General Conditions for the Supply of
Plant and Machinery for Export [CD1]
Prepared
under the auspices of the United Nations Economic Commission for Europe Geneva,
March, 1953
1.
Preamble
1.1. These
General Conditions shall apply, save as varies by express agreement accepted in
writing by both parties.
2.
Formation
of Contract
2.1. 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 time limit (if
any) fixed by the purchaser.
2.2. If
the Vendor, in drawing up his tender, has fixed a time-limit 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 time-limit,
provided that there shall be not binding Contract unless the acceptance reaches
the Vendor not later than one week after the expiration of such time-limit.
3.
Drawing
and descriptive document
3.1. The
weights, dimensions, capacities, prices, performance ratings and other data
included in catalogues, prospectuses, circulars, advertisements, illustrated
matter and price lists constitute an approximate guide. These data shall not be
binding save to the extent that they are by reference expressly included in the
Contract.
3.2. Any
drawings or technical documents intended, for use in the construction of the
Plant or of part thereof and submitted to the Purchaser prior or subsequent to
the formation of the Contract remain the exclusive property of the Vendor. They
may not, without the Vendor’s consent, be utilised by the Purchaser or copied,
reproduced, transmitted or communicated to a third party. Provided, however,
that the said plants and documents shall be the property of the Purchaser;
a. if
it is expressly so agreed, or
b. if
they are referable to a separate preliminary Development Contract on which no
actual construction was to be performed and in which the property of the Vendor
in the said plans and documents was not reserved.
3.3. Any
drawings or technical documents intended for use in the construction of the
Plant or of part thereof and submitted to the Vendor by the Purchaser prior or
subsequently to the formation of the Contract remain the exclusive property of
the Purchaser. They may not, without his consent, be utilised by the Vendor, or
copied, reproduced, transmitted or communicated to a third party.
3.4.
The vendor shall, if required by the
Purchaser, furnish free of charge to the Purchaser at the commencement of the
Guarantee period, as defined in Clause 9, information and drawings other than
manufacturing drawings of the Plant of sufficient detail to enable the
Purchaser to carry out the erection, commissioning, operation and maintenance
(including running repairs) of all parts of the Plant. Such information and
drawing shall be the property of the Purchaser and the restrictions on their
use set out in paragraph 2 hereof shall not apply thereto.
Provided
that if the vendor so stipulates, they shall remain confidential.
4.
Packing
4.1. Unless
otherwise specified :
a. prices
shown in price lists and catalogues shall be deemed to apply to unpacked Plant
;
b. prices
quoted in tenders and in the Contract shall include the cost of packing or
protection required under normal transport conditions to prevent damage to or
deterioration of the Plant before it reaches its destination as stated in the
Contract.
5.
Inspection
and Tests
5.1. If
expressly agreed in the Contract, the Purchaser shall entitled to have the
quality of the materials used and the parts of the Plant, both during
manufacture and when completed, inspected and checked by his authorised
representatives. Such inspection and checking shall be carried out at the place
of manufacture during normal working hours after agreement with the Vendor as
to date and time.
5.2. If
as a result of such inspection and checking the Purchaser shall be of the
opinion that any materials or parts are defective or not in accordance with the
Contract, he shall state in writing his objections and the reason thereof.
TESTS
5.3.
Acceptance tests will be carried out and,
unless otherwise agreed, will be made at the vendor’s works and during normal
working hours. If the technical requirements of the tests are not specified in
the Contract, the tests will be carried out in accordance with the general
practice obtaining in the appropriate branch of the industry in the country
where the Plant is manufactured.
5.4. The
Vendor shall give to the Purchaser sufficient notice of the tests to permit the
Purchaser’s representatives to attend. If the Purchaser is not represented at
the tests, the test report shall be communicated by the Vendor to the Purchaser
and shall be accepted as accurate by the Purchaser .
5.5. If
on any test (other than a test on site, where test on site are provided for in
the Contract) the Plant shall be found to be defective or not in accordance
with the Contract, the Vendor shall with all speed make good the defect or
ensure that the Plant complies with the Contract. Thereafter, if the Purchaser
so requires, the test shall be repeated.
