Article 7 Inspection and Rejection

[If acting for the Buyer you may want to insert the following paragraphs:

7.1 Right to Independent Inspection — The Buyer has
the right, at its expense, to engage an independent inspection
organization, to inspect and/or test the Purchased Goods pri­
or to shipment. The Seller shall provide all reasonable facil­
ities and assistance for the safety and convenience of such
inspectors in the performance of their duties. Based upon such
inspection, the Buyer has the right to reject nonconforming or
defective Purchased Goods and/or packaging or to require
their correction.

7.2 Right to Inspect — Regardless of whether an inspec­
tion has taken place prior to shipment, the Buyer has the
right to inspect the Purchased Goods upon delivery to the
Buyer's warehouses and, in addition to any other rights
which it may have, the right to reject any defective Pur­
chased Goods, Purchased Goods which fail to conform to
the descriptions and specifications set forth in Schedule II
(or which fail to comply with the Law, regulation, etc.) set
forth in Schedule * of this Agreement. The Buyer will prompt­
ly notify the Seller in writing of all claimed defects and non­
conformities, and such defective or non-conforming Pur-

С. А. Семко, В. В. Сдобников, С. Н. Чекунова

chased Goods will be held for the Seller's instruction and, if the Seller so directs, will be returned at the Seller's expense. The failure to inspect, either prior to shipment or upon de­livery to the Buyer's warehouses, shall not be deemed a waiv­er of any of the rights of the Buyer under any provision of this Agreement.]

Article 8

Inspection of Production Facilities and Production Samples

[If acting for the Buyer and the Purchased Goods are being manufactured specially for the Buyer, you may want to insert the following clause:

8.1. Inspection of Production Facilities and Samples — The Buyer, or an independent inspection organization of the Buyer's choosing, shall have the right to inspect at any time during normal business hours the production facilities where the Purchased Goods are being produced and to inspect the Purchased Goods during production. The Seller shall coop­erate with such inspections. In addition, the Seller shall send to the Buyer at the Seller's expense, prior to, and at reasona­ble intervals during production of the Purchased Goods, pro­duction samples of the Purchased Goods for the Buyer to test and approve.

In the event that the Buyer is not satisfied with either the Purchased Goods being produced at the time of such inspec­tion or with the said production samples, the Buyer shall notify the Seller in writing of its dissatisfaction. The Seller shall immediately seek to cure any such dissatisfaction. In the event that corrections are not immediately made to the satisfaction of the Buyer, Buyer may, at its option, require that production and delivery be suspended pending timely corrections, and such action by the Buyer shall not excuse the Seller from any delays or failure to ship the Purchased Goods on time.]

Учебник коммерческого перевода. Английский язык

Article 9 Warranties

The warranty section, if included, is an extremely sen­sitive negotiated provision. Obviously the Seller will want a «bare bones» minima) approach while the Buyer will want an extensive (both in coverage and time) warranty. The following is only an example of one possible outcome of the negotiations of this provision.

9.1 Warranties — The Seller warrants that all of the Pur­chased Goods delivered hereunder will conform [strictly] to the descriptions and specifications set forth in Schedule 2 of this Agreement [and to production samples furnished by Seller], and will be merchantable, of good material and workmanship and free from defect. This warranty shall survive any inspection, delivery or acceptance of any Pur­chased Goods, and payment thereof by the Buyer and any inspection or certificate by an independent inspection organ­ization. The Seller's obligation shall apply only to failure to meet the foregoing warranties (except as to title) oc­curring within * (*) months from date of delivery pursuant to Article *, of which the Seller is given written notice within * (*) days of such occurrence and provided the Purchased Goods-or part theTeof are made available to the Seller as specified by the Seller. If any of the Purchased Goods or part thereof fails to meet the foregoing warranties (except as to title), the Seller shall repair same or, at its option, replace same in either case [INCOTERM] on the same basis as described in Section 3. Any such failure shall not be cause for extention of the duration of the warranty spec­ified in this Article 9. If such failure or defect cannot be corrected by the Seller's reasonable efforts, the Parties shall negotiate an equal adjustment. The Seller's obligations under paragraph * above shall not apply to any Purchased Goods, or part thereof, which:

С. А. Семко, В. В. Сдобников, С. Н. Чекунова

(a) is normally consumed in operation; or

(b) has a normal life inherently shorter than the war­
ranty period specified in paragraph *; or

(c) is not properly stored, installed, used, maintained
or repaired, or is modified other than pursuant to the Sell­
er's instructions or approval; or

(d) has been subjected to any other kind of misuse or
detrimental exposure, or has been involved in an accident.

With respect to any of the Purchased Goods not manu­factured by the Seller (except for integral parts of the Sell­er's Purchased Goods, to which the warranties set forth above shall apply), the Seller gives no warranty, and only the war­ranty, if any, given by the manufacturer shall apply. Subject to Article *, this Article sets forth the exclusive remedies for claims based upon defects in or non-conformity of the Pur­chased Goods, whether the claim is in contract, warranty, tort (including negligence), or otherwise. Except as set forth in Article *, the foregoing warranties are in lieu of all other warranties, whether oral, written, express, implied or statu­tory. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PAR­TICULAR PURPOSE SHALL APPLY.

Article 10 Indemnification

10.1 [ Product Liability — If acting for the Buyer, depend­ing on the nature of the goods and the marketplace, it may be desirous to have certain indemnities such as the following:

Except for claims, losses or damages directly and solely result-ingfrom or arising out of the Buyer's active negligence, the Sell­er specifically agrees to defend, indemnify and hold the Buyer harmless from and against any and all product liability claims, losses or damages, whether brought as expressed or implied warranty, negligence, or strict liability actions, including the cost of defending any proceedings, resulting in whole or in part

Учебник коммерческого перевода. Английский язык

from the manufacture, purchase, sale, storage (prior to deliv­ery as specified in paragraph * hereof), transportation, or fore­seeable use of the purchased Goods.]

10.2 Patent Indemnification — The Seller shall defend
any suit or proceeding brought against the Buyer and shall
pay any adverse judgement entered therein so far as such suit
or proceeding is based upon a claim that the use of the Pur­
chased Goods or any part thereof manufactured by the Seller
and furnished under this Agreement constitutes infringement
of any patent [in the country of *] providing the Seller is
promptly notified in writing and given authority, information
and assistance for defense of same; and the Seller shall, at its
option, procure for the Buyer the right to continue to use said
Purchased Goods, or modify it so that it becomes non-infring­
ing, or to replace the same with поп-infringing equipment, or
to remove said Purchased Goods and to refund the Purchase
Price. The foregoing states the entire liability of the Sellerwith
regard to patent infringement and is subject to the limitation
of total liability set forth in Article *.

If you are acting for the Seller and the Purchased Goods have been custom made by the Buyer, the following should be considered:

The Buyer agrees to defend, protect, indemnify and save harmless the Seller from any loss, damage or injury arising out of a claim, suit or action at law or in equity for actual or alleged infringement because of the sale of such Purchased Goods, and to defend any such suits or actions which may be brought against the Seller.