b6 rang ho se khong that hien. nghia vy caa minh trong thdi han de du'oc gia han them (15, hoec: iii) Sau khi da het moi thdi han b6 sung ma ngu'di ban de yeu c6u chi& theo khoen 2 Dieu 48 hay sau khi ngu'di mua de tuyen b6 la ho khong chap nhen cho ngu'di ban thac hien nghia vy. Di6u 50. Trong trudng hop hang hoa khong pha hop vdi hop (king, du tin hang de &roc tri hay chaa, ngudi mua c th6 gi6m gia hang theo tcr to can dr vac) scr sai biet giCra gia tri thac ctlia hang hoe vao lac giao hang va gia tri cua hang hoe nau hang pha hop hop d6ng vao lac giao hang. Tuy nhien, ngu ngu'di ban loai trif moi thigu sot trong vigc thac hien nghia vu chigu theo Dieu 37 hoac Dieu 48 hoac neu ngu'di mua tit choi chap nhen vigc thac hien dm ngu'di ban chi& theo cac Dieu nay thi ngudi mua khong duoc gi6m gia hang. Digu 51. 1. Neu ngudi ban chi giao mot phan hang hoe hoec n6u chi mot phan hang hoa de giao phi hop vdi hop Tong thi cac dieu 46 den 50 se duoc ap dung doi vdi phan hang hoe thigu hoec phan hang hoe kh6ng phu hop vdi hop dung. 2. Ngu'di mua chi du'oc tuyen b6 huj/ bO toan b6 hop d6ng, n6u viec kh6ng thac hien hop Tong hoac mot phan hang giao khong pha hap hop &rig cau thanh mot 405

a fundamental breach of the contract.

su'vi pham chi you hop citing.

Article 52.
(1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery. (2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess . quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.

Digu 52.
1. Nau ngu'di ban giao hang tru'oc thai han quy dinh thi ngiJOi mua du'oc quyan 11,1a chon ho5c chap nh5n ho5c tit ch6i viec giao hang do. 2. Neu ngt.toi ban giao mot s6 IUOng nhi6u hon s6 lacing quy dinh trong hop dong, thi ngu'di mua c thd chap nh5n hay tit ch6i viec giao s6 lu'ong phu trOi not ten thi ngu'di mua phi trA tin hang phu trQi. Neu ngu'di mua chap nhen toan bQ ho5c mot ph5n s6 *mg phu trQi not tren thi mua phi trA tin hang phu trQi theo gia hop Tong quy dinh.

Chapter III OBLIGATIONS OF THE BUYER Article 53. The buyer must pay the
price for the goods and take delivery of them as required by the contract and this Convention. Section I. Payment of the price

Chuang III NGHiA VU cOA Nato' MUA Digu 53. Ngu'ai mua ce nghia vu thanh
toan fiat.) hang va nh5n hang theo quy dinh cua hop d6ng va cue C6ng utIc nay. Muc I. Thanh toan tign hang

Article 54. The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made. Article 55. Where a contract has been
validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.

Digu 54. Nghia vu thanh town tin hang


cua ngt.toi mua bao g6m viec ep dung cac bien phap va tu5n thi cac thu tuc ma hop d6ng ho5c 1u5t le doi hOi de c thd that hien &roc thanh toan tin hang.

Digu 55. Trong nhang tru'ang hop, nau


hop d6ng da du'oc kjr kat mot cach hop phap, nraing trong hop dong kh6ng quy dinh gia ca mot cach tut tiap ho5c glen tiap, hoc kh6ng quy dinh cach ,xac dinh gia thi du'oc phep suy down rang, cac ben, trit phi c quy dinh trai ngdoc, de. c ngu jr du'a vao gia da du'oc an dinh cho loci hang hoe nhu' v5y khi hang hoe nay dt.toc dem ban trong nho'ng di& kien tu'ong tu'cita nganh bu6n ban him quan.

Article 56. If the price is fixed according


to the weight of the goods, in case of

Digu 56. NI& gia ce chtoc an dinh theo


trong lu'Ong cua hang hoe thi trong

406

doubt it is to be determined by the net weight. Article 57. (1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) At the seller's place of business; or (b) If the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. (2) The seller must bear any increase in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract. Article 58. (1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents. (2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods or documents controlling their disposition, will not be handed over to the buyer except against payment of the price. (3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity.

trudng hip c6 nghi ngd, gia se dinh theo trong lu'dng tinh. Di6ti 57.

xac

1. Ngu ngudi mua kh6ng c6 nghia vu phai thanh toan tin hang tai mot dia digm nao do thi ho phai tra tin cho ngudi ban: a) Tai ndi c6 try sa thudng mai dia ngudi ban hoac: b) Tai ndi giao hang hoac chang tit ngu vigc tra tin phai thyt hign cung 16c voi vigc giao hang hoac chang 2. Ngudi ban phai chiu moi skt gia tang phi ton de thiic hign vigc thanh toan do ski thay doi dia digm coa try sa thudng mai dia minh sau khi hop d6ng dudc kj/ kgt. Di'du 58. 1. Ngu ngudi mua kh6ng co nghia vu phai tra tin vac) mot thoi han cu thd nao nhgt dinh thi ho phai tra khi, chigu theo hdp dong va Cong udc nay, ngudi ban dat dudi quy6n dinh doat cua ngudi mua hoac hang boa hoac cac chang tit nhan hang. Ngudi ban c6 thg dat di6u kign phai thanh toan nlikt vay de mi lai vigc ho giao hang hoac chitng 2. Ngu hop d6ng qui dinh vigc chuygn chd hang hoa, ngudi ban c6 thg gill hang di voi digu kign la hang hay chang tit nhan hang chi dkidc giao cho ngudi mua khi ngudi mua thanh toan tin hang. 3. Ngu'di mua kh6ng c6 nghia vu phai thanh toan tign hang trudc khi ho c6 thg kigm tra hang hoa, trCt nhimg trkking hop ma c6 thg thitc giao hang hay tra tin do ca(. Pn thda thuan khong cho phep lam viec u,

407

Article 59. The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller. Section II. Taking delivery Article 60. The buyer's obligation to take delivery consists: (a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and (b) In taking over the goods. Section III. Remedies for breach of contract by the buyer Article 61. (1) If the buyer fails to perform any of his obligations under the contract or this Convention. the seller may: (a) Exercise the rights provided articles 62 to 65; (b) Claim damages as provided articles 74 to 77.

Digu 59. Ngu'ai mua phi tra tin vao ngay thanh toan de qui dinh hoec c the clu'dc xac dinh theo hop dung va Cong u'oc nay, ma kh6ng can phai c mot Idi yeu ceu hay viec thtic hien mot thu tuc nao khac ve phia ngUdi ban. Muc ll. Nhan hang Digu 60. Nghia vu nhan hang cUa ngudi mua a) Thut hien moi hanh vi ma ngudi to c quyan chd doi 6 ho mot cach hop ljt de cho phap ngudi ban thuc hien viac giao hang, vb. b) Tip nhan hang hoa. Myc Cac bien phap bac) hd phap lk trong trudng hdp ngudi mua vi pham hdp d6ng

El& 61.
1. Neu nguOi mua kh6ng thut hien mot nghia vu nao do theo hop &rig mua ban hay Cong Uric nay, thi ngdoi ban co the:

in a) Thut hien cac quy6n qui dinh tai cac dieu 62 va 65. in b) Doi la& thubng thiet hai nhu' qui dinh tai cac dieu tit 74 den 77. 2. Ngt.tai ban khong mat quyan doi boi thudng thiat hai khi ho sit dung quy6n ap dung cac bien phap IDA h6 phap ljt khac. 3. Khong mot thai han an han nao c the duoc tob an hay Trong tai ban cho ngutiii mua khi ngubi ban vien den mot bien phap beo h6 phap ljt nao do ma ho co guy& sit dung trong twang hop ngu'di mua vi pham hop Tong. Digu 62. Ngubi ban c the yeu ceu ngu'di mua tra ti6n, nhan hang hay thut hien cac nghia vu khac cua ngu'ai mua,

(2) The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies. (3) No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract.

Article 62. The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the 408

seller has resorted to a remedy which is inconsistent with the requirements. Article 63. (1) The seller may fix an additional period of time of reasonable length for perfomance by the buyer of his obligations. (2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance.

tit phi ho sit' dung mot bin phap bio hQ phap ljt khac khong thigh hop voi cac yeu cau do. Di6ti 63. 1. Nguai ban c6 thd chap nhan cho nguai mua mot thai han b6' sung hop ljt de thktc hien nghia vu cua minh. 2. Trit phi nhan du'oc th6ng baso caa nguai mua cho biet se khong thkic hien nghia vu trong thcli gian ay, nguai ban truac khi man han, khOng thd vien den bat cit mot bien phap bao h0 phap ljt nao ma ho duac sit dung trong truang hop nguai mua vi pham hop dung. Tuy nhien, do sii viec nay, nguai ban kh6ng mat quy6n d6i b6i thuang thiet hai vi nguai mua chu'a thiic hien nghia vu. Di61.1 64. 1. Nguai ban c6 thd tuyen b6 huct hop d6ng: a) Neu nguai mua kh6ng thi hanh nghia vu nao dO coa ho theo hop d6ng hay Cong u'dc nay cau thanh mot sit vi pham chO yeu hop &rig, hoac. b) Neu nguai mua khong thi hanh nghia

Article 64. (1) The seller may delcare the contract avoided: (a) if the failure by the buyer to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or (b) if the buyer does not, within the additional period time fixed by the seller in accordance with paragraph (1) of article 63, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed. (2) However, in cases where the buyer has paid the price, the seller looses the right to declare the contract avoided unless he does so: (a) in respect of late performance by the buyer, before the seller has become aware that performance has been rendered; or (b) in respect of any breach other than late performance by the buyer, within a reasonable time: (i) after the seller knew or ought to have

vu tr6 tin hoac kh6ng nhan hang trong


thai han b6 sung ma nguai ban chap nhan cho ho chieu theo khoAn 1 Dieu 63 hay n'6u ho tuyen b6 se khong lam viec do trong thai han h. 2. Tuy nhien, trong nhalg truang hop khi nguai mua da trA ti6n, ngu'ai ban mat quyen tuyen b6 huct hop dong neu ho kh6ng lam viec nay: a) Trong truang hop nguai mua cham thtic hien nghia vu - truck khi ngt.tai ban biet nghia vu da du'oc thkic hien, hoac: b) Trong truang hop nguai mua vi pham bat di nghia vu nao khac ngoai viec cham tre - trong mot thai han hop Ijr; i) Kd tit 10c nguai ban da biet hay clang 409

known of the breach; or (ii) after the expiration of any additional period of time fixed by the seller in accordance with paragraph (1) of article 63, or after the buyer has declared that he will not perform his obligations within such an additional period. Article 65. (1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him. (2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do so within the time io fixed, the specification made by the ,seller is binding. Chapter IV PASSING OF RISK Article 66. Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller. Article 67. (1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a 410

le phai Net sLt vi pham do, hoac: ii) Sau khi het moi thdi han b6 sung ma ngudi ban chap nhan ch;L.. theo khoan 1 Dieu 63 hay sau khi ngudi mua da tuyen b6 rang ho se khong thut hien nghia vu cua minh trong thdi han b6 sung do. Di61.1 65. 1. Neu theo hop dung ngudi mua phai xac dinh hinh dang, kIch thudc hay nhang dec diem khac deo trong cua hang hoa va neu ngudi mua khong lam di6u ay vao thdi han da thoa thuan hay trong mot thdi han hop 19 ke tit luc nhan du'oc y8u cau cua ngudi ban, thi ngudi ban c the to minh xac dinh hang hoa chi& theo nhu cau cua ngudi mua ma ho c the biet ma kh6ng lam hai den cac quyen loi khac. 2. Neu chinh ngudi ban to minh thtic hien viec xac dinh hang hoa, ho phai bao chi Wet cho ngudi mua brat not dung viec xac dinh va cho ngudi mua mot thdi han hop 19 de ngudi nay c the xac dinh khac. Neu sau khi nhan du'oc th6ng bac) cua ngudi ban ma ngudi mua kh6ng sit dung kha nang nay trong thoi han not tren, thi sct xac dinh hang hoa do ngudi ban thu'c hien c tinh chat bet buQc. Chu*Png IV CHUYEN ROI RO Di6u 66. Vic mat mat hay hit hong hang hoa )(Ay ra sau khi rui ro chuyen sang ngudi mua khOng mien tit cho ngudi nay nghia vu phai trA ti6n, tit phi viec mat mat hay hu hang ay la do hanh d6ng cua ngudi ay gay nen. Digu 67. 1. Khi hop d6ng mua ban quy dinh viec van chuyen hang hoa va ngudi ban khong bi buQc phai giao hang tai not xac

particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. (2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise.

