CMAC STANDARD NEWBUILDING CONTRACT
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THIS CONTRACT, is made this (date) day of (month), (year), by and between, (full name of the BUYER), a corporation organized and existing under laws of (country or area of the BUYER), having its principal office at (country or city), as one party (hereinafter called the “BUYER” or “Principal”), and (full name of the shipbuilding trading company) a corporation organised and existing under laws of P.R. China, having its principal office at P.R. China as well as (full name of the shipbuilder) a corporation organized and existing under laws of P.R. China, having its principal office at P.R. China, together as the other party (hereinafter called the “SELLER” or “BUILDER”).
WITNESSTH:
In consideration of the mutual covenants contained herein, the SELLER agrees to design, build ,equip, launch and complete at the SELLER’s shipyard and to sell to the BUYER after accomplishment and successful trial of (type, name and number of the vessels), The technical Specifications will be described in Article I of the Contract. The VESSEL will be registered under the flag of (name of flag country). The BUYER agrees to purchase and take delivery of the aforesaid VESSEL from the SELLER and to pay for the same in accordance with the terms and conditions hereinafter set forth.
SECTION 1 VESSEL
ARTICLE Ⅰ DESCRIPTION
1. HULL NUMBER
The Vessel shall be constructed at SELLER’s shipyard or the shipyard specified by the SELLERS and shall have the BUILDER’s Hull No: .
2. PRINCIPAL TECHNICAL DOCUMENTATION
The VESSEL shall be constructed, equipped and completed in accordance with the following principal technical documentation:
(1) Specification (Drawing No. )
(2) General Arrangement (Drawing No. )
(3) Midship Section (Drawing No.)
(4) Makers list (Drawing No. )
3. PRINCIPAL TECHNICAL PARAMETERS OF THE VESSEL
The principal technical parameters of the VESSEL as per the Specifications are as below:
(1) Principal Paticulars and Dimensions of the VESSEL
Length overall abt. m
Length between perpendiculars m
Breadth, moulded m
Depth, moulded m
Designed Draft m
Speed knot
Deadweightt
Hold Capacity m3
(2) Propelling Machinery:
The VESSEL shall be equipped, in accordance with the Specifications, with set (s)
. of Main Engine of type with MCR kW and rated revolution rpm.
The technical parameters of the VESSEL shall be defined, measured, and approved in accordance with the “Specifications”:
4. GUARANTEES
(1) Speed
The Builder guarantees that the trial speed, after correction, is to be not less thannautical miles per hour on the trial condition of the weather and clean hull as stipulated in the Specifications. The speed shall be corrected for wind speed and shallow water effect with the method as specified in the Specifications.
(2) Deadweight
The term, “Deadweight”, as used in the Contract, shall be as defined in the Specifications.
The Builder guarantees that the VESSEL is to have a deadweight of not less than metric tons at the designed loaded draft of meters in sea water of 1.025t/ m3 specific gravity.
(3) Hold Capacity
The Builder guarantees that the VESSEL’s actual hold capacity is to be not less than m3 as specified in the Specifications.
(4) Fuel Oil Consumption
The Builder guarantees that the fuel oil consumption of the Main Engine at shop test is not to exceed grams/brake horse power/hour at normal continuous output at shop trial based on diesel fuel oil having a lower calorific value of kilocalories per kilogram.
(5) The actual speed, deadweight，hold capacity and fuel oil consumption of the VESSEL shall be measured by the BUILDER in the presence of the BUYER’s supervisor(s) or the Representative authorized by the BUYER for purpose of confirmation or approval.
Should there be any dispute between the BUILDER and the BUYER in such measurements, Classification Society shall be appointed to make remeasurements subject to the agreement by both parties. The result made by the Classification Society shall be final and binding to both parties.
ARTICLE Ⅱ CLASSIFICATION,RULES AND REGULATIONS
1. The VESSEL, including its design construction inspection test and delivery shall conform to the rules , regulations and the conventions of (herein insert the “Classification Society”)， and shall obtain the class notation of and shall also meet the requirements of the regulations and the rules of the flag authorities as below:
(1) The regulations and the rules having becoming effective on the date of the signing date of signing of the Contract, or
(2) The regulations and the rules which have not been effective while have been officially approved and published on the date of signing of the Contract and are to come into force pirot to the delivery of the VESSEL.
