Attached files
| file | filename |
|---|---|
| S-1/A - 6D Global Technologies, Inc | v196428_s1a.htm |
| EX-10.3 - 6D Global Technologies, Inc | v196428_ex10-3.htm |
| EX-10.4 - 6D Global Technologies, Inc | v196428_ex10-4.htm |
| EX-10.6 - 6D Global Technologies, Inc | v196428_ex10-6.htm |
| EX-99.5 - 6D Global Technologies, Inc | v196428_ex99-5.htm |
| EX-23.2 - 6D Global Technologies, Inc | v196428_ex23-2.htm |
Exhibit
10.5
(English
Translation)
China
Huaneng
Huaneng
Tieling Changtu Laochengzhen Wind Power Generation
Project
Wind
Turbine Tower Cylinder Purchase Contract
Contract
Index: HN-C-TL/LC-WZ/TT-002
Buyer:
Huaneng Tieling Wind Power Generation Co. Ltd.
Seller:
Liaoning Creative Wind Power Equipment Co., Ltd.
Part
I General Terms
and Conditions
In accordance with the Contract Law of
the People’s Republic of China, Huaneng Tieling Wind Power
Generation Co. Ltd (the Buyer), through the public bidding process,
confirms to purchase Wind Turbine Tower Cylinder for Huaneng Tieling Changtu
Laochengzhen project from Liaoning Creative Wind Power
Equipment Co., Ltd. (the Seller). In order to define the rights and
obligations, assist the mutual cooperation and assure the completion of this
project, both parties, having negotiated, enter this contract.
1 Subject
of Contract
1.1 The
scope of supply in this contract should include but is not limited to the Wind
Turbine Tower Cylinder, internal decoration, spare parts, boosting device,
anti-falling system, specialized tool, technical information, loading, unloading
and transit. Any item omitted from the supply list, which should have been
included in the scope of the supply and is necessary to satisfy the requirement
of the Technology Agreement warranting the performance of the contracted
equipment, should be supplied by the Seller without giving rise to any cost and
expense.
1.2 The
usable life of Wind Turbine Tower Cylinder should exceed 20 years
1.3 The
flange should be manufactured by Pingshan Heavy Industries Flange.
1.4 The
boosting device should be manufactured by Beijing Daweite Technology Development
Co, Ltd.
2 Contract
Price and Documentation
2.1 This
contract price is the contract price in total: Renminbi 29,805,000 Yuan even (In
Capital: Twenty Nine Million Eight Hundred and Five Thousand Even), and shall
cover all the cost, expense and tax including but is not limited to equipment
and parts, insurance, tax payable by the Seller, packing, transit (including the
towing and shipping), technical support, specification (including the
transmittal of any information by mail pertaining to the wind turbine tower
cylinder testing, inspecting, manufacturing and as-built drawing), design
contact and the superintendent.
2.2 This
Price is covering the cost and expense incurred through transit to the
installation project site designated by the Buyer.
2.3 This
contract price in total is the unit price nonnegotiable within the contract
term. The actual contract price in total will be determined by the
actual quantity of Wind Turbine Tower Cylinder purchased.
2.4 The
following documents constitute the agreements made by and between the Buyer and
the Seller, with each read and understood as integrated part of this contract.
Where any ambiguity or conflict between the documents arises, the clarifying
explanation priority should follow the consecutive sequence of the documents as
below.
|
|
(1)
|
Supplemental
agreement or memorandum signed by both parties subsequent to this
Contract;
|
(2) This
contract and its appendixes;
(3) Bid
winning notice;
2
(4) Bidding
invitation and the clarifications by the Buyer;
(5) Bidding
offer and the clarification by the Seller;
(6) Drawings
and technical information provided by the Seller during thecontract
2.5 Technology
Agreement will be entered and signed as the appendix to this contract by the
project companies.
3 Payment
3.1 All
the payment under this contract shall be made in the Chinese
Renminbi.