dinh, rui ro du'oc chuygn sang ngutii mua kg titliJc hang du'oc giao cho ngutti chuyen cha tha nhgt dg chuygn giao &roc hang cho ngutii mua chigu theo hop long mua ban. Ngu ngutri ban buQc phi giao hang cho mot ngutri chuygn ch6 tai mot not xac dinh, cac rui ro khong du'oc chuygn sang ngu'ai mua ngu hang hoa chLta du'oc giao cho ngutti chuyen chic tai noi do. Sit kign ban clu'oc phep giCt lai cac chitng tii nhgn hang kh6ng gnh hdang gi clgn ski chuygn giao rui ro. 2. Tuy nhien, rui ro kh6ng du'oc chuygn sang ngu'di mua ngu hang hoa khong du'oc dgc dinh hoa ro rang cho muc dich cCia hop d6ng hogc bAng cac ghi kjr ma higu tren hang hoa, bang cac chitng tit chuyen ch6, logng mot th6ng bao gCti cho ngu'ai mua hoc bgng bgt cCt phu'ong phap nao khac. Di6ta 68. Ngu'di mua nhgn rui ro vg minh doi vdi nhang hang hoa trOn duting van chuygn kg tit luc hang hoa du'oc giao cho chuyen cha la ngu'ai da phat chCtng of xac nhgn mot hop dong van chuygn. Tuy nhign ngu vac) luc kjr kgt hop Tong mua ban, ngu'ai ban clg bit hogc clang le phi bit sit kign hang hoa d bi mat mat hay hit hong cla khong thOng bao cho ngitai mua vg digu do thi vigc mat mat hay NI hong hang hoa do ngitai ban phi ganh chiu.

Article 68. The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods has been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller. Article 69.

Dieu 69. 1. Trong cac truting hop khOng &roc neu tai cac digu 67 va 68, cac rui ro chuygn sang ngu'di mua khi ngu'Oi nay nhgn hang hogc, nau ho khong lam vigc nay dimg thai han qui dinh, thi kg tit luc hang hoa &roc dat dual quyen dinh doat coa ngutii mua va mua clg vi pham hop clong vi khong chiu nhgn hang. 411

(1) In cases not within articles 67 and 68, the risk passes to the buyer when he takes over the goods or, if he does not do so in due time from the time when the goods are placed at his disposal and he commits a breach of contract by falling to take delivery.

(2) However, if the buyer is bound to take over the goods at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. (3) If the contract relates to goods not are goods the identified, then considered not to be placed at the disposal of the buyer until they are clearly identified to the contract. Article 70. If the seller has committed a fundamental breach of contract, articles 67, 68 and 69 do not impair the remedies available to the buyer on account of the breach.

2. Tuy nhien, neu ngu'di mua 1.34 buQc phai nhen hang tai mot not khac voi not c xi nghiep thuting mai cilia ngdoi ban, rui ro du'oc chuyen giao khi den han giao hang va ngudi mua biet rang hang hoe de du'oc dat duol guy& dinh doat cue ho tai ncsi do. 3. Neu hop dung mua ban lien quan den hang hoe chu'a du'oc ce biet hoe, hang chi du'oc coi la de dat ddoi guy& dinh doat cua ngu'ai mua khi nao no du'oc dac dinh hoe ro rang cho muc dich cua hop d6ng nay. Digu 70. Neu ngu'ai ban gay ra mot stf vi pham chu ygu d6i veil hop d6ng thi cac quy dinh cua nhCtng di6u 67, 68, 69 khOng anh hu'ang den guy& ciia ngudi mua sit dung cac !Dien phap bac) he? phap 19 trong tru'ong hop xAy ra vi pham nhu vey. Chuang V CAC DIEU KHOAN CHUNG CHO NGHIA VU CCJA NGIJOI BAN VA NGIICJI MUA

Chapter V PROVISIONS COMMON TO THE OBLIGATLONS OF THE SELLER AND OF THE BUYER

Section 1. Anticipatory breach and


instalment contracts Article 71. (1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of: (a) a serious deficiency in his ability to perform or in his creditworthiness; or (b) his conduct in preparing to perform or in performing the contract. (2) If the seller has already dispatched the goods before the grounds described 412

Myc I. Vi pham co thg biet trudc va cac hdp d6ng giao hang tiing phgn
Digu 71. 1. 1V1Qt ben c the ngctng vi0c thkic hien nghia vu cua minh neu c deu hieu cho they rang sau khi hop d6ng du'oc ky ket, ben kia se khOng thifc hien mot phan nghia vu ciba ho bai chu ygu a) IV1Qt su khiem khuyet nghiem trong trong khe nang thuc hien nay trong khi thu'c hien hop dong. b) Cung cach sit dung die ben kia trong viec chuen bi thu'c hien hay trong khi tht,tc hien hop d6ng. 2. Neu ngu'ai ban da giti hang di khi phat hien nhilng 19 do neu trong khoan

in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entities him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. (3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance. Article 72. (1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided. (2) If time allows, the party intending to declare the contract, avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance. (3) The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations. Article 73. (1) In the case of a contract for delivery of goods by instalments, if the failure of one party to perform any of his obligations in respect of any instalment constitutes a fundamental breach of contract with respect to that instalment, the other part may declare the contract avoided with respect to that instalment. (2) If one party's failure to perform any of his obligations in respect of any

ten, ho c6 thd ngan can kh6ng d6 hang hoa du'oc giao cho ngu'di mua ngay 66 neu ngudi nay giu trong tay chang tea' cho phep ho nha'rl hang. Muc nay chi lien quan den cac quy4n boa ngutii mua va ngu'di ban doi voi hang hoa.

3. M6t ben nao ngLing vi8c thtic hi8n hop dung, kh6ng phu thu6c vac) viec do xay ra trubc hay sau khi guff hang di, thi phai gal ngay mot thong bao vg vigc do cho b8n kia va phai tip tuc thu'c hiOn hop Bong neu ben kia cung cap nhang bao dam day do cho vi8c thtic hign nghia vu caa ho. Digu 72. 1. Ngu tru'Oc ngay qui dinh cho vi8c thi hanh hop d6ng, ma thy hidn nhien rang mot b8n se gay ra mot vi pham cho yeu den hoat clOng, ben kia c6 th6 tuyen bo hop cl6ng bi huY. 2. Ngu co du thoi gid, ben nao coy dinh tuy8n b6 hop d0ng bi huji thi phai giti mot thong bao hop 1j/ cho ben kia d6 cho phep ho cung cap nha'ng bao dam clay du rang ho se thu'c hign nghia vu caa minh. 3. Cac qui dinh cua khoan tr8n khong ap dc/ng rigu ben kia da tuyen b6 rang ho se kh6ng thyc hign nghia vu caa min h. Di6u 73. 1. Neu hop deing qui dinh giao hang titng phgn va neu sii ki8n mot ben khong thu'c hign mot nghia vu co lien quan dgn mot /6 hang cgu thanh mot si.t vi pham chi) yeu den hop clong vg 16 hang do thi ben kia c6 thd tuyen b6 huji hop &sing ve phgn 16 hang do.

2. Ngu mot ben khong thu'c hien mot nghia vu c6 lien quan dgn bat at 16
413

instalment gives the other party good grounds to conclude that a fundamental breach of contract will occur with respect to future instalments, he may declare the contract avoided for the future, provided that he does so within a reasonable time. (3) A buyer who declares the contract avoided in respect of any delivery may, at the same time declare it avoided in respect of deliveries already made or of future deliveries if, by reason of their interdependence, those deliveries could not be used for the purpose contemplated by the parties at the time of the conclusion of the contract. Section //. Damages Article 74. Damages for beach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conslusion of the contract in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. Article 75. If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74. Article 76. (1). If the contract is avoided and there is a current price for the goods the party claiming damages may, if he has not 414

hang nao cho phep ben kia c 19 do xac dang de' cho rang se c mot stf vi pham cho y6u den hdp &rig vdi cac Id hang se du'oc giao trong tu'ong lai thi ho c th tuyen b6 hujr hop (Tong doi vdi cac 10 hang Wong lai do vdi diau kian phat lam viac do trong mot thai han hop 19. 3. Ngudi mua tuyen b6 hu9 hdp d6ng doi vdi 1)6'1 k9 Id hang nao c thd ding mot 10c, tuyen b6 hop dong bi hu9 d6i vdi cac Id hang da giao hoe d6i vdi cac Id hang se du'oc giao thong trong tudng lai n6u do tinh lien kit, cac Id hang nay kh6ng thd sit dung du'oc cho nhitng muc dich do hai ben da dti tinh vao luc k9 kit hop d6ng.
Myc ll. B6i thtiOng thrat hai

Digt,' 74. Ti6n b6i thudng thiat hai xay ra do mot ben vi pham hop d6ng la mot khoAn tin bao gOm: t6n th5t va kho5n loi bi !DO Id mot ben da phi chiu do h5u qu5 cua su' vi pham hop citing. Ti6n boi thdong thiat hai nay khong the cao hon t6n th5t va so loi b6 Id ma ben bi vi pham da dt1 lieu hoc dangle phi du' lieu du'oc vac) 10c k9 kit hop d6ng nhu' mot h5u qu5 co thi x6y ra do vi pham hop d6ng, co tinh din cac tinh fiat ma ho da bit hoc nen phi Di6u 75. Khi hop d6ng bi hu9 va nau bang mot cach hop 19 va trong mot thai han hop 19 sau khi hu9 hop thing, ngudi mua da mua hang thay thi hay ngudi ban da ban lai hang thi ben dal boi thudng thiat hai c thd dOi nh5n ph5n chat-1h lach giCia gia hop Tong va gia mua th6 hay ban lam hang cung nhti moi khoAn tin b6i thudng thiat hai khac co thd duoc chiu theo Dieu 74. Di6u 76. 1. Khi hop d6ng bi hu9 va kh6ng c mot gia hien hanh ben d6i b6i thudng thiet hai co thd, nau ho da kh6ng mua hang

made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance. (2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or if there is no current price at tham place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cosis of trevlsporting the goods. Article 77. A Party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have ben mitigated. Section III. Interest Article 78. If a party fails to pay the price or any other sum that is in arrears, the other party is entitied to interest on it, without prejudice to any claim for damages recoverable under article 74. Section IV. Exemptions Article 79. (1) A party is not liable for a failure to perform any of his obligations if he proved that the failure was due to an

thay th6 hay ban lai hang chi& theo Dieu 75, doi nhan phan cher -1h I6ch gia, an dinh trong hop d6ng va gia hiOn hanh vao luc huji hop &rig ding moi khoan tin boi thuong thi6t hai khac c6 thd doi chiu theo Di6u 74. Mac dau vay, n6u ben d6i b6i thudng thi6t hau da tuy8n b6 huj% hop d6ng sau khi da tiap nhan hang hoa, thi gia hiOn hanh vao Itac tip nhan hang hoa dudc ap dung va kh6ng phai la gia hiOn hanh vao luc hsay hop dong. 2. Theo muc dich caa di6u khoan tren day, gia hiOn hanh la gia a not ma vi6c giao hang clang 18 phai du'oc thuc hiOn hoac nau khong c6 gia hiOn hanh tai ndi do la gia hiOn hanh tai mot noi nao ma ngudi to co th6 tham chiu mot cach hop ly, c6 tinh d6n sLt chenh 16ch trong chi phi va chuyen ch6 hang h6a. Digu 77. Ban nao vi6n dan sLt vi pham hop d6ng cua ben kia thi phai ap dung nhO'ng biOn phap hop ly can cif vao cac tinh hu6ng cu thd d6 han ch6 ton that k6 c6 khoan loi bi b6 lo do Si! vi pham hop Tong gay ra. NI& ho kh6ng lam di6u do, ben vi pham hop &rig c6 th6 yeu c6u gi6m bdt mot khoan tin boi thtiOng thi6t hai bang v6i mac ton that dang le da c6 the han ch6 duoc. Muc ill. Tign lai Digu 78. Ngu mat ben cham thanh toan tin hang hay moi kho6n tign trigt khau, ben kia c6 quy6n doi tin lai ten s6 tin cham tra do ma khong 6nh hu'ang cl6n quy6n doi b6i thuting thi6t hai ma ho c6 quy6n doi hoi chi& theo Di6u 74. Muc IV. Mien trach Digu 79. 1. M6t ben kh6ng chiu trach nhi6m v6 vi6c kh6ng thu'c hiOn bat kj/ mot nghia vu nao d6 dia ho n6u chCtng minh du'oc 415

impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the Contract or to have avoided or overcome it or its consequences. (2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or part of the Contract, that party is exempt from liability only if: (a) he is exempt under the preceding paragraph; and (b) the person whom he may so engaged would be so exempt if the provisions of that paragraph were applied to him. (3) The exemption provided by this article hay effect for the period during which the impediment exists. (4) The party who fails to perform mu6t give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable ttme after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt. (5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention. Article 80. A party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first partys act or omission. Section V. Effects of Avoidance

rang viec khong thi..tc hien ay la do mot tra ngai nem ngoai su' kiem soat cua ho va ngutri to kh6ng the char doi mot cach hop 19 rang ho phai tinh tdi tra ngai do vac) luc k9 kgt hop cl6ng hoec la tranh du'oc hay khgc phut cac heu qua cua no. 2. Neu mot ben khong thiic hien nghia vu cua minh do ngu'di this ba ma ho nho thcfc hien toan phan hay mot phen hop deing cung khOng thu'c hien dieu do thi ben ay chi du'oc mien tech nhiem trong Viking hop: a) Du'oc mien tech chigu theo qui dinh cua khogn tren, va b) Ngu ngu'di this ba cling se coat mien trach ngu cac qui dinh cua khogn ten du'oc ap dung cho ho. 3. Su' mien trach &roc qui dinh tai dieu nay chi c6 hieu Itfc trong th6i k9 ton tai tra ngai do. 4. Ben nao khong thcfc hien nghia vu cua minh thi phai bao cao cho ben kia bigt vg trO ngai va anh Wang cua no doi vdi kha nang thcfc hien nghia vu ngu th6ng bao kh6ng tdi tay ben kia trong mot thdi han hop 19 tit khi ben khong thcfc hien nghia vu de bigt hay clang le phgi bigt vg tra ngai do thi ho se phai chiu trach nhiem vg nhCing thiet hai do viec ben kia khong nhen du'oc thong bao. 5. Cac qui dinh cua dieu nay kh6ng can tra ttlIng ben duct sit dung moi quyen khac ngoai quygn duct boi thu'Ong thiet hai chiu theo COng u'dc nay. Di6u 80. M'Ot ben khOng loot vien den mot su' kh6ng thvc hien nghia vu cua ben kia trong chiing mu'c ma ski khong thu'c hien nghia vu do la do nhling hanh vi hay so sugt cua chinh ho. Muc V. Hau qua cua viec hui harp d6ng

416

Article 81. (1). Avoidance of the contract releases both parties from their obligattons under it, subject to any damages which may be due. Avoidance does not affect any provisions of the contrract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. (2) A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract. If both parties are bound to make restitution the must do so concurrently. Article 82. (1) The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if It is impossibte for him to make restitution of the goods substantially in the condition in which he received them. (2) The preceding paragraph does not apply: (a) if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which the buyer received theln is not due to his act or omission; (b) if the goods or part of the goods have perished or deteriorated am a result of the examination provided for in article 38, or (c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or

Digu 81. 1. Vigc hug' hop d6ng giai phong hai ben kha nhCtng nghia vu cua ho, khogn bOi thutmg thigt hai c6 thg c6. Vigo hq hop d6ng kh6ng c6 higu lut d6i veil qui dinh coa hop d6ng lien quan dgn vigc giAi quygt cac tranh chgp hay dgn cac quygn loi va nghia vu cCia hai ben trong trutng hop hop &rig bi huji.

2. Ben ngo da thitc hign town phgn hay mot phgn hop d6ng c6 thg doi ben kia hogn lai nhang gi bo da cung cap hay da thanh toan khi thifc hign hop d6ng. Ngu ca hai ben dgu bi bu0c phi thut hign vigc hogn lai, thi ho phi lam vigc nay ding mot luc. Digu 82. 1. Ngutli mua mat quyen tuyen b6 huji hop d6ng hay doi ngtioi ban phi giao hang thay the ngu ho khong thd hogn lai hang hog trong tinh trang vg thkic chit gi6ng nhu tinh trang khi ho nhgn hang do. 2. Di& khoe'n ten khong gp dung: a) Ngu kh6ng thd hogn lai hang hog hogc khong thg hogn lai hang hog trong tinh trang ve tht,fc chgt gi6ng nhu tinh trang khi ngu'ai mua nhgn kh6ng phi do mot hgnh d6ng hay mot ski so sugt cua ho. b) Ngu hang hog hay mot phgn hang hog kh6ng thd sit dung du'oc hoc bi hu hong theo kgt qug caa vigc kigm tra qui dinh tai Digu 38, hogc c) Ngu truck khi nhgn thgy hay clang le phi nhgn thgy rang hang hog kh6ng pha ban toan hop hop dong, ngtioi mua phgn hay mot phgn hang hog trong khu6n kho mot nghigp vu kinh doanh

417

ought to have discovered the lack of conformity. Article 83. A buyer who has lost the right to declare the contlact avoided or to require the seller to deliver substitute goods in accordance with articles 82 retains all other remedies under the contract and this Convention. Article 84. (1) If the seller is bound to refund the price, he must also pay interest on it from the date on which the price was paid. (2) The buyer must account to the seller for all benefits which he has derived from the goods or patt of them: (a) if he must make restitution of the goods or part of them, or (b) if it is impossible for him to make restitution of all or part of the goods or to make restitution of all or part of the goods substantially in the condition in which he received them, but he has nevertheless declared the contract avoided or required the seller to deliver substitute goods. Section VI. Preservation of the goods Article 85. If the buyer is in delay in taking delivery of the goods or where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them. He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer.

th6ng thuting hay da tieu clang hoac bin d6i toan thg hay mot phgn hang hoa dung theo thg thilc sit dung binh thudng. Digu 83. Ngudi mua da mgt quy6n tuyen b6 huj/ hop (216ng hay dOi ngudi ban phai giao hang thay tha chigu theo Di& 82, van duy tri quy6n sit dung biOn phap bao h0 phap ly khac ma ho ca theo hop dung va C6ng uric nay. Digu 84. 1. Ngu ngudi ban bi buOc phgi hoan lai gia ti6n, ho cung phai tra tin lai ten tong s6 cua gia tin do kg tit ngay ngudi mua thanh toan. 2. Ngudi mua phai tra cho ngudi ban s6 ti6n Wiring diking voi moi loi nhuan ma ho da dudc hu'ang tit hang hoa hay mot phan hang hoa: a) Khi ho phgi hoan lai toan thg hay mot phan hang hoa, hoac: b) Khi ho khong the hoan lai toan thg hay mot phgn hang hoa hay khong thg hoan lam hang trong tinh trang v6 thkic chat gi6ng nhu tinh trang ho da nhan mac dau vay ho da tuy8n b6 hop d6ng bi hu9' hay da doi ngudi ban phai giao hang thay thg. Muc VI. Bic, quan hang hoa Digu 85. Khi ngudi mua cham tr6 nhan hang hay khong tra tin hoac trong nhitng trudng hop khi vigc tra tin va vi8c giao hang phai duck tign hanh ding mot 16c, n6u hang hoa con 8 du& quygn dinh doat hay kiam soat cua ngudi ban thi ngudi ban phai thut hign nhitng bin phap hop 19 trong nhang tinh huOng nhu vay da bao quail hang h6a. Ngudi ban c6 quy6n gift lam hang hoa cho tdi khi nao ngudi mua hoan tra cho ho cac chi phi hop 19.

418

Article 86. (1) If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reiect them, he must take such steps to preserve them as are reasonable in the circumstances. He is entitled to retain them until he has been reimbursed his reasonable expenses by the seller. (2) If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the sener, provided that this can be done without payment of the place and without unreasonable unreasonable inconvenience or expense. This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination. If the buyer takes possession of the goods under this paragraph, his rights and obligations are governed by the preceding paragraph. Article 87. A party who is bound to take steps to preserve the goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable. Article 88. (1) A party who is bound to preserve the goods in accordance with article 85 or 86 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided

Dieu 86. 1.1\16u ngtki mua (la nhan hang va c dinh sit dung quygn tit choi khong nhan hang chigu theo hop d6ng hay Cong tfac nay, thi ho phai thi hanh cac bian phap hop 19 trong nhang tinh huong nhu vay, de bao quan hang hoa. Nguti mua c quy6n gift lam hang hoa cho tti khi nao nguti ban hoan tra cho ho cac chi phi hop 19. 2. 1\161.1 hang ho6 giti di cho ngu'di mua da dutc dat duti quyan dinh doat cue ngtki nay tai not dgn va ngu nguti mua sit dung quygn tit ch6i hang thi ho phai tiep nhan hang hoa, chi phi do nguti ban vti digu kian la nguti mua c the lam viac nay ma khong phai tra tin hang va kh6ng gap tra ngai hay cac chi phi kh6ng hop 19. Qui dinh nay kh6ng ap dung ngu nguti ban hian din tai not clan hay tai not do c nguti tham quy6n cid nhan hang hoa cho nguti ban va chi phi do nguti ban chiu. Nhang quy6n loi va nghia vu cue ngtki mua khi ngtki nay tiep nhan hang hoa chigu theo khoan nay di6u chinh bang qui dinh tai khoan tren. Digu 87. Ben nao bi buOc phai c nhang bin phap da bao quan hang hoa c the giao hang vao kho cita nguti th(f ba, chi phi ben kia phai chiu, vti digu kian la cac chi phi nay phai hop 19. Digu 88. 1. Ben nao phai bao quan hang hoa chigu theo cac digu 85 hay 86 c the ban hang di bang cach thich hop ngu ben kia cham trA mot cach phi 19 trong viec tiep nhan hang hoa hay lay lai hang hoac trong viac tr6 tin hang hay cac chi phi bao quan, nhu'ng phat thong bao cho ben kia trong nhang di6u kian hop

419

that reasonable notice of the intention to sell has been given to the other party. (2) If the goods are subject to rapid detelioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordange with article 85 or 86 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell. (3) A party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance. PART 4 FINAL PROVISIONS Article 89. The secretary-general of the United Nations is hereby designated as the depositary for this Convention. Article 90. This Convention does not prevail over any international agreement which has already been or may be entered in to and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement. Article 91. (1) This Convention is open for signature at the concluding meeting of the Unied Nations Conference on Contracts for the International Sale of Goods and will remain open for signature by all States at the Headquarters of the United Nations. N=ew York until 30 September 1981.

19, 9 dinh phat mai hang. 2. Neu hang hoe thu6c loci hang f .nau

hang hay viec bAo qu5n no se gay ra cac chi phi phi 19 thi ben nao c nghia vu b5o quAn hang hoe chieu theo cac dieu 85 hay 86 phAi ben hanh cac bien phap hop 19 de ban hang di. Theo kh5 nang cua minh ho phai thong bao cho ben kia biet 9 dinh phat mai. 3. Ben ban hang co guy& giU trong khok thu do viec ban hang dem lei mot s6 tin ngang vdi cac chi phi hop 19 trong viec b5o quk va phat mai hang hoe. Ho ph5i tri phan con lei cho ben kia. PHAN THU Tlf
NHCING QUI DINH CUOI CLING Digu 89. T6ng thu k9 Lien hiep qu6c

duoc chi dinh la nvoi giif It.tu chi& b5n C6ng Ltdc nay.
Digu 90. C6ng utic nay khong inh

huang den hieu lut ciia bet k9 mot di6u utc qu6c tii nao da dul.c hay se du'oc k9 ket ma bao gam nhitng quy dinh lien quan d6n cac N./6n d6 la d6i Wong di6u chinh cua Cong Li& nay, voi dieu kien la cac ben cua hop d6ng phai c try sei thuong mai tai cac qu6c gia thanh vien cua dieu utc qu6c t6 do.
Digu 91. 1. Cong utc nay se d6 ng6 cho cac ben k9 ket tai phien hop be mac dm h6i nghi Lien hop qu6c ve hop Tong mua, ban hang hoe qu6c to va se de ng6 cho cac qu6c gia k9 ket tai try sa Lien hop queic

a New York, cho to' ngay 31-11-1988.