All the regulations, the rules and requirements of the flag authorities and the Classification Society shall be unconditionally met.
2. All the laws rules and regulations of the authorities shall be final and binding upon the parties hereto.
3. All fees and charges incidental to Classification and to comply with the rules, regulations and requirements of the Contract as described in the Specifications as well as royalties, if any, payable on account of the construction of the VESSEL shall be for the account of the BUILDER, except as otherwise provided and agreed herein.
The key plans, materials and workmanship entering into the construction of the VESSEL shall at all times be subject to inspections and tests in accordance with the rules and regulations of the Classification Society.
ARTICLE Ⅲ DESIGN-LIABILITY IN THE DESIGN CONTRACT
The design of the VESSEL shall be carried out by a design company in accordance with the Design Specifications based on the requirements of the BUYER. The design shall determine the performance and technical parameters of the VESSEL (including navigation areas and shipping course, ship type, trading purpose, nationality and class, propelling equipment, speed and reserved power, endurance, deadweight, hold capacity and accommodation facilities), as well as compliance with the rules and regulations of CLASSIFICATION SOCIETY and relevant authorities. A design contract shall be executed by the PARTIES for quality assurance and clarification of the obligations.
If the BUYER assigns design company from outside of
If the design company is assigned by the BUILDER, the design contract shall be signed between the BUILDER and this design company. In such event, the BUILDER shall undertake responsibility for any defect of the VESSEL and mistake arising from the design, or any deficiency of speed, deadweight, fuel oil consumption and hold capacity due to non-compliance with the relevant regulations and rules, and for any extension of the Delivery Time of the VESSEL due to the delay in the delivery of the drawings.
ARTICLE Ⅳ ENVIRONMENTAL PROTECTION
1. IMO HAZARDOUS MATERIALS INVENTORY
The BUILDER shall, in accordance with the IMO Guidelines on Ship Recycling, with amendments in force as of the date of the Contract:
(1) Endeavour to take due account of the Vessel’s Recycling disposal when designing and constructing the Vessel;
(2) Maximizing the use of the materials of green, low carbon and being recycled safely and environmental friendly;
(3) Minimizing the use of the materials which have been known to be potentially hazardous to human health and the environment.
In consultation with equipment manufactures, the BUILDER will provide the Buyer with a Green Passport Statement of Compliance issued by the Classification Society containing information including the Vessel’s hull number and main particulars and listing any and all equipment and systems having been known to be potentially hazardous utilized in the construction of the Vessel.
The list of the materials which are potentially hazardous shall contain the location and the approximate quantity/volume of each material on board of the Vessel.
2. Protective Coating Standard
The Vessel’s double-side skin spaces and dedicated seawater ballast tanks shall be coated in accordance with the Specifications. The Protective Coating Standard should be in compliance with the applicable laws, regulations, rules and requirements of the Classification Society and the Regulatory Authorities.
3. Source of Origin
If so requested by the Buyer, the BUILDER shall identify the country of origin of the main components listed in the Maker’s List and Specifications.
SECTION 2 FINANCIAL
ARTICLE V CONTRACT PRICE & TERMS OF PAYMENT
1. CONTRACT PRICE:
The purchase price of the Vessel is (Amount and Currency, hereinafter called the “Contract Price”), net receivable by the BUILDER which is exclusive of the BUYER’s Supplies as provided in Article XI hereof, and shall be adjusted subject to Article VI under the Contract.
2. CURRENCY:
Any and all payments by the BUYER to the BUILDER under the Contract shall be made in
(Currency and Symbol).
3. TERMS OF PAYMENT:
The Contract Price shall be paid by the BUYER to the BUILDER in installments as follows:
(1) The 1st Installment:
The sum of United States Dollars(USD), representing
. percent ( %) of the Contract Price, shall become due and payable and be paid by the BUYER concurrently within three (3) working days after the BUILDER issued the Letter of Refund Guarantee.
(2) The 2nd Installment:
The sun of United States Dollars(USD), representing
. percent ( %) of the Contract Price, shall become due and payable and be paid within three (3) business days after the cutting of the first steel plate of the Vessel.
