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旧设备买卖协议书
旧设备买卖协议书
第四董事会会议公司在十八9月14日,2016年会议的考虑并批准签署和执行公司与上海石化机械制造有限公司,起重设备采购协议。刘enlng协会理事,张宝锦投票审议并被避免。
公司与上海石化机械制造有限公司,于日,在上海,签署了一份购买协议起重设备。根据起重设备采购协议,公司将收购上海石化机械有限公司、起重设备。到日为基础的日期、起重设备已被评估资产的评估价值29,112,000元,现标价2880亿元。
除非本协议另有规定,在这个公告(包括特别提示和重要的秘诀),下列条款的含义如下:
公司是指中国石化上海石油化工有限公司
中国石化集团公司是指中国石油化工集团公司
中国石化中国石油化工集团公司
起重设备是指那些在上海石化机械制造有限公司,将收购起重机DeagT1800S
起重设备采购协议指本公司和上海石化机械制造有限公司,于日,该公司同意上海石化机械有限公司、起重设备采购协议
购买是指购货协议起重机下的设备2880亿元人民币,上海石化机械制造有限公司,购买起重设备
时间指在资产评估的目的的评估purhase-riented明投资有限公司,上海日,日发布日期的评估为基础来评估范围的起重设备为上海评级报纸明16]没有。要慎重, 单项资产评估报告
连接人已经在上海证券交易所上市规则的定义与上市规则的意义
控股股东已上市规则的定义与上市规则的意义
董事公司的主任,包括独立非执行董事
上海证券交易所的上市规则是指上海证券交易所的上市规则
上市规则是指上市公司证券在证券交易所规则
中华人民共和国是指中华人民共和国旧设备买卖协议书
人民币是指合法的货币人民币大幅升值,中国
东南偏南是指那些在上海证券交易所上市
证券交易所的香港联合交易所
2。关系人交易之概述
第四董事会会议公司在十八9月14日,2016年会议的考虑并批准签署和执行公司与上海石化机械制造有限公司,起重设备采购协议。刘enlng协会理事,张宝锦投票审议并被避免。独立董事姑川训练,王建民,王建民YngshuXing-Yu,陈Hsin-yuan关系人交易的独立意见表达的关联交易达成协议。
公司与上海石化机械制造有限公司,于日,在上海,签署了一份购买协议起重设备。根据起重设备采购协议,公司将收购上海石化机械有限公司、起重设备。到日为基础的日期、起重设备已被评估资产的评估价值29,112,000元,现标价2880亿元。
中国石化集团、部门公司的实际控制人。上海石化机械制造有限公司、中国石化集团的全资子公司。根据上海证券交易所的上市规则,上海石化机械制造有限公司,是公司的员工,该收购交易构成了一个连接上海证券交易所的上市规则。
董事会(包括独立董事)的关联交易,依照公平协商的原则,由此而形成的正常的商业条款,符合公司的利益和股东的,在nn-assiated股东是公平合理的。
3。关系有关的社交聚会,
中国石化集团公司3。1%。
一)的基本情况,对中国石化集团公司
公司名称:中国石油化工集团公司
法定地址:北京市朝阳区,中国,6回族鑫东大街
公有制业务类型:
法定代表人:小陈海
1,049万人民币,注册资本:旧设备买卖协议书(约港币98。962亿元人民币)
中国石化集团公司b)的历史
中国石化集团公司是基于第一会议第九届全国人民代表大会通过了国务院的改革计划和国务院设立了中国石油和化工公司批准的问题, 中国石油和化学工业公司在原来的基础上,1998年7月组建大型石油石化企业集团,是国家授权投资的机构和国有控股公司。中国石化集团公司于00年,主要经营通过重组、石油和石化投资的中国石油化工股份有限公司。
3。2上海石化机械制造有限公司。
(一)机械制造有限公司。基本信息上海石化公司名称:上海石化机械制造有限公司。
法定地址:上海金山石化91号顺便说一句
公司类型:有限责任公司(国有)
法定代表人:太阳镕根
成立日期:1997年12月日
运行期:永久生存
13,026万注册资本:
主要经营:各种专用设备的石油化工、化纤等非标设备、各种机械式阀门、电器、仪器仪表、工具、机械密封、木工装模具铸造、锻造、电镀、热处理、机械工程、交通运输、施工安装和维护
(B)上海石化机械制造有限公司。历史
上海石化机械制造有限公司。中国石化集团公司投资建立国有企业。成立于1974年,原名上海石化工厂Jixiu昌;1993年,更名为上海石化机械制造有限公司,1997年,注册为法定的个性,上海石化机械总厂;00年3月更名为其现有的名字。
()上海石化机械制造有限公司的财务状况
根据中国的会计标准,于日,上海石化机械制造有限公司。审核的净利润为-499。830,000万元,净资产的63,942,0元。
中国石化集团,部门的公司的实际控制人,于日,中国石化集团公司控股股东中国石化集团持有55。%股权的地位。上海石化机械制造有限公司、中国石化集团的全资子公司。根据上海证券交易所的上市规则,上海石化机械制造有限公司,是公司的员工,该收购交易构成了一个连接上海证券交易所的上市规则旧设备买卖协议书。
公司、上海石化机械制造有限公司之间的关系,证明:
4。这个主题的基本情况的关联交易
主题的关联交易的起重设备,属于固定资产。起重机设备、上海石化机械制造有限公司,持有上海市公安车辆管理发布了一个《机动车执照。根据《机动车执照, 主人的起重机为上海石化机械制造有限公司,模型的总质量DeagT1800S8万公斤的起重能力,车牌号码4吨,为上海A/F00。
依据资产评估报告、起重设备来评估重置成本法,以利用日为基础的日期、起重设备、评估的账面价值。970,000元人民币2,1的账面价值,调整人民币2亿元人民币,4。0197人民币2,911的评估价值评估。00万的价值5。0923亿元,。%增值率。评估增值生产的主要原因是,价格上涨的钢吊车、起重设备、实际维修条件不符合预期的采集成本和其他因素导致了两因素进入一个新的变化速率之间的相互作用的结果。
经过仔细的检查、起重设备不是一个安全、抵押、质押、和其他限制转让的情况下,也没有任何诉讼、仲裁或司法执法,和其他重大问题在争议中。
5。主要内容关系人交易之和定价政策
根据起重设备采购协议,公司2880亿元人民币,上海石化机械制造有限公司,购买起重设备。石油化工机械制造有限公司,在上海起重设备采购协议的签署发票全部发行后15日内,该公司支付银行转帐支付人民币2600万美元,公司的价格为剩下的起重设备转让后10天内完成支付给上海石化机械制造有限公司。
负责公司起重机设备、过户1
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浏览：60次设备买卖协议（中英文）
EQUIPMENT PURCHASE AND
SALE AGREEMENT
DATED THIS
[DAY] DAY OF [MONTH], [YEAR]
a company organized under the
laws of [Country] (“Buyer”)
company organized under the laws of Switzerland
(“Seller”)
&each a “Party”,
collectively the “Parties”
DEFINITIONS&&&&&
SCOPE OF AGREEMENT&&&
PRICING AND PAYMENT&&
SHIPMENT; ACCEPTANCE& &&&
SECURITY INTEREST. &&&
FINAL ACCEPTANCE. &&&
WARRANTY&&&&
FORCE MAJEURE &&&
LIMITATION OF LIABILITY&&&&&
LICENSES&&&&
PATENT INDEMNITY& &&&
12.&& TERM
AND TERMINATION&&&&&&
CONFIDENTIALITY&&&
EXPORT REGULATIONS&&&&
MISCELLANEOUS&&&&&&
DESCRIPTION AND SPECIFICATION& &
2& BUYER’S
SITE AND ESTIMATED SHIPMENT SCHEDULE&&&&&&
3& SELLER’S
WIRE TRANSFER INSTRUCTIONS&&
4& FORM OF
LETTER OF CREDIT&&&
DEFINITIONS.
