AGREEMENT OF BOT PROJECT (2)
12. Service Charge and Income Distribution
12.1 In order to accomplish the purposes specified in Clauses 4.2.4), 4.2.5), 6.3.4) and 11.1, B shall undertake responsibility for the negotiation with ________Government and the conclusion of service agreement. B shall provide such information and data as useful and necessary for the negotiation and appoint a person to cooperate with the representatives from C or New Company and the People's Insurance Company of China in charge of the negotiation.
The persons in charge shall do their duty according to the procedures as below:
1) to submit basic concept and overall plan of the Project within _______days from the date of singing this Agreement;
2) to start detailed technical negotiation and discussion on the rate of service charge within _________days from the date of signing this Agreement;
3) to conclude relevant matters and enter into service agreement within _______months from the date of signing this Agreement. $ m O7 B$ n+ l:
C or New Company shall fully assist and support B and provide all technical data, information and materials, etc. necessary for the negotiation. In case that the parties send a delegation to negotiate with a service purchaser, they should appoint the person or persons who are competent for the delegation at all points in experience and specialty.
12.2 B and C or New Company agree as a negotiation point that payment for _________export shall be received on monthly basis and directly to New Company's bank account in_________ denominated by New Company in US Dollars without any withholding taxes or fees.
12.3 Income from sales of _______shall be distributed by C, the leading company of New Company, in the following order of priority:
1) Royalty to B stipulated in Clause 12.4;
2) Operation and maintenance cost;
3) Loan principal and interest to construct the infrastructure project;
4) Dividend to the members of New Company.
The parties agree and acknowledge to cause New Company not to make any deduction of depreciation or establishment of any reserves and to ensure payment of principal and interest to construct the infrastructure project after the payment of the items specified in Clauses I) and 2).
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The People's Insurance Company of China will act as the undertaker of the export credit insurance and treasurer of the New Company during the repayment period to ensure the reimbursement of the loan principal and interest.
12.4 The amount of income to be distributed to B and the members of New Company shall be calculated by using as reference the Basic Case-Annex 1.
The proportion of the amount payable to B as royalty shall be as below and readjusted based on the service agreement and the Project Cost:
___________percent during the first __________years of the Operation Period:
____________percent during the remaining years of the Operation Period.
The above mentioned royalty to B covers, but not limited to, B's provision of C or New Company's free use of the Site, technical assistance, administrative arrangement and support and other assistance and support specified in this Agreement.
12.5 In case that main equipment should be replaced, the members of New Company shall agree to increase their investment amount in the proportion of their share to New Company for the procurement and installation of that replacing equipment. Cost for replacement parts and equipment of which durable year, determined by the internationally accepted accounting principle, exceeds Transfer Date, shall be shared between B and New Company in proportion of the years beyond Transfer Date and the years falling within Transfer Date.
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13. Transfer of Ownership
13.1 Before the establishment of New Company, C and B shall be the proprietary owners of the infrastructure project or any part thereof during the construction period and/or the Operation Period and shall possess and exercise all rights, privileges, titles to and interests in the infrastructure project. Such ownership shall be shared by the members of New Company until the Transfer Date in proportion of the percentage of their share of equity when New Company is established.
B acknowledges such ownership and guarantees that such ownership shall be respected and protected by B under the laws of ___________and B shall make resolutions, issue orders or execute any action which is required to protect such ownership. B guarantees that under any circumstance or for any cause, the ownership of the infrastructure project and other assets of C or New Company, during construction or after Completion Date, shall not be condemned, confiscated, nationalized or restricted by B unless C or New Company abandons the Project. Z# Q7 j9 Y& ^4 ^
Abandonment in this Clause means that i) C or New Company notifies B of their definite intent to neglect the infrastructure project and ii) C or New Company's neglect of the infrastructure project lasts more than _____________months without cause.
During the construction period and/or operation period, C or New Company shall at its own discretion and necessity cause a lien or encumbrance to be created on the infrastructure project and other facilities forming the Project, and B shall not raise any objection thereto.
13.2 On the Transfer Date New Company shall transfer to B, free from any lien or encumbrance created by New Company and without the payment of any compensation, all its right, title to and interest in the infrastructure project, unless otherwise specified in the Agreement or any supplementary agreement.