3.2 Method
of payment: bank wire transfer or draft.
3.3 Partial
payment shall be paid in the following ratio 1:2:1:3:2:1.
3.3.1 Advanced
Payment: In three months prior to the first delivery, the Buyer shall pay 10% of
the contract price, as the Advanced Payment, to the Seller within 30 business
day after the Buyer is in receipt and review of an unconditional and irrevocable
Performance Bond, issued by a domestic bank to guarantee the Seller’s
performance under this Wind Turbine Tower Cylinder manufacture project, and a
payment receipt by the Seller indicating 10% of the total contract
price.
3.3.2 Payment
for Prepared Materials: as soon as an inspection is conducted by the Buyer or
the third party (the wind turbine manufacturer), in accordance with a technical
agreement entered by three parties, after the flange and steel ordered by the
Seller are delivered, the Buyer shall pay 20% of the contract price, as the
payment for prepared materials, to the Seller within 30 business days after the
Buyer is in receipt and review of the Seller’s flange and steel order contract,
duplicate proof of payment and a payment receipt by the Seller indicating 20% of
the contract price.
3.3.3 Payment
for Ring Foundation Progress: as soon as an inspection is jointly conducted by
the Buyer, the Superintendent, the Seller, the wind turbine manufacturer, the
designer representative and the installation contractor after all the ring
foundations are delivered to the project site, the Buyer shall pay
10% of the contract price, as the payment for progress, to the Seller within 30
business days after the Buyer is in receipt and review of the bill of landing,
supply list, insurance policy, inspection certificate and a payment receipt by
the Seller indicating 10% of the contract price.
3.3.4 Payment
for Wind Turbine Tower Cylinder Progress: as soon as each set of the
Wind Turbine Tower Cylinders are produced and delivered to the designated site,
with inspection conducted at wind turbine plant before an inspection certificate
jointly signed and issued by the Buyer, the superintendent, the Seller, the main
equipment manufacturer, the designer representative and the installation
contractor, the Buyer shall pay 30% of the contract price of the set, as the
payment for progress, to the Seller within 30 business days after the Buyer is
in receipt and review of bill of lading, supply list, insurance policy , the VAT
Invoice equivalent to 100% of contract price for this Wind Turbine Towner
Cylinder set and a payment receipt indicating 30% of the contract
price.
3.3.5 As
soon as all Wind Turbine Tower Cylinders are fully and completely installed
pursuant to the contract schedule, the Buyer shall pay 20% of the contract
price, as the inspection payment, to the Seller within 30 business days after
the Buyer is in receipt and review of the inspection certificate and a payment
receipt indicating 20% of the contract price.
3
3.3.6 The
remaining 10% of the contract price is reserved as the Retainage. As soon as the
quality warranty term expires, at the time when the Buyer confirms nonexistence
of defect and issues a certificate, the Buyer shall pay 10% of the contract
price, as the Retainage payment, to the Seller within 30 business days after the
Buyer is in receipt and review of a payment receipt by the Seller indicating 10%
of the contract price. (If any defect is found, the Retainage should
be deducted proportionately; if any replacing or repairing of the equipment is
needed, the quality warranty term shall be computed from the day of the
satisfied replacing or repairing.)
3.4 The
payment date is determined by the day when the Buyer’s bank submits the
payment.
3.5 In
the event of the Seller’s non-performance or non-conforming performance, with
the fault on the part of the Seller, the Seller shall be liable for the
liquidated damage, penalty and/or the damage for breach of contract, and the
Buyer is entitled to a deduction from any aforesaid payments.
4 Delivery
and Shipment
4.1 Shipping
Method: ground shipping.
4.2 Shipping
Destination: FOB project site.
4.3 Designated
Recipient: Huaneng Tieling Wind Power Generator Co. Ltd.
4.4 Delivery
Timing:
Equipment
Delivery Schedule
|
Seq.