addition to those definitions set forth elsewhere in this Contract,
the following capitalized terms shall have the meanings specified
Buyer’s Site” means the
location where the System will be installed and used as set forth
in Annex 2;
Contract” means this
Equipment Purchase and Sale Agreement, including its
Effective Date” means
Final Acceptance” has
the meaning set out in Section 6
Final Acceptance Test”
means one or more tests of the System conducted in accordance with
Seller’s normal procedures at Buyer’s Site to demonstrate that the
System meets or exceeds the S
Intellectual Property”
means algorithms, concepts, data, databases, designs,
documentation, drawings, formulae, hardware, know-how, ideas,
inventions, materials, methods, plans, procedures, processes,
schematics, software (in any form including source code and
executable or object code), specifications, techniques, tools,
trade secrets, works of authorship, and other technical
information, whether or not protectable by any form of Intellectual
Property R
Intellectual Property
Rights” means all present and future patent rights, copyrights,
trade secrets, database rights, and other proprietary rights
(excluding trademarks, service marks, trade names, and similar
rights) in any jurisdiction, and all applications and registrations
Services” means certain
installation and commissioning services related to the
Shipment” of a System
occurs when such System is delivered to the carrier at Seller's
factory or the shipping point determined by S
Specification” means
the technical description and performance specification of a given
System set forth in Annex 1; and
System” means the
equipment described in Annex 1.
SCOPE OF AGREEMENT.
&Buyer agrees to
purchase the System and Services, and Seller agrees to sell the
System and perform the Services, subject to the terms and
conditions of this Contract.
PRICING AND PAYMENT&&
Price.& The
total price for the System and Services is four million and eighty
thousand Swiss Francs (CHF 4,080,000) (the “Price”).& Buyer shall pay the
Price to Seller as follows:
4,080,000)
thirty percent (30%) of the Price, with payment due thirty (30)
days after the Effective Date (“First Installment”);
sixty percent (60%) of the Price upon Shipment to Buyer of the
System, with payment due thirty (30) days after the date of
percent (10%) of the Price within ten (10) days of Final
Acceptance, but not later than ninety (90) days after Shipment of
the System provided that the installation and commissioning of the
System at Buyer’s Site is delayed by reasons not caused by Seller,
with payment due fourteen (14) days after the& date of Seller’s
(10)(90)(10%)(14)
Taxes and Fees.& The Price shall not
include any import or broker’s fees, taxes (including withholding
taxes, import VAT, customs duties, and official local charges) or
any other taxes levied on Seller (except those which are based on
income of Seller) , or any other charges or costs that might be
claimed with respect to the sale or shipment or installation of the
System or any spare part(s) to Buyer, all of which shall be paid by
Buyer (or reimbursed to Seller by Buyer if Seller makes
Unless otherwise set forth in this Contract, Buyer shall make all
payments under this Contract exclusively to Seller within fourteen
(14) days after the date of Seller’s invoice therefor.& Unless another
address is provided in writing by Buyer to Seller, all invoices
shall be sent by Seller to the address set forth in Section
15.6.& All
of Buyer’s payments of the Price shall be made by means of the
Letter of Credit (as defined in Section 3.4), except that: (a)
payment of the First Installment will be made by wire transfer to
Seller’ and (b) if the Letter of Credit is not in
effect when a payment is due or is not sufficient to cover the
entire amount owed to Seller, then Buyer will pay the amount owed
(or remaining portion thereof that Seller did not receive by
drawing on the Letter of Credit) to Seller by means of a wire
transfer to Seller’s bank account by the due date set forth
above.& All
payments by wire transfer will be made in accordance with the wire
instructions set forth in Annex 3 which may be revised from
time-to-time upon written notice by Seller to Buyer.& For avoidance of
doubt, Seller may at its option draw on the Letter of Credit at a
date later than the applicable payment due date set forth
Payments will not be considered made until Seller has a credit
entry on its bank accounts in Switzerland.&
(14)15.63.4(a) (b) 3
Letter of Credit.& Buyer shall cause to
be issued to Seller an irrevocable letter of credit (“Letter of
Credit”) in the amount of the Price less the amount of the First
Installment.& Each Letter of Credit
shall be directly advised through a bank acceptable to Seller, to
be issued in favor of Seller no later than sixty (60) days before
the scheduled date of shipment of the System.& The Letter of Credit
shall be subject to the Uniform Customs and Practice for
Documentary Credits 2007 revision I.C.C. publication no. 600.
