Category Archives: Case Study

research China legal cases of lawsuit, litigtiotion, criminal defense and etc.

Agreement

协议书
甲方:XXX(天津)有限公司
乙方:天津市XX工程有限公司
关于甲方与乙方之间表面处理车间地面修复施工(Repair the floor of the ST phaseⅡ-表面车间环氧砂浆表面涂刷)一事,因质量问题,XXX年1月15日双方签订了《终止合作协议》,对施工工程进行了最终结算,并终结了双方的权利义务。
现乙方违反原《终止合作协议》的约定,仍要求甲方给予补偿。 甲方鉴于营造和谐的社会关系考虑,同意在原协议基础上另行额外补偿乙方XXXXX元 (大写:XXXX),该费用为含税价。在双方签字盖章并且乙方按照甲方要求开具增值税专用发票之后,甲方于¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬X年X月X日前支付。
同时双方一致明确如下
1、 本协议中约定的甲方给与乙方的补偿款项,具有赠与性质。
2、 就与本协议相关的事宜或者原《终止合作协议》相关事宜,乙方承诺:在甲方支付本协议款项后,不再以任何直接或者间接方式向甲方公司、关联的公司或者其所属人员提出任何异议,否则,乙方应当将本协议款项全部返还甲方。
3、 甲方与乙方之间所有的历史订单、合同及其他相关事项都已经结清,乙方与甲方之间不存在任何未尽事宜。甲方依据本协议支付款项后,乙方将不享有任何对甲方的权利要求,如有,则乙方在此明确予以放弃。
4、 乙方明白其如果继续就本协议相关事宜向甲方联系或要求,将对甲方及其人员造成时间及精力损失,可能影响其正常的生产秩序,因此乙方如违反上述第3款、第4款,向甲方公司或其人员继续就本协议相关事项提出任何要求的,乙方应无条件向甲方支付每次1000元违约金(以联系次数计)作为弥补甲方损失。
5、 上述约定中对于乙方的要求,同时适用于乙方所属的人员、代理人、以及任何与乙方合作的关联人员。
甲乙双方一致同意以上约定,愿意共同遵守。该协议在甲、乙双方签字或者盖章完毕之后生效。

甲方:XX新能源(天津)有限公司

乙方:天津XX设备安装工程有限公司
(签字盖章)

法定代表人(签字):XX

保证人:XXXX,身份证号:
保证人:XXX,身份证号:
保证人在此保证:已经完全知悉并理解本协议的上述约定内容,本协议中对于乙方的要求也适用于保证人邱宪超,如果乙方或者保证人有任何违反,保证人将承担同等连带保证责任。
手写:

签名:

Party A: XX New Energy(Tianjin) Co.ltd
Party B: Tianjin XX Mechanical Equipment Installation Engineering Co.ltd
Regarding the issue of Reparing the floor of the ST phase II , both parties had signed an Agreement of Termination on Cooperation because of the poor quality problem, in which both parties made a settlement of the construction and ended the rights and obligations of both parties. Nonetheless, Party B breached the contract and still kept asking for compensation.
In consideration of improving the harmony social relationship, Party A hereby agreed to give an additional compensation of XXX,including tax. Party A shall pay it before the date of ___ , in premise that this agreement is duly signed and the VAT invoice is made by Party B, as required by Party A.
Meanwhile, to make it definite, Parties agree as follows:
1. The compensation to be given by Party A to Party B, as agreed in this agreement, has a nature of gift.
2. With regards to the issue in this agreement or the relevant issue in the above-mentioned Agreement of Termination on Cooperation, Party B promises: Part B won’t raise any dissent to Party A, its associated company, and/or their employee, whether directly or indirectly. Or else, Party B shall refund all the payment under this Agreement to Party A.
3. All the historical PO, contract and any other relevant issue has been cleared, No pending issue exists between Party A and Party B. There will be no right owned by Party B to Party A, and furthermore Party B expressly gives up his right if there is any.
4. Party B is aware that it will cause Party B or its employee to have a loss of time and energy, moreover, possibly have a adverse effect on Party A’s normal operation, if Party B still keeps in touch or make a demand to Party A. Therefore, Party B shall unconditionally pay 1000RMB, as liquidated damage, for each time that he has a demand on anything relating to the issues as included in this Agreement, breaking the above provision 2 and 3, whatever such demand is via email, phone or etc.

Bank Gurantee

In international project, what may follow if the writing of bank guarantee varies?

Introduction

In the international project, usually, there exists much difference of the geography, culture, language and legal circumstances. The Principals, Contractors, Sub-Contractors, Suppliers and other stakeholders tend to seek for some surety from third party-the bank to secure the counterparty’s performance. Bank guarantee is typically one having the most importance.

There are varieties of bank guarantees, such as bid bond, performance bond, down payment bond, detention bond and customs bond. A subtle difference in wording may lead to great violation in its meaning and effectiveness. Below, I’ll take one cases for writings in the irrevocable and unconditional bank for example to cast the light.”

Case Review:

A company named Power Gas Company (referred to as Party A), desirous of a professional engineering company to provide design service for its project, engaged with a well-known company named Great Designer Group (referred to as Party B). As per the agreement between them, Party B “shall provide a Performance Security in the form of “performance bond” in the amount of 5% of the Subcontract Price. And it shall be guaranteed and undertaken irrevocably and unconditionally in same currency of Subcontract Price.” When the draft form of guarantee is sent to Party B for check, Party B propose that a clause should be added that: “If the performance bond is presented to the bank for payment in case of any breach, the Contractor shall be informed at least 10 days ahead”, and Party A agreed to add this clause because they thought it’s reasonable.

It turned out that Party B failed to duly fulfill its obligations in compliance with the agreement, and Party A presented the performance bond to the bank asking for the guaranteed compensation. But the bank rejected Party A’s claims on the ground that an unconditional bank guarantee shouldn’t be furnished with any conditions and would become an conditional bank guarantee if any conditions were included.

Notes:

Construction guarantees typically take one of the two forms, namely an on-demand or call guarantee, which is unconditional, and a suretyship guarantee, which is conditional. The right of the holder and the obligations of the guarantor under these two guarantee differ:

In on-demand guarantees, the guarantor takes the first primary obligations, equivalent to an indemnity to the Employer.The guarantees operate independently of the degree of performance or non-performance of the principal contract. They are effectively the equivalent of a promissory note payable on demand. But there is any conditions taken into the guarantee, then the effect of the on-demand payment and dependence may change.

Suretyship guarantees are conditional on a particular event(or events), commonly on the satisfactory performance of the contractor. These guarantees are accessory to the principal agreement, and there can be no obligation where the principal obligation they refer to is not valid or effective.