(2) This Convention is subject to 2. C6ng6c nay phai dt.toc su phe 420

ratifcation, acceptance or approval by the signatory States. (3) This Convention is open for accession by all States which are not signatory States as from the date it is open for signature. ratification, of Instruments (4) acceptance, approval and accession are to be deposited with the Secretary General of the United Nations.

chub, chip nhan hay chugn y cac qu6c gia k9 ten. 3. C6ng udc nay se nhin sit gia nhap tit ca cac qu6c gia khong k9 ten, kg tit ngay C6ng u'oc dg ng6 cho cac ben k9 kit. 4. Vic phe chugn, chip nhan, chub 9 va tip can phi &roc clang k9 vdi T6ng Thu' k9 Lien hop qu6c.

Article 92.
(1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention. (2) A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies.

Digu 92.
1. MOt qu6c gia thanh vien c6 thg, vac) luc k9 kit, phe chub, chip nhan, chugn y hay gia nhip, tuyen b6 se kh6ng bi rang buOc phin thct hai, hay phin tha ba cua Cong udc nay. 2. MOt quOc gia thanh vien, chigu theo di6u khoan ten, du'a ra mot tuyen bO ve phin thu. hai hay phin thU ba ctiia Cong udc nay, se kh6ng du'oc coi la mot qu6c gia thanh vien theo nghia coa khoa'n 1 Dieu 1 dm Cong udc nay ve cac van de quy Binh trong phgn cua COng tido c lien quan Ten tuyen b6 do.

Article 93. (1) If a Contracting State has


two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time. (2) These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends.

Digu 93.1. Ngu mot qu6c gia thanh vien


ma bao gom hai hay nhigu don vi lanh th6, trong d6 theo hign phap cua qu6c gia cac hO thong phap luat khac nhau dudc ap dung cho cac vin a la d6i tu'ong digu chinh cua C6ng udc nay thi qu6c gia do c6 thg, vao luc k9 kit, phO chuan, chip nhin, chugn y hay gia nhap, tuyen b6 rang Cong udc nay se ap dung cho tat ca cac don vi lanh th6 hay chi cho mot hay nhi6u don vi va c6 thg bit di luc nao scta d6i tuyen b6 d6 bang mot tuyen b6 khac. 2. Cac tuyen b6 nay se duoc th6ng bao cho ngudi giCt 1W chigu va trong cac tuyen b6 nay phai n8ur6 Cong udc du'oc ap dung tai nhang don vi lanh th6 nao. 421

(3) If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends.

3. Neu chigu theo mot tuyen b6 di.roc lam dung theo dr& nay thi C6ng Li& nay ap dung cho mot hay nhi6u don vi lanh th6 cUa mot quoc gia thanh vien, nhu'ng khOng phai cho tat ca, va ngu try so thuong mai cua mot ben hop dang clang tai qu6c gia do, thi theo myc dich cUa COng u'dc nay, try sa thyong mai do se du'oc coi la kh6ng clang mot qu6c gia thanh vien, tit khi try so thu'ong mai do (long tai mot don vi lanh th6 not Cong tioc duoc ap dung. 4. Neu mot quoc gia thanh vien khong ra tuyen b6 chigu theo khoan mot di6u nay thi C6ng udc se ap dung cho tat ca cac don vi lanh th6 cua qu6c gia do.
Di6u 94.

(4) If a Contracting State makes no declaration under paragraph (1) of this article, the Convention is to extend to all territorial units of that State.
Article 94.

(1) Two or more Contracting States which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to Contracts of sale or to their formation where the parties have their places of business in those States. Such declarations may be made jointly or by reciprocal unilateral declarations.

1. Hai hay nhi6u quoc gia thanh vien, khi ap dung cac quy tgc phap 19 trong ty' hay giOng nhau ve nhang van de thuldc pham vi di& chinh cUa C6ng utc nay, bgt cif luc nao cung c6 thg tuyen b6 kh6ng ap dung C6ng u'dc cho cac hop d6ng mua ban hogc cho viec k9 ket cac hop d6ng nay trong nhimg truOng hop khi cac ben c6 try so thu'ong mai tai qu6c gia nay. Cac quoc gia co the ding nhau ra tuyen 136 not tren hogc trao cho nhau nhang tuyen b6 don phu'ong ye van de nay. 2. Neu mot qu6c gia thanh vien d6i vdi cac van de du'oc digu chinh bai Cong utic nay, ap dung cac quy tac phap 19 Wong ty* ho'ac gi6ng voi cac quy tgc phap 19 cUa mot hay nhi6u qu6c gia kh6ng phai la thanh vien thi qu6c gia d6 co the bgt cif Itic nao, tuyen b6 rang ban C6ng udc se kh6ng ap dung cho cac hop clang mua ban hay cho viec k9 ket cac hop dang mua ban hay cho viec k9 1(61 cac hop clang nay neu cac ben c6 try so thuong mai tai cac qu6c gia kh6ng phai la thanh vien C6ng u'dc.

(2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-contracting States may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States.

(3) If a State which is the object of a 3. Khi mot qu6c gia lien quan den mot 422

preceding the under declaration paragraph subsequently becomes a Contracting State, the declaration made will, as from the date on which the Convention enters into force in respect of the new Contracting State, have the effect of a declaration made under paragraph (1), provided that the new Contracting State joins in such declaration or makes a reciprocal unilateral declaration. Article 95. Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1) (b) of article 1 of this Convention. Article 96. A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State. Article 97. (1) Declarations made under this Convention at the time of signature are subject to confirmation upon ratificatton, acceptance or approval. (2) Declarations and confirmations of declarations are to be in writing and be formally notified to the depositary. effect takes declaration A (3) simultaneously with the entry into force

tuyen b6 duoc lam chigu theo khoan tr8n sau do tra thanh mot qu6c gia thanh vien, thi tuyen b6 nay, kd tit ngay ban Cong Li& nay c6 hi8u luc d6i chigu theo khoan 1, viii di6u ki8n la qu6c gia thanh vien m6i d6, chap nhan tuy8n b6 nay hay ra mot tuy6n b6 don phu'ong c6 tinh chat tuong ho.

Digu 95.

Moi quOc gia c6 thd tuyen b6, khi nap van ban phe chudn, chap nhan, chudn y hay gia nhap, rang qu6c gia do se ph6ng IDi rang bu6c be i cac qui dinh tai doan b khoin 1 di6u thi' nhat cUa Cong u'dc nay.
Digu 96. Ngu luat cua mot qu6c gia thanh vien qui dinh hop dor-1g mua ban phai duoc ky k6t hay xac nhan bang van ban thi qu6c gia do c6 thd bat cif 16c nao tuyen b6 chi6u theo di6u 12, rang moi qui dinh dia cac di6u 11, 29 hay dm phan thit hai Cong u'dc nay cho phep mot hinh thCtc khac v6i hinh thac van ban cho vi8c 1(9 1(81 seta didi hay cham dCrt hop dong mua ban, hay cho moi chao hang, chap nhan chao hang hay sct the' hi8n dinh nao khac se khong ap dung n6u nhu chi can mot trong cac ben c6 try so thu'ong mai tai qu6c gia. Digu 97. 1. Cac tuyen b6 duoc lam chigu theo C6ng u'Oc nay vao luc 1(9 k6t phai duoc xac nhan khi phe chudn, chap nhan hay chudn y. 2. Cac tuyen b6 va stt xac nhan cac tuyen b6 phai duoc lam bang van ban va chinh thitc th6ng bao cho ngu'di giii luu chigu. 3. Cac tuyen b6 se c6 hi8u luc vao ngay C6ng u'dc nay bat Tau c6 hi8u ILfc doi 423

of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary. Reciprocal unilateral declarations under article 94 take effect on the first day of the month following the expiration of six months after the receipt of the latest ieclaration by the depositary. (4) Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary. Such withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary. (5) A withdrawal of a declaration made under article 94 renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article.

vdi qu6c gia tuyen b6. Tuy nhien cac tuyen b6 ma ngudi giil km chigu chinh thitc nhan duoc sau ngay Cong tido c hiau kic se c hiau lut vao ngay dau thang tip theo sau khi hgt mot thdi han 6 thang kg tit ngay ngudi gift km chigu nhan lam tuyen b6. Cac tuyen b6 don phuong va ttiong h6 duoc lam chigu theo Diau 94 se c hiau lut vac) ngay dau thang tip sau khi hat mot thdi han 6 thang kg tit ngay ngudi giCtAi chigu nhan duoc tuyen b6 cuoi 4. Bat cu' qu6c gia nao ra mot tuyen b6 chigu theo C6ng Lido nay d6u c thg bat nao rut lui tuyen b6 do bang mot friOng bao chit-1h thitc bang van ban cho ngudi gia km chigu. Su thu hoi nay se c hiau lut vao ngay dau ,thang ti6p theo sau khi hat thai han 6 thang kg tit ngay ngudi gift lu'u chigu nhan duoc thOng bao. 5. Rut lui mot tuyen b6 duoc chigu theo Di6u 94 kg tit ngay co hiau kit cung se cham &it hiau lut cua moi tuyen b6 tu'ong h6 dia mot qu6c gia khac chigu theo diau nay.

Article 98.
No reservations are permitted except those expressly authorized in this Convention.

Digu 98.
Khong mot bao ktu nao duoc cho phep ngoai cac bao 1W duoc cho phep bdi C6ng udc nay.

Article 99.
(1) This Convention enters into force, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of deposit of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92. (2) When a State ratifies, accepts, 424

Di61.1 99.
1. C6ng ubc nay se bat dau cc!) hiau kit phu thuOc vao cac qui Binh cua khoan 6 di6u nay, vao ngay dau thang tigp theo sau khi hat mot han kSt 12 thang kg tit ngay van ban phe chuan, chap nhan chuan y hay gia nhap duoc da trinh kg ca nhi-trig van ban chi:fa dy'ng mot tuyen b6 duoc lam chigu theo di6u 92. 2. Khi mot qu6c gia phe chuan, chap

approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession. (3) A State which ratifies, accepts, approves or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect. (4) A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part III of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying the Government of the Netherlands to that effect.

nhan hay chub y C6ng Ltdc nay hoac gia nhap Cong ubc sau ngay van bin phe chub, chip nhan hay chuin y, gia nhap this mUdi dudc de trinh, Cong udc ngoai tit khong chip nhan se bat dau c hieu lyc doi vdi qu6c gia do vdi cli6u kien tuan tho cac qui Binh khoin 6 dieu nay vao ngay dau thang tip theo sau khi het mot thdi han 12 thang ice ttt ngay van bin phe chuan, chip nhan, chub y hay gia nhap dtioc de trinh. 3. Moi qu6c gia phe chub, chip nhan hay chub y C6ng udc nay hay gia nhap Cong udc va la thAnh vien cua Cong udc: Luat thong nhit ve 1(9 kat cac hop d6ng mua ban hang hoa qu6c to lam tai La Haye ngay 1/7/1964 (C6ng udc La Haye ngay 1/7/1964) va C6ng udc Luat th6ng nhit Nie mua, ban hang hda queic to (Cong tidc La Haye 1964 v6 mua ban) hoac IA thanh vien coa c6 hai C6ng tidc La Haye, se phi d6ng thdi hug' be), tuji trudng hop, C6ng udc La Haye 1964 ve mua ban hay C6ng Lidc La Haye ve kji ket hop d6ng hoac ca hai Cong udc bang cach gCti mot th6ng bao vdi Chinh phi) Ha Lan Nie viec nay. 4. M6t qu6c gia thanh vien dia COng udc La Haye 1964 v6 mua ban hang hoa ma phe chub chap nhan hay phe chub y C6ng udc nay (tut C6ng udc Vien 1980) hoac gia nhap Cong udc nay va tuyen b6 hay da tuyen b6 chigu theo dieu 62 rang ho kh6ng bi rang bu0c bdi phin this hai caa Cong udc, se hOy 136 vac) lOc phe chub, chip nhan chub y hay gia nhap, C6ng udc La Haye 1964 ve mua ban hang hoa bang cach giti mot thong bao vdi myc (zilch do cho Chinh phO Ha Lan. 5. Moi qu6c gia thanh vien cOa Cong udc La Haye 1964 v'e kji kat hop d6ng ma ph& chuan, chip nhan hay chuan y