Unless otherwise specified therein, the Letter of Credit shall be
payable in Switzerland and shall not expire before all payments are
made to Seller.& All banking charges
for the Letter of Credit shall be the responsibility of, and be
paid by, Buyer.& The Letter of Credit
will be in substantially the form attached to this Contract as
Buyer will email or fax a copy of the proposed Letter of Credit to
Seller’s Treasury Department (using the address provided by Seller)
for review and approval by Seller prior to the actual submission to
the opening bank.
(60)20076004
Rights of Set Off.& Other than as
expressly provided in this Contract, neither Party is entitled to
set off amounts claimed to be owed by the other Party against
amounts owing to the other Party whether arising under this
Contract or any other agreements between the Parties.& All payments are
nonrefundable once made.
SHIPMENT; ACCEPTANCE
Shipment Terms.& The System will be
delivered to Buyer CIP Shanghai airport (INCOTERMS 2000) or other
shipping point designated by Seller.& Annex 2 contains an
estimated shipment date for the System.& Buyer will arrange
for and bear the cost of shipping transportation and insurance from
the Shanghai airport to Buyer’s Site.& Transshipment and
partial shipment will be allowed.
Title T Risk of Loss.& Transfer of title to
the System will pass from Seller to Buyer upon delivery of the
System to the first carrier.& Risk of loss or
damage with respect to the System will pass from Seller to Buyer
upon delivery of the System to the first carrier.& In addition, Buyer
will be liable for any loss or damage caused at any time by the
acts or omissions of Buyer or any of Buyer’s agents, employees, or
contractors.& In the event of
damage or loss during shipment and Buyer wishes to make a claim
under the insurance policy procured by Seller, Buyer agrees to
first notify Seller and coordinate any communication on the claim
with Seller. Notwithstanding anything to the contrary, any software
included with the System is licensed, not sold to Buyer, and title
to and ownership of such software shall at all times remain with
2000FCA2000FCA
Performance Conditions.& Buyer acknowledges
that Seller’s ability to deliver, install, and achieve Final
Acceptance of the System depends upon: (a) the condition and
availability of Buyer’s S (b) Buyer’s ongoing satisfaction, in
a timely manner, of its obligations set forth in this Contract and
otherwise ag and (c) none of the warranty
exclusion events described in Section 7.5 occurring.& If a delay in
Seller’s performance occurs due to causes described in clauses (a)
or (b) above, then Seller will be entitled to the Shipment
Postponement Charge defined below.
(c) 7.5(a)(b)
Buyer Postponing or Cancelling Shipment.& Buyer may cancel or
postpone Shipment of the System prior to the scheduled shipment
date by delivering written notice to Seller, subject to Buyer’s
payment to Seller of the applicable cancellation charge (“Order
Cancellation Charge”) or postponement charge (“Shipment
Postponement Charge”).& Buyer agrees and
acknowledges such payments are reasonable and
justified.&
Seller may draw against the Letter of Credit for either or both of
the Order Cancellation Charge and the Shipment Postponement
Order Cancellation Charge:
Notice of Cancellation Prior to Seller’s Scheduled Shipment Date
Cancellation Charge (Percentage of Price)
90 days or
30% 90& 30%
30 days but less than 90 days&&
Shipment Postponement Charge:& At Seller’s option,
Seller may impose the Shipment Postponement Charge equal to thirty
percent (30%) of the applicable Price of the System, which amount
constitutes Seller’s liquidated damages for any and all costs and
expenses incurred by Seller in connection with the postponed
delivery of such System.& If Buyer requests a
delivery delay of more than forty-five (45) days after the
originally scheduled shipment date, at Seller’s option, the order
may be deemed cancelled and Buyer may be subject to both the Order
Cancellation Charge and the Shipment Postponement
Seller Postponing or Cancelling Shipment.& Without limiting any
other rights under this Contract, Seller may postpone and/or cancel
Shipment of a System upon written notice to Buyer if Buyer fails to
pay an amount when due, or if Buyer fails to cause the Letter of
Credit to be issued to Seller when due .& In such
circumstances, and at Seller’s option, Seller may: (i) reschedule
Shipment of the System upon Buyer’s cure of such breach, and Buyer
will be subject to the Shipment Postponement C or (ii) deem
the order to have been cancelled by Buyer as of the date of the
breach, and Buyer will be subject to the applicable Order
Cancellation Charge.
SECURITY INTEREST.& Seller retains, and
Buyer hereby grants, a security interest (or mortgage, charge,
pledge, or lien, as determined by Seller to provide security under
applicable local law) in the System delivered hereunder and in all
proceeds from the sale, exchange, collection, or disposition
thereof, until Buyer has made payment in full for the
Buyer shall, upon request by Seller, provide all information,
cooperation, and signatures required by Seller to perfect such
security interest.& Seller reserves all
rights granted to a secured creditor under applicable local law,
including, at Seller’s option, the right to enter Buyer’s Site and
repossess all or any part of the System upon default by
FINAL ACCEPTANCE.& Final Acceptance is
the final and irrevocable acceptance of the System.& Final Acceptance will
occur upon the earlier to occur of the following: (a) a Final
Acceptance Test that demonstrates that the System meets or exceeds
the S (b) the date that Buyer uses the System in
c or (c) the date ninety (90) days after
Shipment of the& System (the “FAT
Deadline”).& Notwithstanding the
foregoing, if the System does not successfully complete Final
Acceptance Test on or before the FAT Deadline solely due to
Seller’s fault or delay, then, as Buyer’s sole and exclusive
remedy, Seller will, at Seller’s sole expense, continue installing
and commissioning the System until the earlier of: (i)Final
A or (ii) the date that is thirty (30) days after Seller
has rectified its fault or delay, at which date there shall be a
deemed Final Acceptance of the System..& Any failure in the
Final Acceptance Test is to be verified by both Parties, and Seller
shall be allowed sufficient and reasonable time to
Buyer shall have no right to return or reject the
(a) (b)(c) (90)(i)(ii) (30)
Warranty.&
Subject to the terms and conditions of this Contract, Seller
warrants to Buyer that during the Warranty Period, the System and
any spare parts provided by Seller hereunder shall be free from
defects in material and workmanship when used under normal
operating conditions for its intended use.& Seller warrants to
Buyer that all Services provided by Seller at Buyer’s Site shall be
performed in a professional and workmanlike manner (the warranties
for the System, spare parts and Services are referred to as the
“Warranty”).& Neither any statement
in any prospectuses or brochures of Seller or on Seller’s website
nor any oral statement of Seller or Seller’s employees, agents or
contractors are legally binding, and none of the foregoing
constitute a warranty of quality or condition under this
Warranty Period.& The warranty period
shall be as follows: (a) for the System, twelve (12) months after
the date of Final Acceptance, not to exceed fifteen (15) months
after S (b) for spare parts, ninety (90) days after the
date of delivery to Buyer’s S and (c) for Services, ninety (90)
days after the performance of the applicable Services (the
“Warranty Period”).& The Warranty granted
hereunder shall not include parts or materials which Seller
considers as consumables under normal operating
conditions.