No.
|
Milestone
|
Time
Frame
|
Remarks
|
|
1
|
Installation
process activated
|
Date
of the contract signed
|
|
|
2
|
First
set of 10 ring foundations starting to be delivered at the designated
site
|
Prior
to May 10, 2010
|
|
|
3
|
Second
set of 10 ring foundations starting to be delivered at the designated
site
|
Prior
to May 20, 2010
|
|
|
4
|
Third
set of 10 ring foundations starting to be delivered at the designated
site
|
Prior
to May 31, 2010
|
|
|
5
|
First
set of 10 Wind Turbine Tower Cylinder units delivered at (each) designated
site
|
Prior
to June 30, 2010
|
|
|
6
|
Second
set of 10 Wind Turbine Tower Cylinder units delivered at (each)
designated site
|
Prior
to July 15, 2010
|
|
|
7
|
Third
set of 10 Wind Turbine Tower Cylinder units delivered at (each) designated
site
|
Prior
to July 31, 2010
|
All the equipments shall be delivered
in full compliance with the delivery schedule set forth in this contract. In
order to coordinate with the field contractors, the specific delivery date will
be provided by the Buyer’s advanced notice with which the Seller shall comply;
otherwise, a written approval by the Buyer shall be obtained prior to delivery
in advance of this schedule.
The Buyer shall not bear any cost and
expense incurred from the suspended supply of Wind Turbine Tower Cylinder
accumulated in the manufacture’s possession.
4
4.5 A
written notice shall be given to the Buyer at the end of the equipment
production. The arrival date of the equipment at the delivery
destination is the actual delivery date. On the day that the delivery is
completed and the inspection certificate is issued, the title and the risk of
loss on the Seller shall be transferred to the Buyer.
4.6 The
Seller shall arrange the equipment shipping, at the expense of the Seller,
including the cost of freight (including miscellaneous shipping expense) and
insurance.
4.7 In
order to notify the Buyer to get ready for equipment pick-up and storage, the
Seller is hereby required to furnish the bill of lading by facsimile to the
Buyer within one business day of loading.
4.8 The
Seller shall take any necessary measure to wrap and tie the equipment to prevent
damage during transit. If any loss or damage occurs, the Seller shall file a
claim while immediately re-arranging the supply to keep the project on
schedule.
4.9 The
roads around the delivery site: the Seller shall investigate and be familiar
with the condition of the roads around the delivery site, taking any necessary
measure to secure the transit and project progress. The Seller shall submit a
Wind Turbine Tower Cylinder shipping plan to the Buyer no later than 15 days
after the contract is signed.
4.10 If
any shipment fails to reach the designated site due to the fault of the Seller’s
carrier, the extra cost and expense incurred from the re-arranging shipment
shall be bore on the Seller.
4.11 If
the Seller fails to unload the cargo due to an act of god, such as hurricane or
heavy rain, the Buyer may provide assistance, with no assumption of any duty or
expense on the part of the Buyer.
4.12 The
specification shall be attached to the equipment.
4.13 The
Buyer will conduct monthly check-up on the Seller’s supply progress, the result
of which shall be taken into account to reset the Seller’s supply quantity.
Unless the delay to the supply is caused under the Clause 9 of this contract,
the Buyer is entitled to deduct an amount from the payment to the Seller as set
forth by this contract. In addition, a notice of warning will be given,
indicating that no action will be taken if the Seller could make up the delay in
the subsequent monthly supply; otherwise, the Buyer shall be able to modify the
supply quantity under this contract with a proportionate modification to the
contract price in total.
5 Packing
and Labeling
5.1 In
order to safely deliver the supply to the project site in an un-damaged and
non-corrosion condition, the packing shall be durable for long distance shipping
and multiple loading and unloading, equipped with excellent anti-moisture,
anti-corrosion, anti-shock and anti-dirt functions. The Seller will
be held liable for any loss or damage caused by defect packing.
5.2 If
any corrosion, damage or loss to the equipment is caused by the Seller’s defect
or improper packing or insufficient protective measure, the Seller is liable for
any immediate repairing, replacing or damage.