5.6. Unless
otherwise agreed, the Vendor shall bear all the expenses of tests carried out
in his works, except the personal expenses of the Purchaser’s representatives.
5.7. If
the contract provides for test on site, the terms and conditions governing such
tests shall be such as may be specially agreed between the parties.
6.
Passing
or risk
6.1. Save
as provided in paragraph 7.6 the time at which the risk shall pass be fixed in
accordance with the International Rules for the Interpretation of Trade Term(Incoterms)
of the International Chamber of Commerce in force at the date of the formation
of the Contract. Where no indication is given in the Contract of the form of
sale, the Plant shall be deemed to be sold “ex-works”.
6.2. In
the case of a sale “ex-works’, the Vendor must give notice in writing to the
Purchaser of the date on which the Purchaser must take delivery of the Plant.
The notice of the Vendor must be given in sufficient time to allow the
Purchaser to take such measures as are normally necessary for purpose of taking
delivery.
7.
Delivery
7.1. Unless
otherwise agreed, the delivery period shall run from the latest of the
following dates :
a. the
date of the formation of the Contract as defined in Clauses 2;
b. the
date on which the vendor receives notice of the issue of a valid import licence
where such is necessary for the execution of the Contract ;
c. the
date of the receipt by the Vendor of such payment in advance of manufacture as
is stipulated in the Contract.
7.2. Should
delay in delivery be caused by any of the circumstances mentioned in Clauses 10
or by an act or omission of the Purchaser and whether such cause occurs before
or after the time or extended time for delivery, there shall be granted subject
to the provisions of paragraph 5 hereof such extension of the delivery period
as is reasonable having regard to all circumstances of the case.
7.3.
If a fixed time for delivery is provided for
in the Contract, and the Vendor fails to deliver within such time or any
extension thereof granted under paragraph 2 hereof, the Purchaser shall be
entitled, on giving to the Vendor within a reasonable time notice in writing to
claim a reduction of the price payable under the Contract, unless it can be
reasonably concluded from the circumstances of the particular case that the
Purchaser has suffered no loss. Such reduction shall equal the percentage named
in paragraph A of the Appendix of that part of the price payable under the
Contract which is properly attributable to such portion of the Plant as cannot
in consequence of the said failure be put to the use intended for each complete
week of delay commencing on the due date of delivery, but shall not exceed the
maximum percentage named in paragraph B of the Appendix. Such reduction shall
be allowed when a payment becomes due on or after delivery. Save as provided in
paragraph 5 hereof, such reduction of price shall be to the exclusion of any
other remedy of the Purchaser in respect of the Vendor’s failure to deliver as
aforesaid.
7.4. If
the time for delivery mentioned in the Contract is an estimate only, either
party may after the expiration of two thirds of such estimated time require the
other party in writing to agree a fixed time.
Where
no time for delivery is mentioned in the Contract, this course shall be open to
either party after the expiration of six months from the formation of the
Contract.
If
in either case the parties fail to agree, either party may have recourse to
arbitration, in accordance with the provisions of Clause 13, to determine a
reasonable time for delivery and the time so determined shall be deemed to be
the fixed time for delivery provided for in the Contract and paragraph 3 hereof
shall apply accordingly.
7.5. If
any portion of the Plant is respect of which the Purchaser has become entitled
to the maximum reduction provided for by paragraph 3 hereof, or in respect of
which he would have been so entitled had he given the notice referred to
therein, remains undelivered, the Purchaser many by notice in writing to the
Vendor require him to deliver and by such last mentioned notice fix a final
time for delivery which shall be reasonable, taking into account such delay as
has already occurred. If for any reason whatever the Vendor fails within such
time to do everything that he must do to effect delivery the Purchaser shall be
entitled by notice in writing to the Vendor and without requiring the consent
of any Court, to terminate the Contract in respect of such portion of the Plant
and thereupon to recover from the Vendor any loss suffered by the Purchaser by reason
of the failure of the Vendor as aforesaid up to an amount not exceeding the sum
named in paragraph C of the Appendix or, if no sum be named, that part of the
price payable under the Contract which is properly attributable to such portion
of the Plant as could not in consequence of the Vendor’s failure be put to the
use intended.