(12)(15)(b) (90)(c) (90)
Remedy.& If
the System or a spare part delivered hereunder does not meet the
above Warranty, Buyer shall promptly notify Seller in writing and
make the System or part available for correction.& Seller shall, during
its normal business hours, correct any reproducible failure of the
System or part to meet the above Warranty, at its option by either
repairing or replacing any defective part or, if such remedies
fail, by replacing the System. Buyer must grant Seller reasonable
time and opportunity to take what Seller determines to be the
necessary steps for making repairs or su if
Buyer refuses to grant such time or opportunity, Seller will be
released from any and all obligations with respect to such defects
or failures.& If a Service provided
hereunder does not meet the above Warranty, Buyer shall promptly
notify Seller, and make the System available for correction, and
Seller shall, during its normal business hours, correct any defect
by reperforming the Service.& This Section 7.3 sets
forth Buyer’s sole and exclusive remedy for Seller’s furnishing
nonconforming or defective equipment, components, or
Replacement of Non-Conforming Items.& Buyer shall permit
Seller to take possession of the System, component or spare part
that fails to meet the above Warranty (“Non-Conforming Item”).
Buyer agrees to follow Seller’s return material authorization
process and complete any applicable forms. Seller will bear the
cost for the return of the Non-Conforming Items well as the
reasonable cost for dismantling and assembly of the Non-Conforming
Item. If a replacement for the Non-Conforming Item is supplied, the
Non-Conforming Item becomes Seller’s property.& Seller will not be
liable to Buyer, nor will Buyer have any claim against Seller for
any damages, costs, or expenses, suffered by Buyer if the repair of
defects in the System or the provision of replacement equipment,
components or spare parts is delayed or obstructed in any way as a
result of export or import limitations.& Buyer will make
available all the necessary documents to enable the Non-Conforming
Item to be re-exported to their place of origin (as designated by
Seller) and to obtain any permit to import the replacement for the
Non-Conforming Item free of import duty.
Warranty Exclusions.& Seller will not have
any repair or replacement obligations under this Contract for
preventive maintenance or for faults, damage, or other consequences
arising from normal wear-and-tear, or if the System is rendered
defective, in whole or in part, by external causes, including
catastrophes, power failures, transients, over-voltage on
interfaces, environmental extremes, or improper use, maintenance,
or application by Buyer or by any third party. Seller will not be
responsible for (and Buyer will be solely responsible for) damages
to the System if the System is subjected to, or any claimed defect
that arises as a result of, any accident, misuse, neglect,
alteration, failure to install or remove safety devices provided or
required by Seller, unauthorized relocation, or improper repair or
maintenance, or installation, or use contrary to Seller’s printed
warnings, instructions, or recommendations.
Disclaimer and Limitation.&&&
Seller’s liability arising from the sale or use of the System or
Service provided under this Contract will be limited to the cost of
correcting defects as provided in Section 7.3 (or, in the case of
Services, the cost of reperforming such Services), or the portion
of the Price attributable to the applicable System, component,
spare part or Service that gives rise to the claim, whichever is
Seller’s liability under this Section 7 will be subject to, and
count toward satisfaction of the limits in, Section 9.& No warranty claims
may be made, and Seller shall have no liability to Buyer
whatsoever, for any defects or latent defects in the System,
components, spare parts or Services after the expiration of the
Warranty Period.&&&
TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE WARRANTIES SET FORTH IN
THIS SECTION 7 ARE EXCLUSIVE OF ALL OTHER WARRANTIES REGARDING THE
SYSTEM, COMPONENTS, SPARE PARTS OR& SERVICES, OR ANY
OTHER MATERIALS SUPPLIED BY SELLER HEREUNDER, WHETHER WRITTEN,
ORAL, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A
PARTICULAR PURPOSE OR THAT WOULD ARISE FROM COURSE OF DEALING OR
PERFORMANCE.& BUYER ACKNOWLEDGES
THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS
WARRANTIES IN SECTION 7.1 AND THAT NO WARRANTIES ARE MADE BY ANY OF
SELLER’S SUPPLIERS.&
FORCE MAJEURE
“Force Majeure” means an event or circumstance which is beyond a
Party’s reasonable control and includes, but is not limited to,
events or circumstances of the kind listed below: war, hostilities,
invasion, sabotage, terrorism, insurrection, riots, or any other
acts o act or demand of any person exercising
governmental authority, strike, boycott, or other
concerted acts of workers, lockouts, or other industrial
disturbances whethe natural catastrophes such
as, epidemics, fire, explosion, flood, storm, earthquake,
hurricane, typhoon, volcanic activity, or other act of God or
rules and regulations with regard to transportation
by common carrier .
Notice.& If
Buyer or Seller is or will be prevented from performing any of its
obligations under this Contract by reason of Force Majeure, then it
shall give notice to the other Party of the event or circumstances
constituting the Force Majeure.
Suspension of Obligations.& If an event of Force
Majeure occurs, the dates and periods for performance of the
obligations under this Contract shall be adjusted by mutual
agreement of the Parties hereto, or if the Parties fail to agree,
shall be extended by a period equal to the duration of such event
of Force Majeure plus a reasonable time to restart performance of
such obligations.& Notwithstanding any
of the foregoing, Force Majeure shall not apply to obligations of
either Party to make payments under this Contract.