(5) A State party to the 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the

425

present Convention and declares or has declared under article 92 that it will not be bound by Part Ill of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect. (6) For the purpose of this article, ratification, acceptances, approvals and accessions in respect of this Convention by State parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective. The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the Conventions, so as to ensure necessary co-ordination in this respect. Article 100. (1) This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1) (a) or the Contracting State referred to in subparagraph (1) (b) of article 1. (2) This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1) (a) or the Contracting State refered to in subparagraph (1) (b) of article 1. Article 101. (1) A Contracting State may denounce 426

Cong u'dc nay, hoac gia nhep Cong u'dc nay va tuyen b6 hay da tuyen bo chi& theo dieu 92 rang ho kh6ng bi rang bu6c bdi ph6n thO' ba cua Cong t..rdc se huji b6 vao luc phe chugn, chap nhen chugn y hay gia nhep, bAn COng u'dc La Haye 1964 v6 kji ket hop &rig bAng cach guff mot thong cao vdi muc dich d6 cho Chinh phU Ha Lan. 6. Vi muc dich cua dieu nay, cac su' phe chugn, chap nhen, chugn y va gia nhep Cong u'dc nay cua cac quoc gia thanh vien cua Cong L.rdc La Haye 1964 v6 kj/ ket hop Tong hay Cong tido La Haye 1964 ve mua ban hang hoa chi bgt d6u c6 hieu lut kd tit ngay cac th6ng bao huj/ !DO cua cac qu6c gia d6 d6i voi hai Cong utic not tren cang se c6 hieu lut. Ngu'di giCt IUu chi& ban Cong u'dc nay se thoa thuen voi Chinh phil Ha Lan, von la ngu'a giCt chi& cac Cong u'dc . 1964, cid ci6m bAo su' ph6i hop can thiOt nay. y6 van

Digu 100. 1. Cong u'dc nay gp dung cho viec kji ket cac hop dong trong nhang tru'Ong hop khi mot de nghi kji 1(61 hop d6ng dutic lam vao ngay Cong utic b6t deu c6 hieu lut hoac sau ngay d6 d6i vdi cac qu6c gia thanh vien not tai doan a khoan 1 dieu thO' nh6t hoac d6i vdi qu6c doan b khoAn 1 gia thanh vien not dieu thit nhet. 2. C6ng u'dc nay chi ap dung cho cac hop d6ng du'oc kjr ket vao dung ngay hoac sau ngay C6ng u'dc bgt dgu c6 hieu doi voi cac quOc gia thanh vien not tai doan a khoan 1 dieu this nhaI hoac d6i voi qu6c gia thanh vien not 8 doan b khoan 1 di6u this nhal. Dieu 101. 1. Moi qu6c gia thanh vien c6 thd huji

this Convention, or Part II or Part III of the Convention, by a formal notification in writing addressed to the depositary. (2) The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary. DONE at Vienna, this day of eleventh day of April, one thousand nine hundred and eighty, in a single original, of which the Arabic, Chinese, English, French. Russian and Spanish texts are equally authentic. IN WITNESS WHERE OF the undersigned plenipotentiaries being duy authorized by their respective Governments have signed this Convention.

!DO C6ng LI& nay hoac phan tha hai hay

thin ba cua C6ng u'dc, bAng mot thOng


cao chinh thac bAng van ban thu' girl cho ngubi giCt luu chigu. 2. Su huj/ b6 se bat dau co hieu vao ngay bat dau thang tigp theo sau khi het mot thoi han 12 thang kg tif ngay ngu'di lu'u chi& nhan duoc thong cao. Neu thong cao an dinh mot thoi han dal hon cho ski bat dau c6 hieu viec huj/ b6 Cong Lido thi sir huj/ bO se bat dau co hieu Ric kg tir khi ket thuc thoi han nay sau ngay ngu'ai giii luu chigu nhan duoc lam th6ng bao. Lam tai Vien, ngay mu'di mot thang tU nam mot ngan chin tram tam muoi, thanh mot ban chinh ma cac ban tigng Anh, A Rap, Tay Ban Nha, Trung Qu6c, Nga, Phap deu la ban chinh thut. De chang thifc cac vi dac menh toan guy& hi ten du'di day du'oc cac Chinh phu cUa minh uj/ quyen, da ky vac) van ban Cong tic nay.

427

2. HOP DONG MUA BAN TAI SAN THEO LUAT DAN SU . .00 CHXHCN VIET NAM CUAN
CONTRACTS FOR THE SALE AND PURCHASE OF PROPERTY I. General provisions on contracts for the sale and purchase of property Article 421. Contracts for the sale and purchase of property. A contract for the sale and purchase of property is an agreement between parties where by the seller has the obligation to hand over the property transfer the ownership rights to that property to the purchase and to receive payment, while the purchase has the obligation to accept the property and make payment to the seller. Article 422. Objects of a sale and purchase contracts 1. The objects of a sale and purchase contract may be an object and/or the property right. The object and property right must actually exist and be permitted for transaction. 2. In cases where the object of a sale and purchase contract is an object, that object must be determined by its use value, kind, quantity and quality 3. In cases where the object of sale and purchase contract is a property right, the seller must have documentation or other evidences showing that such right belongs to the seller. Article 423. Quality of the object for sale and purchase 428

HOP DONG MUA BAN TAI SAN

I. Qui dinh chung y6 hlp d6ng mua ban tai san Digu 421. Hop dor-1g mua ban tai san Hop long mua ban tai san la su' thoa thuan giila cac ben, theo do ben ban c nghia vu giao tai san va chuygn quy6n s hal tai san do cho ben mua va nhan ti6n, con ben mua c nghia vu nhan tai san va tra tin cho ben ban.

Di6u 422. Doi tu'ong cua hop d6ng mua ban.

1. 06i tu'ong cua hop d6ng mua ban co thg la vat va quyan tai san. Vat va quyan tai san phai c thut va du'oc phep giao dich.
2. Trong truting hop doi tu'ong cua hop d6ng mua ban It: vat thi vat phai du'oc xac dinh bang gia tri sit dung, chimg loai, s6 lu'ong va chat lu'ong. 3. Trong twang hop d6i tu'ong cua hop d6ng mua ban la quyan tai san, thi phai c giay td hoac cac bang chiing khac chung minh quygn do thuc se, hal cua ben ban. Di6u 423. Chat lu'ong cua vat mua ban.

1. The quality of the objects for sale and purchase shall be agreed upon by the parties. 2. In cases where the quality of the object has been registered or is prescribed by competent State authority, the quality of the object shall be determined in accordance with the registered standards or as prescribed by the competent State authority. 3. When there is no agreement between the parties or provisions of law on the quality of the object then the quality of the object for sale and purchase shall be determined according to the purpose of use and the average quality of objects of the same kind.

1. Chat lu'ong cOa vat mua ban do cac ben thoa thuan. 2. Trong tru'ong hop chat lu'ong dia vat da du'oc clang k9 hoac du'oc co quan nha nit is c6 thgm guy& quy dinh, thi chat !Yong cOa vat du'oc xac dinh theo cac trail chi& da Bang k9 hoac theo quy dinh cOa co quan nha niiOc c6 tha'rn quygn. 3. Khi cac ben kh6ng c6 thoa thuan va phap luat kh6ng c6 quy dinh ve chat lu'ong, thi chat lu'ong cOa vat mua ban dtioc xac dinh theo muc dich sit dung va chat lu'ong trung binh cua vat ding loai.

Article 424. Price and mode of payment


1. The price shall be agreed upon by the parties or determined by a third party at the parties' request. With respect to the property for which the State has set a price frame, the price shall be agreed upon by the parties within the range of that price frame. In case where the parties have agreed that the payment shall be made according to the market price, then the price shall be determined at the time and place of payment. 2. The parties may agree on a price fluctuation coefficient in case of a fluctuation in price. 3. The mode of payment shall be agreed upon by the parties or as prescribed by law.

Digu 424. Gia ca va phu'ong thac thanh


toan 1. Gia 66 do cac ben thoa thuan hoac do ngu'oi this 3 xac dinh theo yeu cgu coa cac ben. 06i viii tai sari ma Nha nu'oc c6 quy dinh v6 khung gia, thi cac ben thoa thuan gia trong pham vi khung gia do.

Trong tru'ong hop cac ben thoa thuan thanh toan theo gia thi twang, thi gia du'oc xac dinh tai dia digm va th6i digm thanh toan. 2. Cac ben c6 thg thoa thuan ap dung hg s6 tru'ot gia khi c6 bign deing ve gia. 3. Phu'ong thac thanh Wan do cac ben thoa thuan hoac theo quy dinh cOa phap lust. 429

Article 425.

Time limit for the performance of a sale and purchase contract 1. The time limit for the performance of a sale and purchase contract shall be agreed upon by the parties.

Digu 425. Thai han thyc hign hop citing


mua ban 1. Thai han thcfc hign hop dang mua ban do cac ben thoi thuan. Ben ban phi giao tai san cho ben mua dung thai han da thoi thuan; ben ban chi du'oc giao tai san truck truac thai han ngu &roc ben mua clang 9. 2. Khi cac ben khong thoi thugn thai han giao tai san, thi ben mua c6 quygn yeu cgu ben ban giao tai sin va ben ban ding c6 guy& yeu cau ben mua nhan tai sin bat ca lbc nao, nhu'ng phi bao truac cho nhau trong mat thai gian hop l9, ngu kh6ng c6 thoi thuan khac.

The seller shall hand over the property to the buyer at the time as agreed upon; the seller may only hand over the property prior to the time limit, if the buyer so agrees 2. When there is no agreement between the parties on the time limit for handing over the property, the buyer shall have the right to demand the seller to hand over the property and the seller shall also have the right to demand the buyer to accept the property at any time, but the parties must notify each other in advance within a reasonable period of time, if not otherwise agreed. 3. When there is no agreement between the parties on the time limit for payment, the buyer shall make payment upon receipt of the property.

3. Khi cac ben kh6ng c6 thoi thuan vg thai han thanh toan, thi ben mua phi thanh toan ngay khi nhan tai san. Digu 426. Dia digm giao tai sin Cac ben thoi thuan vg dia digm giao tai sin; ngu kh6ng c6 thoi thugn, thi ap dung quy dinh tai Digu 289 cua Bq luat nay

Article 426. Place for handing over the


property The property shall agree on the place for handing over the property; if there is no agreement, the provision in Article 289 of this Code shall apply.

Article 427. Modes of handing over the


property. The property shall be handed over according to the mode agreed upon by the parties subject to the nature and object of the contract; if there is no agreement on the mode of handing over

Di6u 427. Phuang thac giao tai san


Tai sin du'oc giao theo phu'ong thac do cac ben thoi thuan tuj/ theo tinh chgt va doi tilting cua hop &rig; ngu kh6ng c6 thoi thuan vg phuang thac giao tai sin, thi tai san do ben ban giao mat Ian, giao

430

the property, the seller shall hand over the property in one installment directly to the buyer. Article 428. Liability for handing over objects in an incorrect quantity. 1. In cases where the seller hands over the objects in a quantity greater than that agreed upon, the buyer shall have the right not to accept the excess portion. If the buyer accepts, he/she must pay for the excess at the agreed price. 2. In cases where the seller hands over the objects in quantity lesser than that agreed upon, the buyer shall have one of the following rights: a) To rescind the contract and demand compensation for damage; b) To accept the portion already handed over and demand compensation for damage; c) To accept portion already handed over and set a time limit for the seller to hand over the remainder. Article 429. Liability for handing over objects in incomplete sets 1. In cases where the object is handed over in an incomplete set, there by making the purpose of the use of the object unachievable, the buyer shall have one of the following rights: a) To rescind the contract and demand compensations for damage; b) To accept the object and demand the seller to hand over the remaining part or components, demand compensation for damage and postpone payment for the

trvc tip cho ben mua.