(3) The 3rd Installment:
The sun of United States Dollars(USD), representing
. percent ( %) of the Contract Price, shall become due and payable and be paid within three (3) business days after keel-laying of the first section of the Vessel.
(4) The 4th Installment:
The sun of United States Dollars(USD), representing
. percent ( %) of the Contract Price, shall become due and payable and be paid within three (3) business days after launching of the Vessel.
(5) The 5th Installment:
The sun of United States Dollars(USD), representing
. percent ( %) of the Contract Price plus any increase or minus any decrease due to modifications and/or adjustments to the Contract Price in accordance with provisions of the relevant Article hereof, shall become due and payable and be paid by the BUYER to the BUILDER on date of delivery of the Vessel. The BUILDER shall send to the BUYER an email or facsimile demand for this installment ten (10) days prior to the scheduled date of delivery of the Vessel.
(6) The 6th Installment:
The sun of United States Dollars(USD), representing
. percent ( %) of the Contract Price shall be paid within three (3) working days after the expiration of the guarantee period of the Vessel.
4. METHOD OF PAYMENT
(1) 1st Installment:
The BUYER shall remit the amount of this installment to the receiving bank nominated by the BUILDER (to name the bank here), for credit to the account of the BUILDER, within three (3) business days after receiving notice in writing from the BUILDER which should also be confirmed and signed by the BUYER’s authorized representative (same as below) regarding effectiveness of the Contract.
(2) 2nd Installment:
The BUYER shall remit the amount of this installment to the receiving bank nominated by the BUILDER, for credit to the account of the BUILDER, within three (3) business days after receiving notice in writing from the BUILDER regarding cutting steel of the Vessel.
(3) 3rd Installment:
The BUYER shall remit the amount of this installment to the receiving bank nominated by the BUILDER, for credit to the account of the BUILDER, within three (3) business days after receiving notice in writing from the BUILDER regarding keel-laying of the Vessel.
(4) 4th Installment:
The BUYER shall remit the amount of this installment to the receiving bank nominated by the BUILDER, for credit to the account of the BUILDER, within three (3) business days after receiving notice in writing from the BUILDER regarding launching of the Vessel.
(5) 5th Installment (Payable upon delivery of the Vessel):
The BUYER shall, at least three (3) bank business days prior to the scheduled date of delivery of the Vessel, make a cash deposit with the bank nominated by the BUILDER, covering the amount of this installment as adjusted in accordance with the provisions of the Contract as agreed by the Parties hereto, with an irrevocable instruction that the said amount shall be released to the BUILDER against presentation by the BUILDER to the said Bank, of a copy of the Protocol of Delivery and Acceptance signed by the BUYER’s authorized representative and the SELLER. Interest, if any, accrued from such deposit, shall be for the benefit on the BUYER.
Unless otherwise provided in the Contract, the BUYER shall not defer or refuse payment of any installment for the reason of any disputes or arguments of whatsoever nature between the Parties.
(6) The 6th Installment:
The BUYER shall remit the amount of this installment to the receiving bank nominated by the BUILDER, for credit to the account of the BUILDER within three (3) working days after receipt of the notice from the BUILDER stating the expiration of the guarantee period of the Vessel.
5. PREPAYMENT:
The BUYER shall have the obligation to make prepayment of any and all installments before delivery of the Vessel, by giving to the SELLER at least thirty (30) calendar days prior notice in writing, without any price adjustment of the Vessel for such prepayment.
6.SECURITY FOR PAYMENT OF INSTALLMENTS BEFORE DELIVERY:
The BUYER shall, concurrently when the Contract being signed, deliver to the BUILDER an irrevocable and unconditional Letter of Guarantee in the from annexed hereto as Exhibit “B” in favor of the BUILDER issued by a first class international bank (hereinafter called the “Guarantor”) acceptable to BUILDER’s bank and the BUILDER. This guarantee shall secure the BUYER’s obligation for the payment of all 2nd, 3rd and 4th installments of the Contract Price.