The Parties hereto shall be released from any obligation to pay
damages, including damages for delays in performance of their
obligations, caused by any occurrence of a Force Majeure
LIMITATION OF LIABILITY
Amount of Damages.& TO THE MAXIMUM EXTENT
ALLOWED BY APPLICABLE LAW, SELLER’S LIABILITY ON ANY CLAIM OF ANY
KIND, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR OTHERWISE FOR ANY EXPENSE, INJURY, LOSS,
LIABILITY, OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE
SYSTEM, ANY COMPONENT OR SPARE PART THEREOF FURNISHED UNDER THIS
CONTRACT, ANY SOFTWARE FURNISHED UNDER THIS CONTRACT, OR THE
PROVISION OF ANY SERVICE INCLUDING& THE DESIGN,
MANUFACTURE, SALE, DELIVERY, INSPECTION, REPAIR, MAINTENANCE, OR
INSTALLATION OF THE SYSTEM, EQUIPMENT, COMPONENTS, OR SPARE PARTS
FURNISHED UNDER THIS CONTRACT, SHALL IN NO CASE EXCEED THE PORTION
OF THE PRICE ATTRIBUTABLE TO THE APPLICABLE SYSTEM, COMPONENT,
SPARE PART OR SERVICE WHICH GIVES RISE TO THE CLAIM. WITHOUT
LIMITING THE FOREGOING, SELLER’S MAXIMUM AGGREGATE LIABILITY UNDER
THIS CONTRACT (INCLUDING ANY AMOUNTS SELLER IS OBLIGATED TO PAY
UNDER SECTIONS 7 AND 11, WHICH WILL BE SUBJECT TO AND COUNT AGAINST
THIS LIMITATION OF SELLER’S LIABILITY) FOR ANY AND ALL CLAIMS OF
ANY NATURE (INCLUDING BASED IN CONTRACT, IN TORT (INCLUDING
NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE) SHALL IN NO CASE
EXCEED THE PORTION OF THE PRICE ACTUALLY PAID TO SELLER BY
BUYER.& THE
EXISTENCE OF ANY OTHER LIMITATIONS OF LIABILITY SET FORTH IN THIS
CONTRACT WILL NOT INCREASE THIS OVERALL AGGREGATE LIMIT.
9.2&& Type
of Damages.& IN NO EVENT SHALL
SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, OR CONTINGENT DAMAGES, FRUSTRATED
EXPENSES, OR DAMAGES FOR LOSS OF BARGAIN, LOSS OF EXPECTATION OR
BUSINESS OUTCOME, OR LOSS OF PROFITS, WHETHER OR NOT SELLER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Basis of Bargain.& Regardless of whether
any remedy permitted under this Contract fails of its essential
purpose, the allocation of risk in this Section 9 is material to
this Contract and Buyer acknowledges and agrees that Seller would
not enter into this Contract without the limitations of liability
in this Contract.& Furthermore, Buyer
acknowledges and agrees that: (a) the limitations on Seller’s
liability in this Section 9 will be given full force and effect
even if any exclusive remedy provided in this Contract fails of its
and (b) the existence of more than one claim, or
any other limitation of liability set forth in this Contract, will
not increase the limitation on Seller’s maximum aggregate liability
set forth above.
License to Patented Processes.& Subject to the terms
and conditions of this Contract (including Section 13), Seller
grants to Buyer, as of the delivery date of the System to Buyer’s
Site, a limited, non-assignable, non-transferable, non-exclusive,
royalty free license to use, solely with the System as purchased
from Seller, patented methods and processes of Seller which are
appropriately utilizable (in accordance with applicable
documentation furnished by Seller) in the System.
License to Software.& Subject to the terms
and conditions of this Contract (including Section 13), Seller
grants to Buyer, as of the delivery date of the System to Buyer’s
Site, a limited, non-assignable, non-transferable, non-exclusive,
royalty free license to use internally, solely in object code form,
any software and related documentation furnished by Seller under
this Contract. This grant is limited to use with the System for
which the software and related documentation was provided by
Buyer may make a single archive copy of such software and related
documentation, provided that any copy must contain the same
copyright notice and proprietary markings as the original software
and documentation. Use of software on any equipment other than the
System for which it was provided, any other material breach of this
Contract, or any breach of copyright law with regard to Buyer’s use
of the software or related documentation shall automatically
terminate this license. Terms of any agreement packaged with
third-party software by the software vendor shall prevail over this
Contract, and the license granted in this Section will not apply to
any such software.
13(1)(i) (ii) (iii)
Unauthorized Use.& The licenses granted
in Sections 10.1 and 10.2 do not extend to the use of the licensed
intellectual property on or with items of equipment or parts not
purchased from or supplied by Seller, or modified by any third
party, and any and all such use of such intellectual property is
expressly not authorized.& In the event of such
unauthorized use, in addition to any other rights and remedies
available to Seller, Seller’s warranty obligations hereunder shall
cease in their entirety.
Restrictions.& Except as set forth
in the preceding Sections 10.1 and 10.2, the sale, lease, or other
transfer of the System by Seller to Buyer does not convey any
license or right, by implication, estoppel, or otherwise, to any
method or process invention of any patent.& Except to the extent
enforcement is prohibited by applicable law, Buyer shall not
modify, decompile, disassemble, decrypt, extract, or otherwise
reverse engineer any software licensed hereunder, and Buyer shall
not reverse engineer any element of the System.& Further, Buyer shall
not copy, publish, lease, lend, distribute, make available,
encumber, or pledge any software licensed hereunder except as
expressly authorized by the terms and conditions of this Contract,
if at all.
PATENT INDEMNITY
Indemnification Obligation.& Seller shall defend
any suit or proceeding brought against Buyer by a third party, so
far as it is based on a claim that the System furnished under this
Contract constitutes an infringement of any apparatus claim under
any United States of America patent of any third party which has
been examined and validly issued prior to Shipment of the System to
Buyer hereunder, subject to the following conditions: (a) Buyer
notifies Seller promptly in writing after Buyer is presented with
such claim or becomes aware of the possibility of such claim from a
(b) Buyer gives Seller sole& authority to defend
and (c) Buyer fully cooperates with Seller as
requested by Seller in connection with Seller’s efforts to defend
and settle the claim, such as furnishing Seller with related
materials.