13.3 __________year prior to the Transfer Date, B and New Company shall discuss the necessary procedure for the transfer of the infrastructure project and ______months prior to the Transfer Date, B and New Company shall meet and agree the inventories involved and the mechanics of transfer. 外贸.族
13.4 The infrastructure project and all other equipment transferred pursuant to Clause 13 shall be transferred on an "as is" basis and after the Transfer Date New Company shall be under no liability whatsoever to B in respect of the operation of the infrastructure project by B or a person designated by B.
13.5 B shall be responsible for all costs and expenses ( including legal fees and taxes or duties) incurred in connection with the transfer referred in Clause 13 and shall at its own cost obtain or effect all governmental and other approvals, licenses, registrations and filings and take such other actions as may be necessary for the transfer contemplated in Clause 13, and reimburse New Company on demand for all such costs and expenses incurred by New Company in respect of such transfer.
14. Liability
14.1 C or New Company shall be under no responsibility or liability to compensate any damages except direct damages incurred due to material breach of its obligations under this Agreement.
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14.2 In circumstance provided above in Clause 14.1 C or New Company shall, at its sole option and discretion, be entitled to transfer to B all or part of C or New Company's proprietary rights and ownership of the infrastructure project, under construction or after Completion Date, as liquidated damages, in lieu of computing and compensating the actual damages provided that such transfer shall be conducted of C's own free will or rendered in the arbitration award as stipulated in clause 23. However, any transfer shall be subject to the confirmation and approval of the People's Insurance Company of China and the lending bank.
In above case, C or New Company's liability to B shall be limited to transfer of the proprietary right and ownership of the infrastructure project and B's claim against C or New Company demanding the damages shall be extinguished and nullified.
15. Documents and Patents
15.1 Nothing contained in this Agreement shall be construed as transferring any patent or copyright in equipment covered by the Agreement and all such rights are hereby expressly reserved to the true and lawful owners thereof. C or New Company shall retain all rights with respect to the specifications, plans, drawings and other documents and B undertakes not to disclose the same or divulge any information contained therein to any third country without the prior written consent of C or New Company. WAIMAOZU.COM
15.2 All commercial and technical documents such as agreements and proposals pertinent to the Project shall be kept confidential. B undertakes not to disclose the same or divulge any information contained therein to any third country or party without prior written consent of C or New Company.
16. Force Majeure
16.1 No failure or omission to carry out or observe any or the terms, provisions or conditions of this Agreement shall be deemed to be breach of this Agreement if the same is caused by or arises out of Acts of God or any conditions of similar nature beyond reasonable control of C or New Company, including, but not limited to, the following:
a. war, hostilities (whether war be declared or not), invasion, act of foreign enemies;
b. rebellion, revolution, insurrection, or military or usurped power, or civil war;
c. ionizing radiation, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
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d. pressure waves caused by aircraft or other aerial devices traveling at sonic or supersonic speeds;
e. riot, commotion, disorder, strike, sabotage, lockout or any other industrial action by employees affecting C or New Company or their subcontractors;
f. export or import restrictions by any governmental authorities, closing of harbours, docks, canals;
g. fire, unusual flood, earthquake, mud avalanche, collapse, landslide, storm, lightning or any other unreasonably severe weather;
h. accidents of navigation or breakdown or injury of vessels;
i. epidemic, quarantine;
j. shortage of raw materials, unforeseen shut-down of major sources of supply;
k. unreasonable delay of more than _________days in unloading ships and clearing systems;
l. concealed conditions encountered below the surface of the Site.
16.2 Notwithstanding Clause 16.1, B shall not be entitled to claim for itself in respect of any Force Majeure in Clause 16.1.
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16.3 The party invoking Force Majeure shall:
a. notify the other parties as soon as possible in writing the nature of the Force Majeure and the extent to which the Force Majeure suspends the affected party's obligations under this Agreement; and
b. resume performance of its obligations as soon as possible after the Force Majeure condition no longer exists.
16.4 If the Force Majeure applies prior to the Completion Date, the parties will meet to discuss a revised timetable for the completion of the Project.
16.5 If the Force Majeure applies during the Operation Period, the Operation Period shall be extended by a period equal to that during which the effect of the Force Majeure applies.
16.6 Notwithstanding Clauses 16.4 and 16.5, if the Force Majeure lasts for a period in excess of ____________days, the parties hereto will meet to discuss the basis and terms upon which this Agreement can be continued and if the parties conclude that this Agreement cannot be continued, then the parties shall discuss the solution to reduce their loss.