Digu 428. Trach nhiem do giao vat khong diing s6 lu'ong. 1. Trong trubng hop ben ban giao vat voi s6 Kiang nhieu hon s6 luong de tho5 thuan, thi ben mua c6 quyen khong nhan phan doi ra; net., nhan, thi phi thanh toan theo gia tho5 thuan doi voi phan d6i ra. 2. Trong tru'ong hop ben ban giao It hon

s6 lu'ong da thoa thuan, thi ben mua c6 mot trong cac guy& sau day:
a) Huy 1)6 hop d6ng va yeu ceu boi thu'Ong thiet hai; b) Nhan phan d5 giao va yeu ceu boi thLtong thiet hai; c) Nhan phan d5 giao va dinh thdi han de ben ban giao tip phan con thieu. Digu 429. Trach nhiem do giao vat khong d6ng be 1. Trong twang hop vat difoc giao khong dong b6 lam cho muc dich su dung dia vat khong dat du'oc, thi ben mua c6 mot trong cac quyen sau day:

a) Huy bo hop dong va you ceu boi


thutsng thiet hai; b) Nhan va y8u ceu ben ban giao tip

phan hoec b6 phan can thieu, yeu ceu b6i thaang thiet hai va ho5n thanh than phan hoac be ph5n 115 nhan cho

431

part of components received until the complete set is handed over. 2. In cases where the buyer has made payment but has not yet received the object due to the hand over of an incomplete set, the buyer shall be paid interest on the amount paid at the rate for overdue debts specified by the State Bank and demand the seller to compensate for damage due to the hand-over of the incomplete set, starting from the time the contract must be performed to the time the complete set is handed over.

den khi vat &too giao 'Jong bQ. 2. Trong tn.tdng hop ben mua da trA tin nhu'ng chu'a nhan vat do giao kh6ng Tong bQ, thi &too trA lai d6i vdi s6 tien da tra theo lai suet no qua hen do Ngan hang nha nu'etc qui dinh va yeu cau ben ban phe' i b6i thu'Ong thiet hei do giao vat khong Tong 13Q, ke tii thoi diem phi thut hien hop (long cho den khi vat dt.toc giao 'Jong b0.

Article 430. Liability for handing over


objects of the wrong kind In cases where the object handed over is of the wrong kind, the buyer shall have one of the following rights: 1. To rescind the contract and demand compensation for damage; 2. To accept the object and make the payment at the price agree upon by the parties; 3. To demand the hand over of the right kind of object and compensation for damage;

Di61.i 430. Trach nhiem giao vat khong


diing char-1g loci Trong tri.tong hop vat &roc giao khong dung chang loaf, thi ben mua c6 mot trong cac quy6n sau day: 1. Huy b6 hop (long va yeu cau boi thu'ong thiet [lei; 2. Nhan va thanh toan theo gia do cac ben tho6 thuan; 3. Yeu cau giao dOng chung loaf va b6i thuting thiet hai

Article 431. The duty to pay


1. The buyer must pay in full at the place and time as agree upon. 2. The buyer shall have to pay interest starting from the date the payment is overdue as specified in Clause 2 of Article 313 of this Code, except in cases where otherwise agreed of prescribed by law.

Digu 431. Nghia vu trA tin


1. Ben mua phi tr5 do tin vao thoi diem va tai dia diem da tho6 thuan. 2. Ben mua phi tr5 lai, Ice tit ngay cham tra theo qui dinh tai kho6n 2 Dieu 313 cila BQ luat nay, tit taking hop c6 tho6 thuan khac hoac phap luat c6 qui dinh khac.

Article 432. The moment for the transfer of ownership rights


1. The rights to ownership over a 432

Di6u 432. Thai diem chuyen quy6n sa


hitu 1. Quy6n sa hEtu d6i vOi tai sAn mua

property for purchase and sale shall be transferred to the buyer as from the moment at which the buyer receives the property, if not otherwise agreed or prescribed by law. 2. With respect to a contract for purchase and sale of property over which the ownership rights must, as prescribed by law, be registered, the ownership right shall be transferred to the buyer as from the moment at which the procedures for registering the ownership rights over such property have been completed.
Article 433. The moment for bearing

ban du'oc chuy'en cho ben mua, kg tit thdi diem ben mua nhen tai san, ngu kh6ng c6 thoa thuen khac hoac phap luat kh6ng c6 qui dinh khac. 2. D6i voi hop dung mua ban tai san ma phap luet qui dinh tai san do phai clang k9 quygn so hiiu, thi quygn so hCtu cluac chuygn cho ben mua, kg tit thdi digm hoan thanh tilt) tuc clang kY quygn so hCtu d6i vdi tai san do.

Di6t., 433. Thdi diem chiu rui ro

risks 1. The seller bear the risks to the property for purchase and sale until the property has been handed over to the buyer, while the buyer shall bear risks to such property from the time of receiving it, if not otherwise agreed. 2. With respect to a contract for purchase and sale of property over which the ownership rights must, as prescribed by law, be registered, the seller shall bear risks to this property until the registration procedures have been completed, and the buyer shall bear the risks from the moment at which the registration procedures have been completed even in cases where the buyer has not yet received the property; if not otherwise agreed.
Article 434. Transportation costs and

1. Ben ban chiu rui ro d6i vdi tai san mua ban cho den khi tai san &roc giao cho ben mua, con ben mua chiu rui ro d6i vdi mua ban, kg tit khi nhen tai ngu kh6ng co thoa thuen khac. 2. D6i vdi hop dOng mua ban tai san ma phap luet qui dinh tai san do phai clang k9 cho quygn s6 hitu, thi ben ban chiu rui ro cho den khi hoan thanh thu tuc Bang k9, ben mua chiu rui ro, kg tCf thdi diem hoar' thanh thO tuc clang k9, kg 66 khi ben mua chu'a nhen tai san, ngu khong c6 thoa thuen khac.

other costs relating to the transfer of ownership rights. In cases where there is no agreement or the law does not provide for transportation costs and other costs relating to the transfer of ownership rights, the seller must bear the costs of transportation to the place for performance of obligations and other

Digu 434. Chi phi van chuyen va chi phi lien quan den viec chuygn quygn so

hau. Trong tru'ong hop khong co thoa thuen va phap luet khong qui dinh vg chi phi van chuygn va chi phi lien quan den viec chuygn quygn so hitu, thi ben ban phai chiu chi phi vg van chuygn den dia diem thu'c hien nghia vu va chi phi lien quan den viec chuygn quygn so hCtu. 433

costs relating to the transfer of ownership rights. Article 435. Obligation to provide information and instructions for use. The seller is obliged to provide necessary information on the property for purchase and sale, and instructions for use of such property; where the seller has not fulfilled this obligation, the buyer is entitled to request the seller to fulfill this obligation; and it the seller still does not fulfill it, the buyer is entitled to cancel the contract and demand compensation for damage. Article 436. Guarantee of ownership rights of the buyer to a property that has been purchased. 1. The seller is obliged to guarantee that the ownership rights to a property sold to the buyer are not disputed by a third party. 2. In cases where the property is disputed by a third party, the seller must take sides with the buyer in order to protect the interest of the buyer; where a third party is entitle to own part or the entire property for purchase and sale, the buyer is entitled to cancel the contract and demand that the seller compensate for damage. In cases where the buyer knows or must have know that the property for purchase and sale is under the ownership of a third party, and still purchase it, he/she must return the property to its owner and is not entitled to demand compensation for damage. Article 437. Guarantee of the quality of an object for purchase and sale 1. The seller must guarantee the use Digu 435. Nghia vu cung cap th6ng tin va hudng dan cach sit dung. Ben ban c nghia vu cung cap cho ben mua thong tin can thigt ve tai san mua ban va Wong dAn cach sit dung tai san do; neu ben ban khOng thu'c hien nghia vu nay, thi ben mua c6 quygn yeu cgu b8n ban pi-16i thksc hien va neu ben ban van kh6ng thu'c hien, thi ben mua c guy& huji 1)6 hop d6ng va yeu cgu 136i thudng thiet hai. Digu 436. Bao dam quygn s8 hitu cOa ben mua doi vdi tai san mua. 1. Ben ban c6 nghia vu bao dam guy&

so hCtu d6i vdi tai san de ban cho ben


mua khong bi ngudi this ba tranh chap. 2. Trong twang hcip tai san bi ngudi this ba tranh chap, thi ben ban phgi dung v6 phia ben mua de bao ye quygn 10i cua ben mua; neu ngudi this ba c6 quygn so him mot phgn hogc toan bQ tai san mua ban, thi ben mua c quyen huji bd hop &rig va yeu cgu ben ban b6i thu'ong thiet Trong tru'Ong hop ben mua Vet hoac phai biet tai san mua ban thuOc 88 hitu coa ngudi this ba ma van mua, thi phai tra lai tai san cho chu so hisu va kh6ng co quygn yeu cgu tool thuting thigt hal

Digu 437.136o dam chat Itiong vat mua ban 1. Ben ban phgi bgo dam gia tri sit

434

value or property of an object for purchase and sale; if after the purchase, the buyer discovers a defect that devaluates or reduces the use value of the object already purchased, he/she must promptly notify the seller of the defect and is entitled to request the seller to repair or change the defective or devalued object and compensate for damage, if not otherwise agree upon. 2. The seller must guarantee that the object for sale conforms with the packaging, the on descriptions trademark or with the sample that has been selected by the buyer. 3. The seller shall not be liable for defects in the following cases: a) Defect that the buyer knew or must have known at the time of purchase; b) The objects auctioned and/or objects sold at second-hand shops; c) The defect is caused by the buyer himself/herself. Article 438. Warranty obligation The seller shall have a warranty obligation to an object for purchase and sale for a period of time called warranty time limit, if the warranty is agreed upon by the parties or prescribed by law. Article 439. Right to demand warranty The warranty time limit shall be calculated from the moment at which the buyer has the obligation to receive the object. Within the warranty time limit, if the buyer discovers a defect in the object purchased and sold, he/she shall be entitled to request the seller to repair it free of charge, reduce its price, exchange the defective thing for another object, or return the object for a refund.

dung ho5c cac d5c tinh cua vat mua ban, neu sau khi mua ma ben mua phat hien khuyel tat lam mat gia tri ho5c giam sut gia tri so' dung cua vat d5 mua, thi phai bao ngay khi phat hien ra khuyel tat va c quyen yeu cau ben ban su'a chCia, dOi vat c khuyel tat, Om gia va boi thuong thret hai, neu khong c th6a thuan khac. 2. Ben ban phai dam bao vat ban phu hop veil ski ma to tren bao bi, nhan hi6u hang hoa ho5c pha hop vai mau ma ben mua da Iota chon. 3. Ben ban khOng chiu trach nhi6m ve khuy6t tat cua vat trong cac tru'ang hop sau day: a) Khuya tat ma ben mua da bit ho5c phai bit khi mua; b) Vat ban clau gia, vat ban 8 cita hang do c0; c) Ben mua c I6i gay ra khuy6t tat cua vat. Digu 438. Nghia vu bao hanh Ben ban c nghia vu bao hanh doi vdi vat mua ban trong mot thdi han, goi la thdi han bao hanh, neu viec bao hanh do cac ben thoa thuan ho5c phap luat c qui Binh. Digu 439. Quy6n yeu cau bao hanh Thai han bao hanh duoc tinh ke tii thdi diem ben mua c nghia vu phai nhan vat. Trong thdi han bao hanh net., ben mua phat hien dudc khuy6t tat cua vat mua ban, thi c quyen yeu cau ben ban sita chaa khong phai tra ti6n, giam gia, dO) vat c khuye't tat 16y vat khac hoc tra

lai vat va lay lai ti6n.