(i) (ii) (iii)
Remedy.& In
case the System is in any such suit held to constitute infringement
of any apparatus claim under any United States of America patent of
any third party which patent has been examined and validly issued
prior to Shipment of the System to Buyer hereunder, Seller shall
reimburse Buyer for all damages finally awarded by the judgment and
actually paid by Buyer. In addition, if in such suit all use of the
System by Buyer is enjoined, Seller shall, at its own expense and
option, use commercially reasonable efforts to: (a) procure for
Buyer the right to continue using the S (b) replace the
infringing System with a non-infringing S or (c) modify the
System so that it becomes non-infringing.& At any time, if
Seller believes any such claim or finding of infringement is
likely, Seller may, at its option, take any of the steps in the
immediately preceding sentence.
(i) (ii) (iii)
Exclusions. &In no event will
Seller be liable for any third party claim which: (a) has arisen
from Seller’s compliance with Buyer’s design, formulae, processes,
specifications, or instructions, or with Buyer’s requirements that
a design be produced to perfor (b) has arisen
from the combination of the System with equipment, parts, devices
or elements supplied by anyone other than S (c) has arisen
from an inappropriate use of the System which was inconsistent with
the dedicated purpose or which did not comply with user instruction
provided by S (d) has arisen from reconstruction,
modification or any changes to all or part of the System by anyone
other than S or (e) alleges that the System infringes any
process or method claim of any patent.
(i) (ii) (iii) (iv) (v)
Limitation.& THIS SECTION 11
STATES THE ENTIRE LIABILITY OF SELLER, AND BUYER’S SOLE AND
EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS INCLUDING PATENT RIGHTS& OF ANY THIRD PARTIES,
AND IN RESPECT OF ANY INFRINGEMENT DUE TO SOFTWARE SUPPLIED UNDER
THIS CONTRACT.& IN NO EVENT SHALL
SELLER’S TOTAL LIABILITY TO BUYER UNDER OR AS A RESULT OF
COMPLIANCE WITH THE PROVISION OF THIS SECTION 11 EXCEED THE
AGGREGATE PORTION OF THE PRICE ACTUALLY PAID BY BUYER THAT IS
ATTRIBUTABLE TO THE ALLEGEDLY INFRINGING SYSTEM, AND SELLER’S
LIABILITY UNDER THIS SECTION 11 WILL BE SUBJECT TO, AND COUNT
TOWARD SATISFACTION OF THE LIMITS SET FORTH IN, SECTION
1111111199
12.&& TERM
AND TERMINATION
Term.& This
Contract shall commence as of the Effective Date and shall remain
in effect until the end of the Warranty Period, unless earlier
terminated as permitted herein.
Termination upon Certain Events.& Seller may terminate
this Contract upon notice to Buyer if at any time Buyer becomes
insolvent, is a party to a bankruptcy proceeding as a debtor, or
commits a material breach of any term of this Contract and fails to
cure such breach within thirty (30) days after receipt of notice of
Effects of Termination.& The following
provisions shall survive and remain in effect following any
termination or expiration of this Contract: 1, 3, 5, 7.6, 9, 10.4,
11, 12.3, 13, 14, and 15.
1357.6910.41112.3131415
CONFIDENTIALITY
General Obligation.& Seller retains all
rights of ownership and Intellectual Property Rights pertaining to
any drawings, specifications, and other documents related to the
design, configuration, operation, or maintenance of any equipment,
software, or other items comprising the System or the processes
performed thereby (including schematics, , user manuals, reference
materials, spare parts lists, bill of materials lists, best known
method or “BKM” descriptions, and safety notices) which Seller has
provided to Buyer (“Documents”).& Buyer acknowledges
that such Documents contain trade secrets and other Confidential
Information (as defined below) of Seller.& Accordingly, and
notwithstanding anything to the contrary in the remainder of this
Section 13 or elsewhere in this Contract, the Buyer shall use such
Documents solely for use of the equipment and components thereof
used in the System in accordance with this Contract, and such
Documents may not be used for any other purpose or reproduced in
whole or in part or divulged to any third parties in any way, nor
do the Documents confer the right to replicate individual parts or
components of the System.
Definition.& “Confidential
Information” means any documents, information,& or samples disclosed
or made available by one Party or its representatives (including
contractors) to the other Party or its representatives (including
contractors) pursuant to this Contract, provided that such
documents, information, or samples, are marked as “confidential” or
“proprietary” by the disclosing Party (except that Documents (as
defined above) constitute Confidential Information of Seller
regardless of whether or not so marked).& The terms of this
Contract and the activities contemplated by this Contract are
Confidential Information of both Parties and shall be treated under
this Contract as having been disclosed by each to the
Obligations.& The receiving Party
shall not disclose Confidential Information of the disclosing Party
to any third party without the express prior written consent of the
disclosing Party, other than to the receiving Party’s attorneys,
accountants, and other advisors, who have a need to know such
information and have a duty to keep such information
confidential.& The receiving Party
shall protect the disclosing Party’s Confidential Information with
at least the care with which it protects its own confidential
information of a similar nature but in any event, not less than a
reasonable standard of care.& Neither Party shall
use the Confidential Information of the other Party except in the
performance of its obligations, or exercise of its rights, under
this Contract.& Except for rights
expressly granted in Section 10, neither Party will have, by virtue
of this Contract or its receipt of Confidential Information from
the other Party, any rights to any of the other Party’s
Confidential Information.