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16.7 The parties hereto will consult with each other and take all reasonable steps to minimize the losses of either party resulting from the Force Majeure.
16.8 If any event of the Force Majeure occurs which causes damage to the Project or the infrastructure project, then C or New Company shall not be obliged to reinstate the same, or, as the case may be, complete the same, until the parties hereto have agreed upon the terms for such reinstatement or completion.
17. Insurance
C or New Company shall take out insurance required for the construction or operation of the infrastructure project.
18. Change in Circumstances
In the event that as a result of any laws or regulations of ___________or any agency or other body under the control of the Government of ____________or any regional or municipal authority thereof, coming into effect after the date hereof or as a result of any such laws or regulations (including any official interpretation thereof C has relied upon in entering into this Agreement) in force at the date hereof being amended, modified or repealed, the interest of C in the Site, the Project or the infrastructure project and/or C's economic return on its investment is materially reduced, prejudiced or otherwise adversely affected (including, without limitation, any restriction on the ability to remit funds in US Dollars outside of_____________) then the parties hereto shall meet and endeavour to agree amendments to this Agreement. 外贸族
19. Notices
Any notice to be given under this Agreement shall be in writing and shall be delivered personally or sent by registered mail, telex or facsimile transmission to the following:
To B:_______________.
Address: _________________.
Telephone: __________________.
Facsimile: ________________.
To C:_____________.
Address: __________.
Telephone: ___________.
Facsimile: _________.
Any party may change such address or attention by not less than _______days' notice to the other party in accordance herewith and such change shall take effect on receipt of such notice by the other party.
20. Dispute Resolution
20.1 Throughout the term of this Agreement representatives of the parties shall meet regularly at not less than semi-yearly intervals to discuss the progress of the Project and the operation of the infrastructure project in order to ensure that the arrangement between the parties hereto proceeds on a mutually satisfactory basis. SOHO外贸族l( V5 i. d9
The operation of the infrastructure project in order to ensure that the arrangement between the parties hereto proceeds on a mutually satisfactory basis.
20.2 The parties hereto agree that in the event that there is any dispute or difference between them arising out of this Agreement or in the interpretation of any of the provisions hereof they shall endeavour to meet in an effort to resolve such dispute by discussion between them but failing such resolution the representatives of parties shall meet to resolve such dispute or difference and the joint decision by them shall be binding upon the parties hereto and in the event that a settlement of any such dispute or difference is not reached pursuant to this Clause then provisions of Clause 23 shall apply.
20.3 In the event any dispute should arise between the parties as to any technical matter in regard to the construction or operation of the infrastructure project, design and production standards shall be provided and the case shall forthwith be referred to the expert chosen by agreement of both parties. Subject to arbitration, as hereinafter provided, such decision shall be final and binding upon the parties.
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if the expert fails to render his decision within such_________ days or if either of the parties is dissatisfied with any such decision, the party may, within ______days after the expiration of the first-named period of _______days or after receiving notice of such decision, as the case may be, refer the dispute to arbitration as provided in Clause 23.
21. Waiver of Sovereign Immunity
B represents and warrants that this Agreement is the commercial rather than public or governmental act and that B waives its right to claim immunity from legal proceedings with respect to itself or any of its assets on the ground of sovereignty or otherwise under any law or in any jurisdiction whether an action may be brought for the enforcement of any of the obligations arising under this Agreement.
22. Law and Language
This Agreement shall be governed by and construed in accordance with the laws of ____________except technical specifications. This Agreement has six (6) originals in ____________language and each party holds three (3).
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23. Arbitration
All disputes, controversies, or differences which may arise between the parties, out of or in relation to or in connection with this Agreement, or for the breach thereof shall be settled through amicable consultation. If three occasions of consultation fail to settle, the Agreement on Mutual Encouragement and Protection of Investment between the Government of the People's Republic of China and the Government of ______________________shall apply. In case the issue remains to be settled, it shall be finally settled by arbitration pursuant to the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by three (3) arbitrators designated in accordance with the said Rules.
Arbitration shall be held in ______________and shall use the ____________language.
The award rendered by arbitrators shall be final and binding upon the parties concerned.
In witness whereof, the parties hereto have caused their respective duly authorized representatives to execute the Agreement on the ______day of _______in the year of ________. For and on behalf of the B For and on behalf of the C Annex (sketch) B8 \3 q, Y1 b7 c5 K- \
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