7. REFUNDS
All payments made by the BUYER prior to delivery of the Vessel shall be in the nature of advance to the BUILDER, and in the event the Contract is rescinded or canceled by the BUILDER, all in accordance with the specific terms of the Contract permitting such rescission or cancellation, the BUILDER shall refund to the BUYER the full amount of all sums already paid by the BUYER to the BUILDER under the Contract, together with interest (at the rate set out in respective provision thereof) from the respective payment date(s) to the date of remittance by telegraphic transfer of such refund to the account specified by the BUYER.
As security to the BUYER, the BUILDER shall deliver to the BUYER, concurrently with the Contract being signed, a Refund Guarantee to be issued by (to name bank here) in the form as per ANNEX “A” annexed hereto.
ARTICLE VI ADJUSTMENT OF THE CONTRACT PRICE
The Contract Price of the VESSEL shall be adjusted subject to (1) the actual technical particulars different from the Specification and/or (2) the external changes in the market different from the situation when signing the Contract . It is mutually agreed by both parties that the said technical particulars refer to the speed, the deadweight, the hold capacity, the fuel consumption of the main engine, delivery time and other items, and the said external changes in the market refer to the price of major materials and exchange rate. It is understood by both parties that the adjustment of the Contract Price refer to the increase or reduction of the Contract Price and any adjustment of the Contract Price is by way of liquidated damages and not by way of penalty.
This Article specifies the amount of liquidated damages for the deficiency of abovementioned technical particulars and changes in the market as below.
1. SPEED
(1) If the reduction of the speed (as determined by the sea trial after correction according to the Specifications, same is to apply to below) is less than three-tenths (3/10) of one knot below the guaranteed speed as specified in Paragraph 4 (1) of Article I, there shall be no adjustment of the Contract Price.
(2) However, if the reduction of the speed is greater than or equal to three-tenths (3/10) of one knot below the guaranteed speed as specified in Paragraph 3 (1) of Article I, the Contract Price shall be reduced as follows:
In case of reduction of less than 0.3 knot USD 0
In case of reduction
at or above 0.30 but below 0.40 knot USD
at or above 0.40 but below 0.50 knot USD
at or above 0.50 but below 0.60 knot USD
at or above 0.60 but below 0.70 knot USD
at or above 0.70 but below 0.80 knot USD
at or above 0.90 but below 1.00 knot USD
(3) If the reduction in speed is greater than 1 knot below the guaranteed speed, the BUYER shall at his own discretion either reject the VESSEL or cancel the Contract in accordance with Article XXVII, or may accept the VESSEL at a reduction in the Contract Price as above provided, by United States Dollars only (USD ) being the maximum.
(4) The BUILDER shall be entitled to carry out further sea trials after correcting the defects which result in the speed reduction to achieve the guaranteed speed as specified in the Specification.
(5) If the actual speed is more than the guaranteed speed as specified in the Specification, the BUYER shall provide bonus to the BUILDER as below method:
If the increase of the speed is less than three-tenths (3/10) of one knot more than the guaranteed speed, there shall be no adjustment of the Contract Price.
Thereafter the Contract Price shall be increased by USD for each one-tenths (1/10) of one knot more than the guaranteed speed, but the maximum amount shall not be more than United States Dollars (USD).
2. DEADWEIGHT
(1) If the actual deadweight of the VESSEL at design draft determined in accordance with the Specifications is not less than 98% of the guaranteed deadweight ( metric ton), there shall be no adjustment of the Contract Price.
(2) The Contract Price shall be decreased by the sum of United States Dollars (USD ) for each full metric ton of such reduction being less than 98% of the guaranteed deadweight ( ) metric tons.
(3) If the reduction in the VESSEL’S actual deadweight is greater than metric tons below the guaranteed deadweight, the BUYER may, at its option, reject the VESSEL or cancel the Contract in accordance with the provisions of Article XVII of the Contract, or may accept the VESSEL with reduction in the Contract Price up to the maximum amount of United States Dollars(USD ).
(4) If the increase of actual deadweight of the VESSEL at design draft determined in accordance with the Specifications is less than 102% of the guaranteed deadweight ( metric ton), there shall be no adjustment of the Contract Price, while the Contract Price shall be increased by the sum of United States Dollars (USD ) for each full metric ton of such increase being more than 102% of the guaranteed deadweight ( ) metric tons. But the maximum amount increased shall not be more than United States Dollars (USD ).