7.6. If
the Purchaser fails to accept delivery on due date, he shall nevertheless make
any payment conditional on delivery as if the Plant had been delivered. The
Vendor shall arrange for the storage of the Plant at the risk and cost of the
Purchaser. Provided that is the delay in accepting delivery is due to one of
the circumstances mentioned in Clauses 10 and the Vendor is in a position to
store it in his premises without prejudice to his business, the cost of storing
the Plant shall not be borne by the Purchaser.
7.7. Unless
the failure of the Purchaser is due to any of the circumstances mentioned in
Clause 10, the Vendor may require Purchaser by notice in Writing to accept
delivery within a reasonable time.
If
the Purchaser fails for any reason whatsoever to do so within time the Vendor
shall be entitled by notice in writing to the Purchaser and without requiring
the consent of any Court, to terminate the Contract in respect of such portion
of the Plant as is by reason of such failure up to an amount not exceeding the
sum named in paragraph D of the Appendix or, if no sum be named, that part of
the price payable under the Contract which is properly attributable to such
portion of the Plant.
8.
Payment
8.1. Payment
shall be made in the manner and at the time or times agreed by the parties.
8.2. Any
advance payments made by the Purchaser are payments on account and do not
constitute a deposit, the abandonment of which would entitle either party to
terminate the Contract.
8.3. If
delivery has been made before payment of the whole sum payable under the
Contract, Plant delivered shall to the extent permitted by the law of the
country where the Plant is situated after delivery remain the property of the
Vendor until such payment has been effected. If such law does not permit the
Vendor to retain the property in the Plant, the Vendor shall be entitled to the
benefit of such other rights in respect thereof as such law permits him to
retain. The Purchaser shall give the Vendor every assistance in taking any
measures required to protect the Vendor’s right of property or such other
rights as aforesaid.
8.4. A
payment conditional on the fulfilment of an obligation by the Vendor shall not
be due until such obligation has been fulfilled unless the failure of the
Vendor is due to an act or omission of the Purchaser.
8.5. If
the Purchaser delays in making any payment the Vendor may postpone the
fulfillment of his own obligations until such payment is made unless the
failure of the Purchaser is due to an act or omission of the Vendor.
8.6. If
delay by the Purchaser in making any payment is due to one of the circumstances
mentioned in Clause 10, the Vendor shall not be entitled to any interest on the
sum due.
8.7. Save
as aforesaid, if the Purchaser delays in making any payment, the Vendor shall
on giving to the Purchaser within a reasonable time notice in writing be
entitled to the payment on interest on the sum due at the rate fixed in
paragraph E of the Appendix from the date on which such sum become due. If at
the end of the period fixed in paragraph F of the Appendix, the Purchaser shall
still have failed to pay the sum due, the Vendor shall be entitled by notice in
writing to the Purchaser, and without requiring the consent to any Court, to
terminate the Contract and thereupon to recover from the Purchaser the amount
of his loss up to the sum mentioned in paragraph D of the Appendix.
9.
Guarantee
9.1.
Subject as hereinafter set out, the Vendor
undertakes to remedy any defect resulting from faulty design, materials or
workmanship.
9.2. This
liability is limited to defects which appear during the period (hereinafter
called “the Guarantee Period”) specified in paragraph C of Appendix.
9.3.
In fixing this period due account has been
taken of the time normally required for transport as contemplated in the
Contract.
9.4. In
respect of such parts (whether of the Vendor’s own manufacture or not) of the
Plant as are expressly mentioned in the Contract, the Guarantee Period shall be
such other period (if any) as is specified in respect of each of such parts.
