If acting for the Seller, it is often desirable to draft a clause limiting damages.



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If acting for the Seller, it is often desirable to draft a clause limiting damages.



10.3 Limitation on Damages — In the event that ei­
ther Party is entitled to recover damages under this Agree­
ment, such damages shall not include incidental damages
as defined in [Section 2-710 of the Uniform Commercial
Code or the United Nations Convention on Contracts for


С. А. Семко, В. В. Сдобников, С. Н. Чеку нова

the International Sale of Goods, Article 74. Notwithstand­ing any other provision of this Agreement: such claims or relief shall be limited to direct damages which at the date of the Agreement could be reasonably foreseen as a natural con­sequence of such circumstances; the total liability of the Sell­er, including its subcontractors or suppliers, on any and all claims shall not exceed the Purchase Price of the Purchased Goods or service which has given rise to the claim; except as to title and patent indemnity, any such liability shall terminate upon the expiration of the warranty period specified in Article *; and in no event shall the Seller or its subcontractors or suppliers be liable for any special, consequential, incidental, indirect or exemplary damages, including but not limited to, loss of profit or revenues, loss of use of or increased expense of operation of the Purchased Goods or any associated equip­ment, impairment of other goods, cost of capital or modifica­tions to or substitutions of the Purchased Goods, facilities or services, downtime costs or other increased expense of opera­tion, or claims of the Buyer's customers due to added costs or losses, service interruption or failure of supply.

Article 11 Arbitration

11.1 Disputes — Any and all disputes, controversies,
claims and differences arising out of or relating to this
Agreement, or any breach thereof, which cannot be set­
tled through correspondence and mutual consultation of
the Parties hereto, shall be finally settled by arbitration in
accordance with the * Rules of the * Association, in effect
on the date of this Agreement, by one or more arbitrators
elected in accordance with such rules. In the event of any
conflict between these rules and the provisions of this Arti­
cle, the provisions of this Article shall govern.

11.2 Selection of Arbitrators — Upon the written de­
mand of either of the Parties concerned, the Parties shall


Учебник коммерческого перевода. Английский язык

attempt to appoint a single arbitrator. If they are unable to agree within * days from such demand, then each of the Parties shall appoint one arbitrator and the two nominated shall in turn choose a third arbitrator. If arbitrators chosen by the Parties cannot agree on the choice of the third arbi­trator within a period of* days after their nomination, then the third arbitrator shall be appointed by [name or arbitra­tion association].

[Note: There are differing advantages of having one as opposed to three arbitrators, including delay and cost and expertise. Unless the value is significant, usually the most expeditious and least costly is to go with a single arbitra­tor. The foregoing clause is only a sample and, as in any contract, should be modified to meet the conditions, par­ties and circumstances.]

11.3 Situs of Arbitration — Arbitration proceedings shall be held in the City of*, USA, or such other place as the Parties may mutually agree. The decision of the Arbi­trator (s) shall be final and binding upon the Parties here­to, not subject to appeal and shall deal with the questions of costs of the arbitration and all matters related thereto. The proceedings, all pleadings, documents, correspond­ence and the Arbitration Award shall be written in English. Judgement upon* the award or decision rendered by the arbitrator (s) may be entered in any court having jurisdic­tion thereof, or application may be made to such court for a judicial recognition of the Award or an order of enforce­ment thereof, as the case may be.

[1 1.4 New York Convention — The Parties acknowledge that this Agreement and any award rendered pursuant to it shall be governed by the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.]

11.5 Enforceabilitv — The Seller represents that an ar­bitration award reached pursuant to this Article with re­spect to any dispute, controversy, claim or difference aris-


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

ing out of or relating to this Agreement is enforceable un­der the laws of [Seller's County].

11.6 Enforceabilitv — The Buyer represents that an ar­bitration award reached pursuant to this Article with re­spect to any dispute, controversy, claim or difference aris­ing out of or relating to this Agreement is enforceable un­der the laws of [Buyer's County].