3. HOLD CAPACITY
(1) If the actual hold capacity of the VESSEL is not less than 98% of the guaranteed hold capacity as specified in the Specification, there shall be no adjustment of the Contract Price.
(2) If the actual hold capacity of the VESSEL is less than 98% of the hold capacity as specified in the Specification, then for each full cubic meter thereafter below the hold capacity, the Contract Price shall be reduced by the sum of USD for each full cubic meter as liquidated damages up to a maximum amount United States Dollars (USD)
(fractions of one percent to be prorated).
(3) If the reduction of the VESSEL’S actual hold capacity is greater thanbelow the hold capacity as specified in the Specification, the BUYER may reject the VESSEL or cancel the Contract.
(4) If the actual hold capacity of the VESSEL is more than 102% of the hold capacity as specified in the Specification, then for each full cubic meter thereafter above the hold capacity, the Contract Price shall be increased by the sum of United States Dollars (USD ) for each cubic meter. But the maximum amount increased shall not be more than United States Dollars (USD ) (proportionally the amount less than 1 cubic meter can be exempted).
4. EXCESSIVE FUEL CONSUMPTION OF THE MAIN ENGINE
(1) If the actual fuel consumption of the Main Engine, as determined on the test bed is equal to or less than five percent (5%) of the guaranteed fuel consumption as specified under the provision of the Contract and the Specifications, there shall be no adjustment of the Contract Price.
(2) However, if the actual fuel consumption as determined by the test bed is greater than five percent (5%) above the guaranteed fuel consumption then, the Contract Price shall be reduced by the sum of United States Dollars (USD) for each whole percentage (1%) increase in fuel consumption in excess of the above said five (5%) (fractions of one percent to be prorated).
(3) If as determined by test bed such actual fuel consumption of the Main Engines is greater than ten percent (10%). i.e.gram/bhp/h in excess of the guaranteed fuel consumption, the BUYER may reject the main engine or reject the VESSEL or cancel the Contract or may accept the VESSEL at a reduction in the Contract Price but the maximum reduction shall not be more than United States Dollars (USD).
5. DELIVERY
(1) There shall be no adjustment of the Contract Price for the first thirty (30) days of delay in delivery of the VESSEL beyond the Delivery Date as defined in Article XIV hereof ending as of twelve o’clock midnight of the thirtieth (30th) day of delay.
(2) If the delivery of the VESSEL is delayed more than thirty (30) days after the Delivery Date as defined in Article XIV hereof, then, in such event, beginning at twelve o’clock midnight of the thirtieth (30th ) day after the date on which delivery is required under the Contract, the Contract Price of the VESSEL shall be reduced by deducting the sum of United States Dollars
(USD ) per day.
Unless the parties hereto agree otherwise, the total reduction in the Contract Price shall be deducted from the fifth installment of the Contract Price and in any event (including the event that the BUYER consents to take the VESSEL at the later delivery date after the expiration of
. days delay of delivery shall not be more than days at the above specified rate of reduction, that is United States Dollars (USD) being the maximum.
(3) If the delay in the delivery exceeds ( ) days (being the total of permissible and non-permissible Delays) after the Delivery Date as defined in Article XIV, in such event, the BUYER may, at its option, terminate or cancel the Contract in accordance with the provisions of Article XIII. The BUILDER may at any time after the expiration of the aforementioned
( ) days, if the BUYER has not served notice of cancellation pursuant to Article X, notify the BUYER of the date upon which the SELLER estimates the VESSEL will be ready for delivery and demand in writing that the BUYER make an election, in which case the BUYER shall, within thirty (30) days after such demand is received by the BUYER, either notify the SELLER of its decision to cancel the Contract, or consent to take delivery of the VESSEL at an agreed future date, it being understood and agreed by the parties hereto that, if the VESSEL is not delivered by such future date, the BUYER shall have the same right of cancellation upon the same terms, as herein provided.