9.5. The
Guarantee Period shall start from the date on which the Purchaser receives
notification in writing from the Vendor that the Plant is ready for dispatch
from the works. If dispatch is delayed, the Guarantee Period shall be extended
by a period equivalent to the amount of the delay so as to permit the Purchaser
the full benefit of the time given for trying out the Plant. Provided however
that if such delay is due to a cause beyond the control of the Vendor such
extension shall not exceed the number of months stated in paragraph 11 of the
Appendix.
9.6. The
daily use of the Plant and the amount by which the Guarantee period shall be
reduced if the Plant is used more intensively are sated in paragraph 1 of the
Appendix.
9.7. A
fresh Guarantee Period equal to that stated in paragraph G of the Appendix
shall apply, under the same terms and conditions as those applicable to the
original Plant, to parts supplied in replacement of defective parts renewed in
pursuance of this clause. This provision shall not apply to the remaining parts
of the Plant , the Guarantee Period of which shall be extended only by a period
equal to the period during which the Plant is out of actions as a result of a
defect covered by this Clause.
9.8. In
order to be able to avail himself of his rights under this clause the Purchaser
shall notify the Vendor in writing without delay of and defects that have
appeared and shall give him every opportunity of inspecting and remedying them.
9.9. On
receipt of such notification the Vendor shall remedy the defect forthwith and,
save as mentioned in paragraph 10 hereof, at his own expense. Save where the
nature of the defect is such that it is appropriate to effect repairs on site,
the purchaser shall return to the Vendor any part in which a defect covered by
this Clause has appeared, for repair or replacement by the Vendor, and in such
case the delivery to the Purchaser of such part properly repaired or a part in
replacement thereof shall be deemed to be a fulfilment by the Vendor of his
obligations under this paragraph in respect of such defective part.
9.10. Unless
otherwise agreed, the Purchaser shall bear the cost and risk of transport of
defective parts and of repaired parts or parts supplied in replacement of
sub-defective parts between the place where the Plant is situated and one of
the following points;
i.
the Vendor’s works if the Contract is
“ex-works” of F.O.R.
ii.
the port from which the Vendor dispatched the
Plant if the Contract is F.O.B. F.A.S., C.I.F., or C.& F.
iii.
in all other cases the frontier of the
country from which the Vendor dispatched the Plant.
9.11. Where
in pursuance of paragraph 9 hereof, repairs are required to be effected on
site, the conditions covering the attendance of the Vendor’s representatives on
site shall be such as may be specially agreed between the parties.
9.12. Defective
parts replaced in accordance with this Clause shall be placed at the disposal
of the Vendor.
9.13.
If the Vendor refuses to fulfil his
obligations under this Clause or fails to proceed with due diligence after
being required so to do, the Purchaser may proceed to do the necessary work at
the Vendor’s risk and expense, provided that he does so in reasonable manner.
9.14.
The Vendor’s liability does not apply to
defects arising out of materials provided, or out of a design stipulated, by
the Purchaser.
9.15. The
Vendor’s liability shall apply only to defects that appear under the conditions
of operation provided for by the Contract and under proper use. It does not
cover defects due to causes arising after the risk in the Plant has passed in
accordance with Calsue6. In particular it does not cover defects arising from
the Purchaser’s faulty maintenance or erection or from alterations carried out
without the Vendor’s consent in writing, or from repairs carried out improperly
by the Purchaser, nor does it cover normal deterioration.
9.16.
Save as in this Clause expressed, the Vendor
shall be under no liability in respect of defects after the risk in the Plant
has passed in accordance with Clause 6, even if such defects are due to causes
existing before the risk so passed. It is expressly agreed that the Purchaser
shall have no claim in respect, of personal injury or of damages to property
not the subjectmatter of the Contract or of loss or profit unless it is shown
from the circumstances of the case that the Vendor has been guilty of gross misconduct.
9.17. “Gross
Misconduct” does not comprise any and every lack or proper care of skill, but
means and act or omission on the part of the Vendor implying either a failure
to pay due regard to serous consequences which a conscientious Contractor would
normally foresee as likely to ensure, or a deliberate disregard of any
consequences of such act or omission.