5.3 Seller
will be responsible for any on-site cleaning to the dirt on the interior or
surface of the equipment caused by the Seller’s defect or improper packing or
insufficient protective measure during the transit.
5
6 Quality
Inspection
6.1 The
Seller shall completely and meticulously inspect the quality, quantity and
specification of the equipment in accordance with the technical agreements under
the contract prior to any shipping out of the factory, at the expense of the
Seller. At the same time, an inspection certificate containing specification
bearing the signature of the wind turbine supplier, the Buyer or the
Superintendent authorized by the Buyer, shall be issued.
6.2 As
soon as the goods arrive at the delivery site, the Buyer will inspect the
packing, surface and the quantity of the equipment in accordance with the
technical agreements under the contract. If any non-conformance is found, the
Seller should resolve it immediately. As soon as the equipment arrives at the
installation site, the Buyer will invite the Superintendent, designer
representative, main equipment manufacturer, as well as the Seller to conduct a
joint inspection on the quality, specification and quantity. At the time of
inspection, if the Seller is not timely present, the Buyer shall be able to
proceed with the other relevant parties, the result and the record of which
shall be valid to the contracting parties and serve as admissible evidence when
the Buyer is filing a claim for damage against the Seller.
6.3 At
the time of inspection, if any damage, defect, shortness or non-conformance with
the quality standard and specification as set forth in the Technology Agreement
is found, an inspection report shall record such finding, and is signed by both
parties, with each holding a copy, which shall serve as admissible evidence when
the Buyer is filing a claim for damage against the Seller.
6.4 If
disagreed with the Buyer’s request for repairing, replacing and recovery as set
forth in the aforesaid clauses, the Seller shall submit a reconsideration
request to the Buyer within one week of receipt of the Buyer’s written notice;
otherwise, it is deemed that the Buyer’s request is accepted.
6.5 If
disagreement to the joint inspection report has occurred between the contacting
parties, the inspection shall be assigned to a recognized inspection authority.
The wind turbine supplier shall participate to this inspection, the result of
which has the same legal effect and is binding to both parties, at the cost and
expense of the liable party.
6.6 Upon
receiving the Buyer’s request for repairing, replacing and recovery in
accordance with the aforesaid clauses, the Seller should immediately repair,
replace or supply the missing part, at the cost and expense of the Seller. Any
resulting damage will be deducted by the Buyer from the Retainage or the next
payment.
6.7 Any
delay caused by repairing or replacing the equipment or parts, with the fault on
the part of the Seller, shall not affect the production progress in general;
otherwise, such delay will be treated in accordance with the Clause
7.0.
6.8 Any
aforesaid inspection is only referring to the inspection upon delivery and shall
not constitute an exemption to the Seller’s liability under the Clause 7
regarding the Seller’s product warranty.
6.9 The
Seller should incorporate with the in-house Superintendent sent by the wind
turbine main equipment manufacturer.
6.10 The
Seller’s inspection shall be conducted by experienced technical personnel who
have ever participated in any contract manufacturing Wind Turbine Tower Cylinder
with more than megawatt.
7 Warranty
and Claim
7.1 The
Buyer provides the Seller with integrated manufacture drawing and specification
of the Wind Turbine Tower Cylinder made by the wind turbine manufacturer, and
the Seller shall confirm the applicability of the drawing to the manufacturing
of the projected Wind Turbine Tower Cylinder. The Seller shall strictly comply
with such drawing and standard or specification set forth in the technical
document when manufacturing the Wind Turbine Tower Cylinder. The Seller should
provide any document regarding the material purchase, manufacturing technology
and anti-corrosion coating technology to the wind turbine manufacturer for
review, and should proceed to production only if the quality measure and
technology are approved by the wind turbine manufacturer.