435

Article 440. Repair of the objects within the warranty time limit.
1. The seller must repair the object and ensure that the object meets all the quality standards or characteristics as promised. 2. The seller shall bear the costs for repair and transportation of the object to the place of repair and from the place for repair to the place of residence or the head office of the buyer. 3. The buyer shall be entitled to request the seller to complete the repair within the time limit agreed upon by the parties or within a reasonable period of time. Where the seller cannot repair or complete the repair or within such time limit, the buyer shall be entitled to demand a price reduction, an exchange of the detective object for another one, or a return of the object for a refund.

Dieu 440. Si:ta chCta vat trong thdi gian


bao hanh. 1. Ben ban phai seta china vat va bao dam vat c6 du cac tieu chub chat lacing hoac c6 dU cac (lac tinh de cam 1(6'1. 2. Ben ban chiu chi phi vg seta china va van chuyen vat den not seta china va tit not sita china den noi can tru hoac tru so cilia ben mua. 3. Ben mua c6 guy& yeu ceu ben ban hoar) thanh viec sita china trong thdi han do cac ben thoa thuan hoac trong mot thdi gian hop 19; neu ben ban kh6ng the seta chila duoc hoac khong the hoan thanh viec sita china trong thdi han do, thi ben mua c6 guy& yeu ceu giam gia, vat c6 khuyet tat ley vat khac hoac tra tai vat vg Igy lai tign.

Article 441. Compensation for damage


within the warranty time limit 1. In addition to the demand for the performance of warranty measures, the buyer shall be entitled to request the seller to compensate for damage caused by technical defects of the object within the warranty time limit. 2. The seller shall not have to compensate for damage if he/she can prove that the damage has occurred as a result of the fault of the buyer. The seller shall be entitles to a reduction in the amount of compensation for damage if the buyer has not applied the necessary measures within his/her capacity in order to prevent and limit the damage.

Digu 441.136i thu'ang thiet hai trong thdi


han bao hanh. 1. Ngoai viec yeu c6u thu'c hien cac bien phap bao hanh, ben mua c6 quyen yeu cau ben ban [Doi thitong thiet hai do khuyet tat vg k9 thuat cua vat gay ra trong thdi han bao hanh. 2. Ben ban khong phai boi thu'ang thiet hai, neu chang ming duoc thiet hai x6y ra do loi cUa ben mua. Ben ban du'oc gi6m mac b6i thu'ong thiet hai, neu ben mua khong ap dung cac bien phap can thigt ma kha nang cho phep nham ngan than, han the thiet hai.

Article 442.
property rights.

Purchase and sale of

Digt,' 442. Mua ban quygn tai sAn

436

1. In cases of a purchase and sale of property rights, the seller must transfer all documents and complete the procedures for transfer of ownership rights to the buyer, whereas the buyer must pay money to the seller. 2. In cases where the property rights are the rights to demand payment of a debt and the seller warrants the debtor's ability to pay, the seller shall be jointly liable for the payment if the debtor fails to pay the debt when it is due. 3. The moment at which the ownership of property rights shall be the moment at which the buyer receives all documents showing the ownership of such property or from the moment of registration of the transfer of ownership rights, if so prescribed by law.

1. Trong tru'ong hop mua ban quygn tai san, thi ben ban phai chuydn gigy td va lam thO tuc chuydn giao quy6n se, hCtu cho ben mua, con ben mua phai tra tin cho b8n ban. 2. Trong tru'Ong hop quy6n tai san la quy6n doi no va ben ban cam kgt bao dam kha nang thanh toan cua nguai mac no, thi ben ban phai lien ddi chiu trach nhi'8m thanh toan, ngu khi dgn han ma ngu'di mac no khong 3. Thai di6m chuydn giao quy6n so hau d6i vdi tai san la thdi didm b8n mua nhan du'oc gigy to xac nhan v6 quy6n so hau d6i vdi quy6n v6 tai san do hoac tit thdi didm clang k9 vi8c chuydn giao quygn so hitu, ngu phap luat CO qui dinh.

CONTRACTS FOR SERVICES

HOP HONG DICH VV

Article 521. Contracts for services


A contract for service is an agreement between the parties whereby the service provider shall perform a task for the party hiring the service, and the service hirer must pay service charges to the service provider.

Di6L.1 521. Hop d6ng dich vu


Hop d6ng dich vu la su' thoa thuan giiia cac ben, theo do ben lam dich vu thttc hi8n mot cong vi8c cho ben thud dich vu, con b8n thud dich vu phai tra tin cong cho ben lam dich vy.

Article 522. Objects of contracts for


service. The object of a contract for service must be a feasible task not prohibited by law and not contrary to social ethics.

Digu 522. Doi tuong cua hop d6ng dich


vy. D6i Wong cua hop Tong dich vu phai la cong vi8c c th6 thiic hi8n du'oc, kh6ng IDi phap luat cam, khong trai dao dac xa hOi.

Article 523. Obligations of the service


hirer.

Di61.1 523. Nghia vy cua ben thud dich


vu.

437

The service hirer shall have the following obligations:


1. To supply the service provider with necessary information documents and means for the performance of the task, if so agreed or if the performance of the service so requires; 2. To pay charge to the service providers as agreed upon. Article 524. Rights of the service hirer

Ben thue dich vu cO cac nghia vu sau day:


1. Cung cap cho ben lam dich vy th6ng tin, tai liOu va cac phu'ong tiOn can thi6t de thyc hiOn ding viOc, nau c thoa thuan hoac viac thyt hiOn dich vy doi h6i: 2. Tra tin tong cho ben lam thoa thuan. Digu 524. Quy6n cUa bOn thue dich vy.

The service hirer shall have the following rights:


1. To request the service providers to perform the task in accordance with the agreed quality, quantity time, limit location and other agreements: 2. In cases where the service provider violates its obligations, the service hirer shall have the right to unilaterally suspend or rescind the contract and demand compensation for damage. Article 525. Obligations of the service provider.

Bon thue dich vu c6 cac guy& sau day:


1. YOu cau ben lam dich vy thyt hian cong viOc theo dung chat lacing, s6 lu'ong, thoi han, dia diem va cac thoa thuan khac. 2. Trong truting hop ben lam dich vy vi pham nghia vy, thi ben thue dich vy c quy6n huji b6 hoac don phuong dinh chi thyc hiOn hop dung va you cau boi thuOng thiOt hai. Di6ti 525. Nghia vy cua ben lam dich vy

The service provider shall have the following obligations:


1. To perform the task in accordance with the agree quality, quantity, time limit, location and other agreements; 2. Not to assign other persons to perform the task without the service hire's consent; 3. To preserve and return to the service hirer the documents and means for performing the task after fulfillment of the task; 4. To immediately notify the service hirer of any inadequacy of information and documents and poor quality of the means for fulfilling the task; 5. To keep secret the information which 438

Ben lam dich vu c6 cac nghia vu sau day:


1. Thyt hiOn cong viac dung chat luOng, s6 lacing, thai han, dia didm va cac thoa thuan khac. 2. Kh6ng du'oc giao ngu'ai khac lam thay cong viOc, ngu kh6ng c sti dung y cUa ben thuO dich vy. 3. Bac) guar' va phai giao lai cho ben thue dich vy tai liOu va phu'ong tin du'oc giao de thyc hiOn dich vy sau khi hoan thanh cong viOc. 4. Bao ngay cho ben thue dich vy v6 viac th6ng tin, tai liOu kh6ng day dU, phu'ong tien khong dam bao chat lacing d6 hoan thanh cong viOc; 5. GO bf mat thong tin ma minh bi6t

it has come to know during the time of providing the service, if so agreed or provided for by law; 6. To compensate the service hirer for damage, if it causes the loss of, or damage to the supplied documents and means or it discloses confidential information.

di.rdc trong thdi gian lam dich vu, net., c6 thoa thuan ho8c phap luat co qui Binh; 6. Bdi thtking thiet hai cho ben thud dich vu, neu lam met mat hit hong, tai lieu, phudng tien du'dc giao ho8c Wet Id bf mat th6ng tin.

Article 526. Rights of the service provider The service provider has the following rights:
1. To request the service hirer to supply necessary information, documents and means; 2. To change the service conditions in the interests of the service hirer without necessarily having to wait for the opinion of the service hirer, if such wait be cause damage to the service hirer, but it must immediately notify the service hirer thereof; 3. To request the service hirer to pay the service charges.

Digu 526. Quy6n cua ben lam dich vu. Ben lam dich vu co cac quyen sau day:
1. Yeu cgu ben thud dich vu cung cep thong tin, tai lieu va phu'dng tien. 2. ardc thay d6i dieu ki'en dich vu vi Idi Ich cOa ben thud dich vu, ma khong nhet thiet phai cha kin dia ben thud dich vu, n6u viec chd kien se g8y thiet hai cho ben thud dich vu nhu'ng phai bao ngay cho ben thud dich vu. 3. Yeu cgu ben thud dich vu trA tien cong.

Article 527. Payment of service charge.


1. The service hirer shall pay the service charges as agreed after the task has been accomplished; if the charge rate has not been agree upon by the parties, the applicable rate shall be the average rate for task of the same type at the time and place of accomplishing the task. 2. The service hirer must pay the service charges at the place where the service is performed and when the service is accomplished, if not otherwise agreed. 3. In cases where the quality and quantity of the service are not met as agree upon or the task is not accomplished in time due to the service provider's fault, the

Dieu 527. Tra tien cong


1. Ben thud dich vu phai tr6 tien cong theo thoe thuan, khi cong viec da hoan thanh; n6u khong tho8 thuan v6 mac tien cong, thi mac tien cong la mac trung binh doi vcli cong viec ding loai tai thdi diem va dia diem hoar) thanh cong viec. 2. Ben thud dich vu phai trA tien cong tai dia diem thac hien dich via khi hoan thanh dich vu, n6u kh6ng co thoa thuan khac. 3. ..Yang taring hop chat luring, s6 *mg dich vu kh6ng dat &roc nhu' thoa thuan ho8c cong viec khong du'dc hoan thanh dung thoi han do I6i cUa ben lam

439

service hirer shall have the right to reduce the service charge and demand compensation for damage.

dich vu, thi b8n thue dich vu c6 quy6n . giam tin ding va yeu c'au b & thudng thrOt hai.

Article 528. Unilateral suspension of


the performance of a contract for service. 1. In cases where the continued performance of a service does not benefit the service hirer, it shall have the right to unilaterally suspend the performance of the contract, but must notify the service provider thereof in advance within a reasonable period of time; the service hirer must pay the service charges in accordance with quantity and quality of the work done and compensate for any damage. 2. In cases where the service hirer does not perform or fails to properly perform its obligation in accordance with the agreement, the service provider shall have the right to unilaterally suspend the performance of the contract and demand compensation for damage

Di'6u 528. Don phYong dinh chi thyc


hi8n hop d6ng dich vu. 1. Trong trudng hop vi8c tip tuc thric hi8n dich vu kh6ng c6 loi cho ben thue dich vu thi ben thue dich vu c6 quy6n don phudng dinh chi thuc hi8n hop dor-1g, nhiing phi bao cho ben lam dich vu bit truck mot thdi gian hOp ljr; ben thue dich vu phi tre tin cong theo s6 lu'ong, chat luong ma ben lam dich vu d5 thyc hiOn va boi thudng thl8t hal.

2. Trong trudng hop ben thue dich vu kh6ng thuc hi8n nghia vu cUa minh

hoac thuc hien kh6ng dOng theo thoe thuen, thi ben lam dich vu c6 quyan don
phtiong dinh chi thuc hi8n hop dong va . yeu c5u b & thudng thi8t hai.

Article 529. Continuation of a contract


for service. If after the expiry of the service period the task has not yet been accomplished and the service provider continues to perform the task while the service hirer known but does not object, the performance of the contract for service shall automatically continue in accordance with the agree contents until the task is accomplished.