10. Reliefs
10.1. The
following shall be considered as cases of relief if they intervene after the
formation of the Contract and impede its performance :Industrial disputes and
any other circumstances (e.g. fire, mobilization, requisition, embargo,
currency restrictions, insurrection, shortage of materials and restrictions,
insurrection, shortage of transport, general shortage of materials and
restrictions in the use of power) when such other circumstances are beyond the
control of the parties.
10.2. The
party wishing to claim relief by reason of any of the said circumstances shall
notify the other party in writing without delay on the intervention and on the
cessation thereof.
10.3. The
effects of the said circumstances, so far as they affect the timely performance
of their obligations by the parties, are defined in Clauses 7 and 8. Save as
provided in Paragraph 7.5,7.7 and 8.7., if by reason of any of the said
circumstances, the performance of the Contract within a reasonable time becomes
impossible, either party shall be entitled to terminate the contract.
10.4. If
the Contract is terminated in accordance with paragraph 3 hereof, the division
of the expenses incurred in respect of the Contract shall be determined by
agreement between the parties.
10.5. In
default of agreement it shall be determined by the arbitrator which party has
been prevented from performing his obligations and the party shall bear the
whole of the said expenses. Where the Purchaser is required to bear the whole
of the expenses and has before termination of the Contract paid to the Vendor
more than the Vendor’s expenses, the Purchaser shall be entitled to recover the
excess.
If the arbitrator determines
that both parties have been prevented from performing their obligations, he
shall apportion the said expenses between the parties in such manner as to him
seem fair and reasonable, having regard to all the circumstances of the case.
10.6. For
the purposes of this Clause “expenses” means actual out-of-pocket expenses
reasonably incurred, after both parties shall have mitigated their losses as
far as possible. Provided that as respects Plant delivered to the Purchase the
Vendor’s expenses shall be deemed to be that part of the price payable under
the Contract which is properly attributable thereto.
11. Limitations of damages
11.1. Whether
either party is liable in damages to the other these shall not exceed the
damage which the party in default could reasonably have foreseen at the time of
the formation of the Contract.
11.2. The
party who sets up a breach of the Contract shall be under a duty to take all
necessary measures to mitigate the loss which has occurred provided that he can
do so without unreasonable inconvenience, or cost. Should he fail to do so, the
party guilty of the breach may claim a reduction in the damages.
12. Rights at termination
12.1. Termination
of the Contract , from whatever cause arising, shall be without prejudice to
the rights of the parties accrued under the Contract up to the time of
termination.
13. Arbitration and Law applicable
13.1.
Any dispute arising out of the Contract shall
be finally settle, in accordance with the Rules of Conciliation and Arbitration
of the International Chamber of Commerce, by one or more arbitrators designated
in conformity with those Rules.
13.2. Unless
otherwise agreed, the Contract shall be governed by law of the Vendor’s
country.
13.3. If
the parties expressly so agree, but not otherwise, the arbitrators shall, in
giving their ruling, act as amiable compositors.
APPENDIX
(To
be completed by parties to the Contract)
Clause
A.
Percentage to be deducted for each week’s
delay 7.3…..per cent
B.
Maximum percentage which the deductions above
7.3…. per cent
C.
Maximum amount recoverable for non-delivery
7.5….(in the agreed currency)
D.
Maximum amount recoverable on termination
7.7….(in the agreed by Vendor for failure to take delivery or make currency)
E.
Rate of interest on overdue payments 8.7……per
cent Per annum
F.
Period of delay in payment authorising
8.7…..months termination by Vendor.
G.
Guarantee period for original Plant and
9.7…….months Parts replaced or renewed
9.5……..months
H.
Maximum extension of guarantee period
9.6…….hours/day
1.
Daily use of Plant
2. Reduction
of Guarantee period 9.6……………. for more intensive use.
0 Comments
Thank you for your response. It will help us to improve in the future.