(4) The delivery of the VESSEL shall not be deemed delayed and the Contract Price shall not be reduced for any period when the Delivery Date of the VESSEL is extended by reason of causes and provisions of Articles XI, XIII. The Contract Price shall not be adjusted or reduced if the delivery of the VESSEL is delayed by reason of permissible delays as defined in Article XV hereof.
(5) If the delivery of the VESSEL shall be made earlier than the Delivery Date as stipulated in Article XIV, the BUILDER shall notify the BUYER and that such notification shall be given not less than ( ) days prior to the newly planned delivery date. A certain amount of bonus shall be given by the BUYER to the BUILDER as follows:
In the event that the delivery shall be made within fifteen (15) days earlier than the Delivery Date, the Contract Price shall remain unchanged. In the event that the delivery shall be made more than fifteen (15) days earlier than the specified Delivery Date, then a bonus shall be added to the Contract Price at a rate of United States Dollars Only (USD ) per day for each full day earlier than the fifteenth (15th) day prior to the Delivery Date. The total increase of the Contract Price for the earlier delivery shall be added to the fifth instalment of the Contract Price. While the maximum amount increased shall not be more than United States DollarsOnly (USD )
If the actual delivery time is after the Delivery Date as specified in Article XIV and before the permissible extended delivery date, the BUILDER shall not be entitled to be given bonus as specified in above paragraph 5 (5).
(6) In the event that the BUILDER is unable to deliver the VESSEL on the newly planned delivery date as declared, the VESSEL can, nevertheless, be delivered by the BUILDER at a date after such declared newly planned date.
In such circumstances, and for the purpose of determining the liquidated damages to the BUYER (according to the provisions of Paragraph 1 (1) of this Article) and the BUYER’s right to cancel the Contract (according to the provisions of Paragraph 1 (3) of this Article), the newly planned delivery date declared by the BUILDER shall not be in any way be treated or be taken as having substituted the original Delivery Date as defined in Article XIV. The BUYER’s aforesaid right for liquidated damages and to cancel the Contract shall be exercised to the extent as described in Paragraph 4 (1), 4 (2) and/or 4 (3) of Article XIII.
In whatever circumstances, the Delivery Date as defined in Article VII (not the newly planned delivery date as declared by the BUILDER) shall be used to exercise the BUYER’s right for liquidated damages and to rescind the Contract and the BUILDER’s liability to pay the aforesaid liquidated damages resulting from the delay in delivery of the VESSEL as specified in paragraph 5 (1), 5 (2), and 5 (3).
If the actual delivery time is after the declared newly planned date and before the Delivery Date as specified in Article XIV, the BUILDER shall be entitled to be given bonus as specified in above paragraph 5 (5).
6. MAJOR MATERIALS AND EQUIPMENT
The major materials and equipment referred in this paragraph refer to steels and main propulsion equipment.
The Contract Price of this VESSEL is determined by the market price (basic price) of steels and main propulsion equipment when signing the Contract.
If the price difference between the actual purchase price contracted between the BUILDER and the suppliers is % higher than the basic price, the price difference shall be shared by both parties with the BUILDER undertaking% and the BUYER undertaking%.
7.EXCHANGE RATE
As the construction will last for a long time and the fluctuation of the exchange rate between USD and RMB may cause relevant financial changes of the parties, it is agreed that the exchange rate published by Bank of China on the date when the Contract signed will be deemed as a reference, any price difference due to the fluctuation when paying each installment should be shared by 50% by each party. The maximum of the exchange rate fluctuation shall not exceed 2% of the Contract Price, the part more than 2% should be borne by the BUYER.
8. OTHERS (OPTIONAL CLAUSE)
The purpose of setting aside this clause is to allow the parties to insert special technical requirements for a particular type of vessel and adjustment of the Contract Price arising from the changes (failure to meet or exceeding) in the values of the said special technical requirements.
Any adjustment of the Contract Price made as per Paragraph
9. EFFECTIVENESS OF CONTRACT RESCISSION
It is expressly understood and agreed by the parties hereto that in any case as stated above, if the BUYER rescinds or cancel the Contract pursuant to any provision under this Article, the BUYER shall be entitled to have its rights and compensation as set out in Article XXVII hereof shall not be entitled to any liquidated damage or compensation whether described above or otherwise.
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