Article 12 Force Majeure

12.1 Definition — Force Majeure shall mean any event or condition, not existing as of the date of signature of this Agreement, not reasonably foreseeable as of such date and not reasonably within the control of either Party, which prevents in whole or in material part the performance by the Parties of their obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasona­ble. Without limiting the foregoing, the following shall constitute events or conditions of Force Majeure: acts of State or governmental action, orders, legislation, regula­tions, restrictions, priorities or rationing, riots, disturbance, war (declared or undeclared), strikes, lockouts, slow­downs, prolonged shortage of energy supplies, interrup­tion of transportation, [inflation beyond the rate of*], embargo [inability to procure or shortage of supply of materi­als,, equipment or production facilities], prohibition of im­port or export of goods covered by this Agreement, epi­demics, fire, flood, hurricane, typhoon, earthquake, light­ning and explosion. If by any of the above-mentioned caus­es, an allocation of supplied must be made, the Parties hereby agree that such allocation will be fairly made.

[It is in particular expressly agreed that any refusal or failure of any governmental authority to grant any export license legally required for the fulfilment by the Seller of its


Учебник коммерческого перевода. Английский язык

obligations hereunder shall eanstitute an event of Force Ma­jeure.] This phrase should not be included if under Article 3 the Government Approval clause does not release the Buyer if it fails to obtain the necessary approval.

12.2 Notice — Upon giving written notice to the other
Party, a Party affected by an event of Force Majeure shall
be released without any liability on its part from the per­
formance of its obligations under this Agreement, except
for the obligation to pay any amounts due and owing here­
under, but only to the extent and only for the period that
its performance of such obligations is prevented by the
event of Force Majeure. Such notice shall include a de­
scription of the nature of the event of Force Majeure, and
its cause and possible consequences. The Party claiming
Force Majeure shall promptly notify the other Party of the
termination of such event.

12.3 Confirmation — The Party invoking Force Ma­
jeure shall provide to the other Party confirmation of the
existence of the circumstances constituting Force Ma­
jeure. Such evidence may consist of a statement or certif­
icate of an appropriate governmental department or agen­
cy where available, or a statement describing in detail the
facts claimed4o constitute Force Majeure.

12.4 Suspension of Performance — During the period
that the performance by one of the Parties of its obliga­
tions under this Agreement has been suspended by reason
of an event of Force Majeure, the other Party may likewise
suspend the performance of all or part of its obligations
hereunder to the extent that such suspension is commer­
cially reasonable.

12.5 Termination — Should the period of Force Ma­
jeure continue for more than * consecutive months, either
Party may terminate this Agreement without liability to
the other Party, except for payments due to such date,
upon giving written notice to the other Party.


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

Article 13 Termination

13.1 Term — This Agreement shall take effect as of the
date first above written.

13.2 Termination — If all or part of the work is termi­
nated prior to its completion, such work shall be deemed to
have been executed to the extent of the state progress which
the Seller has reached as of the date of termination, and the
Buyer shall pay termination charges determined in accord­
ance with the Seller's standard accounting practices upon
submission of the Seller's invoices thereof. Except as spe­
cifically agreed in writing, termination shall not relieve ei­
ther Party of any obligation arising out of work performed
prior to termination. Charges for the terminated portion of
contracts are payable by the Buyer to the Seller upon sub­
mission of its invoices for the Purchased Goods.

13.3 Termination — Notwithstanding the provisions of
Section 13.1 above, this Agreement may be terminated in
accordance with the following provisions:

 

(a) Either Party hereto may terminate this Agreement
at any time by giving notice in writing to the other Party,
which notice shall be effective upon dispatch, should the
other Party file a petition of any type as to its bankruptcy,
be declared bankrupt, become insolvent, make an assign­
ment for the benefit of creditors, go into liquidation or
receivership, or otherwise lose legal control of its business,
or should the other Party or a substantial part of its busi­
ness come under the control of a third party;

(b) Either Party may terminate this Agreement by giv­
ing notice in writing to the other Party, should an event of
Force Majeure continue for more than * (*) months as
provided in Article 12; and

(c) Either Party may terminate this Agreement by giv­
ing notice in writing to the other Party in the event the
other Party is in material breach of this Agreement and


Учебник коммерческого перевода. Английский язык

shall have failed to cure such breach within 30 (thirty) days of receipt of written notice thereof from the first Party.



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