6
7.2 Within
10 days subsequent to the contract signed, the Seller should provide detailed
material preparation schedule and material source. Each manufacturing
stage including the material purchase, cutting, tower welding (welding
technology, welding gap inspection, welding rework), tower pre-installation,
anti-corrosion coating, shipping, loading and unloading and storage, should be
in full compliance with the Wind Turbine Tower Cylinder manufacturing standard
and specification set by the wind turbine manufacturer. If any product is
disregarded or product rework is required due to the non-conformance with the
standard or rule set by the wind turbine manufacturer, the Seller will be held
liable for any damage resulting therefrom.
7.3 The
height of the ring foundation supporting “W” Shape steel shall be determined by
the actual height of the wind turbine.
7.4 The
brand name for the paint to the Wind Turbine Tower Cylinder is Haihong. To the
paint on the surface, the Seller provides the color card and the Buyer will
decide the color. The Buyer’s Logo shall be printed to the Wind Turbine Tower
Cylinder, with the font and printing provided by the Seller. The fee and expense
are included in the contract price. The place, height and color of
the print will be determined by the Buyer.
7.5 The
Seller shall produced 40 identical sets of locks for the Wind Turbine Tower
Cylinder.
7.6 The
quality warranty term under this contract is 18 months starting from the day
when the installation is completed and inspected. After the quality warranty
expires, the Buyer shall issue a final inspection certificate to the Seller
within 15 days, conditioned on the full payment to the Buyer’s claim of damage
submitted within the quality warranty.
7.7 During
the quality warranty term, if any defect or non-conformance to this contract
occurs, the Seller shall repair or replace within 48 hours, at it own expense.
If the Seller failed to timely repair or replace, the Buyer shall be able to
repair or replace on his own or by hiring outside contractor, at the Seller’s
expense. The Seller shall be liable for the Buyer’s damage caused by the
repairing and replacing.
7.8 If
any repairing or replacing the defect equipment results in the suspended
delivery or delayed installation, with the fault on the part of the Seller, the
warranty shall be extended accordingly.
7.9 If
any delay is caused by a failure to comply with the delivery schedule set forth
by this contract, with the fault on the part of the Seller (except force
majeure) , the Seller will be held liable for any damage incurred to the
construction and installation contractors. In addition, the Buyer is entitled to
a liquidated damage from the Seller pursuant to the following scale (unless the
buyer agrees to an extension to the delivery or a waiver of damage), less than
one week counts one week:
7.9.1 If
1 to 2 weeks delay, 2% of delayed supplies’ value will be imposed as weekly
liquidated damage.
7.9.2 If
3 to 4 weeks delay, 4% of delayed supplies’ value will be imposed as weekly
liquidated damage.
7.9.3 If
5 or more weeks delay, 6% of delayed supplies’ value will be imposed as weekly
liquidated damage.
7.9.4 If
6 or more weeks delay, the Buyer is then entitled to terminate partial or whole
contract and claim for liquidated damage for any delayed deliveries and
damage.
7
7.10 The
liquidated damage paid by the Seller does not release the Seller’s duty to
continue supply under the contract.
7.11 If
any defect of quality occurs or supply schedule fails to meet the Buyer’s
requirement, the Buyer is entitled to assign the other Wind Turbine Tower
Cylinder manufacturer to manufacture.
7.12 Any
expense induced by the increased work and the compensation to the contraction
and installation contractors that result from the defect of quality shall be
bore by the Seller.
7.13 All
Wind Turbine Tower Cylinder internal decoration pieces shall be brand new
products, interchangeable with the corresponding installed pieces, made in
accordance with the same specification, material, and manufacturing process,
also interchangeable with the same part between the Wind Turbine Tower
Cylinders.
7.14 During
the hoisting and rigging, the Seller shall send a field engineer to participate
in the installation process. The field engineer must have the experience to
provide the field service to the same model Wind Turbine Tower Cylinder as this
contract, and shall provide the corresponding training to the Buyer’s
personnel.