Di6u 529. TAD tuc hop Tong dich vu


Sau khi d5 1(61 thbc thai han dich vu ma cong vi8c chiia hoan thanh va ben lam dich vu van tip tuc thuc hi8n cong vi8c, con ben thue dich vu bigt nhang khong ph5n d6i, thi hop d6ng dich vu dudng

nhien du'oc flap tuc thuc hien theo not dung de thoe thuen cho clan khi cong viec duoc hoan thanh. HOP SONG GIA CONG Digu 550. Hop d6ng gia cong

CONTRACTS FOR PROCESSING Article 550. Contract for processing

A contract for processing is an agreement Hop d6ng gia car -1g la su thoe thuen

440

between the parties whereby the processor performs a task to make a product at the processee's request and the latter shall receive the product and pay remuneration for the work. Article 551. contracts. Objects or processing

giCta cac ben, theo do ben nhan gia cong thu'c hi 'an mot cong vigc de tao ra san phgm theo yeu cgu cua ben dat gia cong, con ben dat gia cong nhan san phgm va tra tin cong. Digu 551. 06i toting cua hop Tong gia cong DOi Wong cua hop d6ng gia cong la vat du'oc xac dinh tut& theo mgu, theo tieu chugn ma cac ben thoa thuan hoac phap luat co qui dinh. Di6u 552. Nghia vu cua ben dat gia cong Ben dat gia cong co cac nghra vu sau day: 1. Cung cap nguyen vat lieu theo diing so luting, chat luting, thdi han va dia digm cho ben nhan gia cong, tru'ang hop cac ben c6 tho6 thuan khac; cung cap cac gray td can thigt lien quan dgn vigc gia cong;

The objects of a processing contract shall be items which are pre-determined with the models and standards agreed by the parties or provided for by law. 552. Article processee. Obligations of the

The processee shall have the following obligations: 1. To supply the processor with materials and or raw materials in accordance with the quantity, quality, time limit and place as contracted, unless otherwise agree by the parties; supply the necessary documents related to the processing work. 2. To instruct the processor performing the contract.

in 2. Chi d6n cho ben nhan gia cong thu'c hign hop d6ng; 3. Tra tin cong theo dOng tho6 thuan. Di6u 553. Quy6n cua ben dat gia cong Ben dat gia cong co cac quyen sau day: 1. Nhan san phgm gia Gong theo dung phu'ong thCtc, thdi han va dia digm da tho6 thuan; 2. Don phu'ong dinh chi thu'c hign hop d6ng va ygu cau b6i thuOng thigt hai khi ben nhan gia ding vi pham hop ging; 3. Trong truting hop san phgm kh6ng 441

3. To pay the processor a remuneration in accordance with the agreement. Article 553. Rights of the processee. The processee shall have the following rights: 1. To receive the processed products in accordance with the agree mode, time limit and place; the suspend unilaterally To 2. performation of the contract and demand compensation for any damage if the processor breaches the contract; 3. In cases where the products fails to

meet the quality and the processee agree to accept the products but demand repairs which processor is unable to repair it within the agreed time limit, then the processee shall be entitled to rescind the contract and to demand compensation for damage. Article 554. Obligations of the processor.

dam bao chat luong ma ben dat gia cong d6ng y nhan sari phdm, nhu'ng yeu cal sita chCra ma ben nhan gia cong kh6ng thd sCra chCra duoc trong thoi han da thoi thuan, thi ben dat gia ding c6 quygn huji !DO hop d6ng va yeu cau boi thtiong thiet Di6u 554. Nghia vu cua ben nhan gia cong

The processor shall have the following obligations:


1. To preserve the materials and/or raw materials supplied by the processee; 2. To notify the processee to replace the materials and/or raw materials, if their quality is poor, refuse to perform the processing if the use of such materials and/or raw materials may create products which are harmful to the society; if the processor does not give such notification or refuse, he/she shall be liable for the products turned out; 3. To deliver the products to the processee in accordance with the agreed quality, quantity, time limit and place; 4. To keep secret the information on the processing process and the created product; 5. To take responsibility for the product quality if performing the work with his/her own materials and/or raw materials; 6. To return to the processee the remaining materials and/or raw materials after the contract is completed. Article 555. Rights of the processor

Ben nhan gia cong co cac nghia vu sau day:


1. Bac) quan nguyen vat lieu do ben dat gia cong cung cap; 2. Bao cho ben dat gia ding biat de dOi nguyen vat lieu khac, neu nguyen vat lieu khong dAm bao chat lu'ong, tit ch6i thcfc hien gia cong, ngu vigc sit dung nguyen vat lieu c6 the? tao ra sAn pham nguy hai cho xa h6i; ngu khong bac, hoackngti6,phacur nhiem vg s5n pham tao ra; 3. Giao san phgm cho ben dat gia cong &mg chat lu'ong, s6 luting, phu'ong thCtc, thoi han va dia didm da thoa thuan; 4. GiCt 191 mat cac thong tin vg qui trinh gia cong va sari pham tao ra; 5. Chiu trach nhiem vg chat lacing sAn pham, ngu thyc hien cong viec bang nguyen vat lieu coa minh; 6. Hoan tr6 nguyen vat lieu con lai cho ben dat gia cong sau khi hoar) thanh hop dong. Digt, 555. Quy6n cua b8n nhan gia cong

The processor shall have the following rights:


1. To request the processee to supply

Ban nhan gia cong c6 cac quAn sau day:


1. Yeu cau ben dat gia cong giao

442

materials and/or raw materials in accordance with the agrees quality, quantity, time limit and place; To reject any unreasonable 2. instruction by the processee if the processor knows that such instruction may reduce the product quality, but must immediately notify the processee thereof; 3. To request the processee to pay the remuneration in full, on schedule and in the agreed mode of payment. Article 556. Liability for bearing risks The owner of the materials and/or raw materials shall bear all risks for his/her Materials and/or raw materials and/or the products made thereof until the products are delivered to the processee, unless otherwise agreed. If the processee delays in receiving the products, he/she shall bear the risks during such day delay, even if such products are made from the processor's materials and/or raw materials, unless otherwise agreed. If the processor delays delivering the products thus causing risks for the processed property, he/she must compensate for damage to the processee. Article 557. Hand over and receipt of the processed products. The processor shall have to hand over the processed products and the processee shall have to receive them at the agreed time and place. Article 558. Delay in delivery and receipt of processed products. 1. In cases where the processor delays in delivering the processed products, the processee may extend the time limit; past this time limit and the

nguyen vat li8u dung chat lu'ong, s6 lu'ong, thdi han va dia didm da thoa thuan; 2. Tit chOi sit chi dan khong hop ben dat gia cong, n8u thay chi dan do co thd lam giam chat lu'ong s5n phdm, nhu'ng phai bao ngay cho ben dat gia cong; 3. Yeu cau ben dat gia cong tr5 du tin cong theo dung thdi han va phu'ong thCic da tho5 thuan; Digu 556. Trach nhi8m chiu rOi ro Cho d8n khi giao san phdm cho ben dat gia cong, ngu'di nao la chi) set hCtu cue nguyen vat lieu, thi phi chin rUi ro d6i vdi nguyen vat lieu hoac sAn phdm dude tao ra tit nguyen vat liOu do, trit tru'ong hop c thoa thuan khac. Khi b8n dat gia cong cham nhan sAn pham, thi phi chiu rUi ro trong thai gian cham nhan, ka c5 trong tru'ong hop sAn pham du'oc tao ra tif nguyen vat li8u dia ben nhan gia ding, tilt trtiong hop c thoa thuan khac. Khi ben nhan gia cong cham giao s5n pham ma co rui ro doi vdi tai s5n gia cong, thi phi boi thitong thi8t hai x5y ra cho ben dat gia cong. Di6u 557. Giao, nhan s5n pham gia cong. Ben nhan gia cong phi giao sAn pham va ben dat gia cong phi nhan sAn pham theo dung thdi han va tai dia diam da tho5 thuan. Di6u 558. Cham giao, cham nhan sa'n pham gia cong. 1. Trong taking hop ben nhan gia cong cham giao s5n pham, thi ben dat gia cong c6 the' gia han; neu hat thdi han do ma ben nhan gia cong van chu'a hoan 443

processor still has not accomplished the work, the processee shall be entitled to unilaterally suspend the contract and demand compensation for damage. 2. In cases where the processee delays in receiving the processed products, the processor may entrust such products to a place of bailment and must immediately notify the processee thereof. The obligation for product delivery is fulfilled once all the agreed conditions have been met and the processee has been notified thereof. The processee shall bear all the expenses arising from the bailment. Article 559. Unilateral suspension of a processing contract 1. Either party shall be entitled to unilaterally suspend the performance of the processing contract if such continued performance shall not benefit him/her, unless otherwise agreed or provided for by law, but he/she must notify the other party thereof in advance within a reasonable period of time; if the processee unilaterally suspends the performance of the contract he/she shall pay a remuneration corresponding to the amount of work done; if the processor unilaterally suspends the performance of the contract, he/she shall not be entitled to any remuneration, unless otherwise agreed. 2. Any party who unilaterally suspends the performance of the contract thus causing damage to the other party must compensate. Article 560. Payment of remuneration 1. The processee must pay the remuneration at the time of receipt of the processed products, unless otherwise agreed. 2. In cases where there is no agreement

thanh cong vigc, thi ben dat gia cong c6 quy8n don phaong dinh chi thcrc hiOn hop dung va yeu ceu b6i thuting thigt hai. 2. Trong trYdng hop ben dat gia cong cham nhan san phem, thi b8n nhan gia cong c6 the gill san phem do tai ndi gill gill va phai bao ngay cho ben dat gia cong, Nghia vu giao san phem hoan thanh khi dap Ung dtioc cac digu kign da thoa thuan va bgn dat gia cong da du'oc th6ng bao. Ben dat gia cong phai chiu moi chi phi phat sinh tii vigc gi.ti

Di"gu 559. Don phu'ong dinh chi thyt hign hop d6ng gia ding.

1. meii ben deu c6 quy6n don phu'ong dinh chi thu'c hign hop deing gia cong, n6u vi6c tip tuc thitc hign hop d6ng kh6ng mang lai loi ich cho minh, tit tradng hop c6 thoa thuan khac hoac phap luat c6 qui dinh khac, nhu'ng phai bao cho ben kia bigt tru'dc mot thdi gian hop lir; n6u ben dat gia cong don phudng dinh chi thyt hign hop Tong, thi phai tr .6 tin cong tu'ong ang viii cong vigc de lam, n'eu ben nhan gia cong don phu'ong dinh chi thu'c hign hop d6ng thi kh6ng cludc trA tin cong, tit tru'ong hop c6 thoa thuan khac.

2. Ben don phu'dng dinh chi thiic hiOn hop (long ma gay thigt hai cho ben kia, thi phai b & thu'ong. . Di6%.1 560. Tra tin cong 1. Ben dat gia cong phai tra dO tin cong vao thdi diem nhan san phem, n6u kh6ng co thoa thuan khac. 2. Trong tru'ang hop kh6ng c6 thoa

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on the remuneration rate, the average rate for making products of the same type at the place of processing and at the time of payment shall apply. 3. The processee shall not be entitled to reduce the remuneration, if the product does not meet the agree quality due to the materials and/or raw materials supplied by him/self or because of his/her irrational instructions.

thuan v6 mac tin cong, thi ap dung mac tin cong trung binh viec tao ra san phgm ding loai tai dia cligm gia cong va vao thi i digm trA ti6n. 3. B8n dat gia cong khOng c6 quy6n gi6m tin cong, n6u sAn pham khong bac) da m chgt lu'ong do nguyen vat lieu ma minh de cung cap hoac do sit chi dan kh6ng hop ly dia minh.

Article 561.

Disposal of materials and/or raw materials.

Digu 561. Thanh ly nguyen vat lieu

raw materials to the processee, unless Khi hop ciong gia cong cham Mt, ben otherwise agreed. nhan gia cong phai hoan tr-6 nguyen vat lieu con lai cho ben dat gia cong, fru' truting hop c6 thoa thuan khac.

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Reader's note

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HOP HONG THUONG MAI QUOC Tg

International Trade Contracts

Chiu trach nhiem xugt bin Published by


PHAN DAO NGUYEN

Bien tap va sita bin in Edited and Corrected by


THU HANG PHONG KE HOACH - IN AN

Trinh bay Designed by


HOASACH JSC

In 1.000 bin, kh6 16 x 24 cm tai C6ng ty c6 phgn In Cgu Gigy, Ha N6i Gigy phep xugt bin s6: 70 - 2007/CXB/11 - 05/LE) cap ngay 22/01/2007 In xong va n6p Itfu chigu quy III nam 2007.

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