Exclusions.& Confidential
Information does not include information that: (a) becomes a matter
of public knowledge through no fault of the receiving P (b) is
lawfully received by the receiving Party from a third party without
restr (c) is independently developed by the
receiving Party without the use of the disclosing Party’s
Confidential I or (d) is lawfully in the possession of
the receiving Party prior to its disclosure by the disclosing
Notwithstanding Section 13.3, Confidential Information may be
disclosed by the receiving Party only to the extent such disclosure
is required to be disclosed pursuant to applicable law or by the
order of a court or other governmental body with jurisdiction,
provided that: (x) the receiving Party notifies the disclosing
Party of such mandatory disclosure as soon as
(y) the disclosing Party is provided reasonable notice and
opportunity to contest such disclosure, or to seek a protective
and (z) the receiving Party cooperates with the
disclosing Party if the disclosing Party seeks a protective order
or otherwise attempts to contest or limit the scope of such
disclosure.&
(i) (ii) (iii) (iv) 13.3(a) (b) (c)
Irreparable Harm.& The Parties recognize
that the loss that would arise from a breach of the obligations
contained in this Section 13 will cause irreparable harm and cannot
reasonably or adequately be compensated in damages in an action at
Therefore, the Parties expressly agree that in addition to any
other rights or remedies that they may possess, they shall be
entitled to injunctive relief without posting bond or any other
court surety to prevent a breach of the obligations contained in
this Section 13.
Publicity.&
Neither Party will issue any press release, advertising publicity
or public statement or in any way engage in any other form of
public disclosure with respect to the existence and terms of this
Contract (or the activities contemplated hereby) without the prior
written approval of the other Party.
EXPORT REGULATIONS
Each Party hereby acknowledges that any Item, including Software
and Technology (as such terms are defined in Council Regulation
or in the Export Administration Regulations 15
CFR Part 730 et al) is or may be subject to one or more export
control laws, regulations or the like, and agrees that it will not
transfer, export or re-export any such Item, including any
documentation, information or product that incorporates, is derived
from or otherwise reveals such, without complying with all
applicable export control laws, regulations and the like, including
obtaining and/or cooperating with the other Party in securing all
appropriate licenses and authorizations.& Each Party
specifically certifies that it will not transfer, export, or
re-export any such Item to any country or entity subject to export
control restrictions and/or embargoes under any applicable laws,
regulations and the like.& Buyer hereby
certifies that it is not engaged in, and will not use or make
available for use the System or any component thereof for any
activities related to the proliferation of nuclear, chemical or
biological weapons or missiles.&
(Council Regulation) (EC)(Export Ad-ministration Regulations) 15 CFR Part
Delivery Delays.& Notwithstanding any
provision within this Contract, delivery delays resulting or
arising from export compliance and control issues will neither
subject Seller to any late delivery charge or other liabilities,
nor excuse Buyer from any performance obligations under this
Contract.&
The failure of any item to be licensable for export shall not be
construed as a failure or breach by Seller of any obligation to
MISCELLANEOUS
Governing Law and Arbitration.& This Contract and
this arbitration clause shall be governed by and construed in
accordance with the laws of the Hong Kong Special Administrative
Region of the People’s Republic of China (“Hong Kong”) excluding
choice of law rules that could cause the application of any laws
other than the laws of Hong Kong.& The 1980 United
Nations Convention on Contracts for the International Sale of Goods
shall not apply to this Contract.& Any action based on
this Contract must be commenced within one (1) year after the event
described in the cause of action arose.& Any dispute,
controversy or claim arising out of or relating to this Contract,
whether in tort, contract, under statute or otherwise, including
questions regarding its existence, validity, interpretation,
breach, or termination (“Dispute”), shall be subject to and finally
resolved by binding arbitration at the Hong Kong International
Arbitration Centre (the “Centre” or “HKIAC”) in accordance with the
HKIAC Administered Arbitration Rules in force as of the Effective
Date of this Contract (“Rules”), which Rules are deemed to be
incorporated by reference into this clause and as may be amended by
the rest of this clause.& The arbitral Tribunal
shall consist of three (3) arbitrators.& Each Party hereto
shall designate one (1) arbitrator within thirty (30) days after
giving or receiving the Notice of Arbitration, failing which the
appointment shall be made by the HKIAC Council.& Such arbitrators
shall be freely selected, and the Parties shall not be limited in
their selection to any prescribed list.& The third arbitrator
shall be appointed by the HKIAC Council and shall serve as chairman
of the Tribunal.& The seat of
arbitration shall be Hong Kong, and the language of the arbitration
proceedings shall be English.& The arbitrators shall
decide any Dispute submitted by the Parties to the arbitration
strictly in accordance with the substantive laws of Hong Kong and
shall not apply any other substantive law.& The award of the
Tribunal shall be final and binding upon the Parties thereto from
the day it is made, and either Party may apply to a court of
competent jurisdiction for enforcement of such award.& Nothing in this
clause shall be construed as preventing any Party from seeking
conservatory or interim relief from any court of competent
jurisdiction.& The fees and costs of
arbitration, including the reasonable costs of legal
representation, shall be borne by the losing Party.&
(1980)(1)(3)(30)(1)
15.2 Local
Regulations.& Buyer will inform
Seller, in writing and immediately, of all formalities to be
observed with respect to the local authorities and of the
prevailing safety regulations at Buyer’s Site.& Furthermore Buyer
will assist Seller to deal with the authorities and to obtain all
necessary permissions required for Seller's staff to perform
Services on Buyer’s Site and will assist Seller’s staff especially
in cases of sickness and accidents.& If any official
permission should be required for carrying out the design, and/or
assembly and commissioning work, and/or operation of the System
according to the laws and regulations applicable for Buyer’s Site
(and applicable local regulations), Buyer shall: (a) inform Seller
in writing prior to the commencement of the design of the S
and (b) be responsible to receive all required permissions from the
authorities before Seller commences the assembly work.& Buyer is solely
responsible for compliance with applicable laws in the purchase,
delivery, installation, and use of each System.