7.15 The
Performance Bond shall cover the entire quality warranty term and shall be valid
till the end that any claim of damage is resolved (if any).
8 Tax
8.1 According
to the nation’s laws, rules and regulations, the Seller shall assume the
responsibility and pay the corresponding tax of this contract.
8.2 The
contract price includes tax.
9 Force
Majeure
9.1 If
either party of the contract is affected to perform by an event of Force
Majeure, any delay therefore shall not exceed a period equivalent to the period
so affected, with no effect on the contract price.
9.2 Either
party affected by the Force Majeure shall notify the other party immediately
after the incident, and shall send by regular mail to the Buyer, within 7 days
thereafter, the proof of incident issued by a qualified government agency of the
place where the incident occurs. The affected party shall make best
effort to mitigate the damage and delay so affected by the event. The affected
party, as soon as the affect by the event of Force Majeure is removed, shall
resume performing immediately.
9.3 In
the event that any delay caused by the Force Majeure exceeds 30 days, the Buyer,
upon the belief that the necessity to perform the contract no longer exists, may
terminate the contact, unless any necessity still remains, by which both parties
shall proceed to a friendly negotiation on the continuing
performance.
10 Applicable
Law and Dispute Resolution
10.1 The
law governing this contract is the law of the People’s Republic of
China.
8
10.2 Any
dispute arising out of this contract shall be settled initially through the
friendly negotiation between the parties, if failed, then submitted to the
immediate supervising authority of each party for further settlement
negotiation. Unless the aforesaid efforts fail, either party may at its option
submit the dispute for arbitration to the Beijing Arbitration Commission, or
bring an action to a People’s Court at the place where the contract is
signed.
10.3 The
arbitration decision is binding to both contracting parties.
10.4 Any
cost and expense incurred in the course of aforesaid proceedings, unless the
arbitration decision rules otherwise, shall be borne at the losing
party.
10.5 During
the arbitration, any performance apart from the arbitrated dispute shall be
continued.
11 Contract
Effectiveness, Termination and Miscellaneous
11.1 This
contract shall take effect on the day of signature and stamp by both parties,
and be terminated upon the completion of performance and payment.
11.2 This
contract is made in two original copies, one held by each contracting party, and
twelve counterparts, eight held by the Buyer and four held by the
Seller.
11.3 The
appendixes are inseparable part of this contract, with the same legal effect as
the contract.
11.4 Once
the contract takes effect, neither party could unilaterally modify the content
of this contract (including the appendixes) at its solo discretion. Any change,
modification or supplement shall be made in writing, signed by the corporate
representative (or authorized representative) of both parties upon negotiation,
once signed, shall become integrated part of the contract with the same legal
effect.
11.5 Party
B is prohibited from assigning partial or whole of its right or obligation under
this contract to any third party.
9
This page is set for signature
page.
| Buyer: |
Huaneng
Tieling Wind Power
Generation Co.
Ltd
|
Seller: |
Liaoning
Creative Wind Power
Equipment
Co., Ltd.
|
| Address: |
Pingdingbao
Zhen,
Tieling
City, Liaoning Province
|
Address: |
Maoshan
Industry Yuanqu C Qu,
Tieling
City, Liaoning Province
|
| Facsimile: |
0410-4109102
|
Facsimile: |
0410-6129933
|
| Telephone: |
0410-4109101
|
Telephone: |
0410-6129900
|
| Zip code: |
112000
|
Zip code: |
112000
|
|
Buyer:
|
|
Seller:
|
|
| (Stamp in red) | (Stamp in red) | ||
| Huaneng Tieling Wind Power Generation Co. Ltd | Liaoning Creative Wind Power Equipment Co., Ltd. | ||
| Stamp Exclusive for Contract | Stamp Exclusive for Contract | ||
|
Corporate
Representative or Authorized
Representative
|
Corporate
Representative or Authorized
Representative
|
||
| Signature: /s/ Jianjun Zhang | Signature: /s/ Zhao, Min 2010.04.09 | ||