Buyer shall provide a safe and secure work environment at Buyer's
Site. Buyer will, to the extent Buyer has such materials in its
possession, provide Seller with all instructions, safety notices
and any reports regarding the condition of the facilities at
Buyer's Site, and all site and system preparation specifications
and related manuals.& If Seller determines
that insufficient information regarding the facilities at the
Buyer's Site is available to perform the activities contemplated by
this Contract, Seller will notify Buyer of the deficiency and will
consult with Buyer's safety representatives.& Buyer, at its sole
cost and expense, will implement any corrective actions identified
that are necessary to remedy any safety issues with the facilities
at Buyer's Site prior to Seller performing the activities
contemplated by this Contract.& Notwithstanding
anything to the contrary contained in this Contract, if at any time
during the performance of the activities contemplated by this
Contract, Seller determines in its reasonable discretion that
continued performance of the activities contemplated by this
Contract at the Buyer's Site could pose a safety risk for Seller
personnel (or the personnel of Seller's subcontractors), Seller may
suspend performance of the activities contemplated by this Contract
without cost or liability to Buyer until such safety risk has been
remedied to Seller's satisfaction.& If any safety issue
results in a delay in performance, then Seller will be entitled to
an extension of time equal to such delay in Seller's
performance.& Under no
circumstances shall any Seller personnel be required to remain at
the Buyer's Site during an evacuation or to enter or reenter the
Buyer's Site during an emergency or during any other hazardous
situation.
A Waiver and Severability.& Any amendment of this
Contract (including any additional or different terms) will be
valid only if it is made in writing and signed by the Parties,
specifically refers to this Contract and states the Parties’
intention to supplement or modify it. A right may only be waived in
writing by the Party giving the waiver.& No other conduct of a
Party (including a failure to exercise, or delay in exercising, the
right) operates as a waiver of the right or otherwise prevents the
exercise of the right.& A waiver of a right
on one or more occasions does not operate as a waiver of that right
if it arises again, and the exercise of a right does not prevent
any further exercise of that right or of any other
right.& If
any provision of this Contract& becomes, or is held
to be, illegal, invalid, unenforceable in whole or in part, under
any enactment, rule of law or decision of any court, then such
provision or part shall to that extent be deemed severed from this
Contract but the legality, validity and enforceability of the
remainder shall not be affected.&& The
invalid or impracticable provisions of the Contract shall be
promptly replaced by new provisions that are valid and enforceable
and reflect the intention of the Parties to the maximum extent
allowed under applicable law.&
Entire Agreement.& This Contract,
together with the Annexes described in this Contract (which are
binding to the same extent as the Contract and which are
incorporated into this Contract) constitute the entire agreement of
the Parties with respect to the subject matter herein, and replaces
all prior or contemporaneous communications, understandings, and
agreements (whether written or oral).& In the event of any
conflict, ambiguity, or inconsistency between the terms and
conditions of this Contract and Buyer’s terms, purchase order or
any other agreement, document, or correspondence (including
electronic transmissions) between the Parties regarding the
subjects described in the purchase order or this Contract, the
terms of this Contract shall govern and control.
Any notice permitted or required to be given under this Contract
must be in writing and signed by or on behalf of the Party giving
it and may be served personally, by sending it by prepaid recorded
delivery or courier service, registered post or fax to the
addressee as follows:
or to such
other address as either Party may specify for itself by notice to
the other Party given in accordance with this Section. When notice
is given by courier service, such notice will be deemed to have
been served upon receipt of delivery by the courier service to the
other Party.& Notice given in
person shall be deemed to be served immediately. Notice given by
fax shall be deemed to have been served upon receipt.
A Subcontracting. Buyer may not assign this Contract or
assign any rights or delegate any duties under this Contract, in
whole or in part, by operation of law or otherwise, without
Seller’s prior written consent.& Seller may not assign
this Contract or assign any rights or delegate any duties under
this Contract, in whole or in part, without Buyer’s consent, which
will not be u provided, however, that Seller
may assign its rights to receive payments under this Contract, and
Seller may assign all or part of this Contract or delegate any
duties under this Contract, in whole or in part, to any current or
future direct or indirect wholly-owned subsidiary of Applied
Materials, Inc., in each case, without Buyer’s consent.& In addition and
notwithstanding anything to the contrary,& Seller may
subcontract all or any part of the Services or manufacturing
obligations to be performed by Seller under this Contract, in each
case with or without Buyer’s consent. Any attempt to assign this
Contract other than in accordance with this provision will be void
and of no effect.& This Contract shall
be binding upon and inure to the benefit of the Parties and their
permitted successors and assigns.&
Applied Materials, Inc.
Independent Contractors.& The relationship of
Buyer and Seller is that of independent contractor, and nothing in
this Contract: (a) gives either Party the power to direct or
control the day-to-day act (b) makes the
Parties partners, joint venturers, co-owners, or participants in
a or (c) allows either Party to create or
assume any obligation on behalf of the other.
(a) (b) (c)
Interpretation.& In this Contract,
unless the context otherwise indicates:
references to persons include firms, corporations and any other
organization h
references to any Party include its successors or permitted
headings are for convenience only and will not be taken into
consideration in the interpretation of the C
references to the Contract and any statute, agreement or instrument
are deemed to be references to the Contract or such other statute,
agreement or instrument as amended, supplemented, varied, replaced
or novated (as the case may be)
words denoting any gender
references to any legislation or to any section or provision of any
legislation include any: (i) statutory modification or re-enactment
of, or any statutory provision substituted for, that legislation,
and (ii) ordinances, by-laws, regulations and
other statutory instruments issued under that legislation, section
rule of interpretation applies to the disadvantage of a Party on
the basis that the Party drafted the Contract or any part
words “including” and “includes”, and any variants of those words,
will be read as if followed by the words “without
limitation”;
a reference in the Contract to a Section or Annex is a reference to
a Section or Annex of, or to, this C and
the original English version of this Contract (i) is the
controlling version and will supersede any translations or
re- and (ii) shall be binding on the parties
notwithstanding the Chinese text below each clause (which shall not
be binding on the parties and is to be used for reference purposes
15.10&&&&&
Counterparts.& This Contract may be
executed in two or more counterparts, each of which will be deemed
an original and which together will be one and the same
instrument.
15.11&&&&&
Third Parties.& This Contract is
entered into solely between, and may be enforced only by, Buyer and
S and this Contract shall not be deemed to create any rights
in third parties, including employees, suppliers and customers of a
Party, or to create any obligations of a Party to any such third
This Contract does not confer any rights or benefits on any person
or persons existing now or in the future who is not a party to
Contract is signed in two originals, one original for Buyer and one
original for Seller.
[Signature
page & remainder of page is blank]
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