Equistar乙烯合同.docx

CONTRACTFor the Supply ofLicense, Engineering & Technical ServicesFor100,000 metric tons per year ofEthylene-vinyl acetate/Low Density Polyethylene PlantbetweenJiangSu Sailboat Petrochemical Co. Ltd.andEquistar Chemicals, LPandTecnimont S.p.A, China, 2012TABLE OF CONTENTSTO BE ADDEDThis Contract is made in , on by and among: JiangSu Sailboat Petrochemical Co. Ltd., a company organized and existing under the laws of the Peoples Republic of China and having its registered office at room 309, Comprehensive Hall, Xuwei New District, Lianyungang City (JSPCL); and Equistar Chemicals, LP, a company organized and existing under the laws of Germany and having its registered office at 11530, Northlake Drive, Cincinnati, OH45249, Ohio, The United States of America (BASELL); and Tecnimont S.p.A., a company organized and existing under the laws of Italy and having its registered address at Via Gaetano De Castillia 6/A, 20124 Milan, Italy (TCM).WHEREASA. Basell controls technical information and intellectual property rights relating to the Lupotech A process for the production of homopolymers and has the right to grant rights and patent immunities with respect thereto.B. JSPCL wishes to receive information relating to the Lupotech A process as well as to the homopolymers manufactured thereby and wishes to acquire from BASELL the right, including an immunity under the relevant patent rights and other intellectual property right of BASELL, to use such information for designing, erecting and operating a plant in Lianyungang, China, manufacturing ethylene polymers therein and using or selling said ethylene polymers.C. BASELL is willing to disclose to JSPCL the said information and grant JSPCL the rights, including an immunity under the relevant rights of BASELL, to use the said information for designing, erecting and operating the said plant in Lianyungang, China, manufacturing PRODUCTS therein and using or selling said PRODUCTS subject to the terms of this CONTRACT.D. JSPCL has requested TCM which is willing - to perform certain engineering studies and activities in coordination with BASELL for the (extended) process design, under the terms and conditions set forth in this Contract.DEFINITIONSThe terms defined herein below shall for all purposes of this Contract have the meanings as specified.I. ACCEPTANCE shall mean the date on which one of the occurrence listed in Article 6.14 takes place.II. “BASELLs AFFILIATE” shall mean LyondellBasell Industries N.V., a company incorporated under the laws of the Netherlands and having its offices at Stationsplein 45, 3013AK Rotterdam, the Netherlands, and any company, other than BASELL, which is at the time in question directly or indirectly affiliated with LyondellBasell Industries N.V. For the purposes of this definition, a company is affiliated with LyondellBasell Industries N.V. if the latter holds, directly or indirectly, voting shares carrying more than 50 % (fifty per cent) of the votes exercisable at a general meeting (or its equivalent) of the company in question.III. BASIC DESIGN DOCUMENTS (BDD) shall mean the documents described in Appendix 6 and Attachment 6-1 of Appendix 6.IV. CONTRACT shall mean the present Contract between JSPCL, BASELL and TCM, including all the Appendices (and theirs attachments) listed below. For the purposes of the CONTRACT, in the Appendices (and relevant attachments) the term “Buyer” shall refer to JSPCL, the term “Licensor” shall refer to BASELL and the term “Seller” shall refer to TCM and/or BASELL as the case may be. Appendix 1Process DescriptionAppendix 2Design BasisAppendix 3Design Principles, Codes and StandardsAppendix 4Supply Scope of the SELLERAppendix 5 Supply Scope of the LICENSEEAppendix 6Project Schedule, Meetings, Design Division and Technical DeliverablesAppendix 7Control SystemAppendix 8Performance GuaranteeAppendix 9 Extent of Services and Treatment Condition of the Sellers Technical PersonnelAppendix 10Extent of Training and Treatment Condition for the LICENSEEs Technical PersonnelV. Appendix 11Draft of the Letter of CreditCONTRACT PLANT shall mean the industrial plant of 100 kt/y for the manufacture of PRODUCTS, based on 8,000 operating hours per year as per Appendix 2 to be implemented by JSPCL in Lianyungang, Peoples Republic of China.VI. “CONTRACT PRICE” means the total price payable to TCM and BASELL, respectively, particulars of which are specified in Article 2 of this CONTRACT.VII. “CONTRACT PRODUCT” means PRODUCTS of the grades listed in Appendix 2 and produced with the PROCESS.VIII. COMPLETION OF ERECTION shall mean the date when all major items of equipment for the CONTRACT PLANT have been installed and when the installed piping and equipment has been pressure tested and tested for correct mechanical functioning and the CONTRACT PLANT is considered by JSPCL, TCM and BASELL to be in good order.IX. “DETAILED DESIGN (DD)” shall mean the documents described in Appendix 6, Attachment 6-1 and Table 6.1.4.5 of Appendix 6.X. “DIRECT COST” shall mean the cost of procuring and furnishing to JOB SITE replacement materials (other than feedstock), equipment, spare parts procured by JSPCL and/or technical services provided by TCM necessary to improve the CONTRACT PLANT performance as required to meet the performance guarantees of Appendix 8 and in accordance with Article 6.8. XI. EFFECTIVE DATE shall have the meaning ascribed to it under Article 15.1.XII. “EXPANSION” means any increase in the capacity of the CONTRACT PLANT:a. obtained by addition of one or more reactor elements for polymerization to the CONTRACT PLANT; and/orb. obtained by replacement or modification of one or more reactor elements, ethylene compressors, relevant feeding pumps or cooling systems of the CONTRACT PLANT; and/orc. which would cause the total capacity of the CONTRACT PLANT, over a period of consecutive 8,000 hours of operation, to exceed by more than twelve per cent (12 %) the capacity specified in the definition of “CONTRACT PLANT”. XIII. IMPROVEMENT PERIOD means the period from the EFFECTIVE DATE to December 31st of the year in which falls the sixth (6th) anniversary of the EFFECTIVE DATE.XIV. “IMPROVEMENTS” shall mean new evolutionary findings and/or modifications of KNOW-HOW developed by BASELL any BASELLs AFFILIATE or a PROCESS licensee after the EFFECTIVE DATE and before the expiry of the IMPROVEMENT PERIOD, which, during such perioda. BASELL is free to disclose and authorize JSPCL to use without accounting therefore to any third party; and b. is adopted for regular use by BASELL, a BASELLs AFFILIATE or a PROCESS licensee in a plant for commercial operation of the PROCESS.However, IMPROVEMENTS shall in no case include revolutionary changes, which expression shall mean any major development or advance to KNOW-HOW and/or IMPROVEMENTS made by BASELL or BASELLs AFFILIATES after the EFFECTIVE DATE including without limitation: (i) the use of a new initiator; (ii) a major design change of the PROCESS, including without limitation the elimination, replacement or addition of a unit operation; (iii) a major change in the plant operation conditions, such as the introduction of a new monomer, a new combination of monomers, or a new additive; and/or (iv) any major changes of properties of a CONTRACT PRODUCT resulting into new applications.XV. “JOB SITE” shall mean Lianyungang, Peoples Republic of China, the place where CONTRACT PLANT is located. XVI. “KNOW-HOW” shall mean all information, including, without limitation, knowledge, experience, specifications and analytical methods, which in BASELLs opinion is necessary for the design, engineering and construction of the CONTRACT PLANT and the production of PRODUCTS by the PROCESS, to the extent such information: (i) is disclosed to JSPCL, directly or indirectly, by TCM, BASELL, a BASELLs AFFILIATE, JSPCLs CONTRACTOR or a third party so authorized by BASELL, in writing, electronically, orally, through visits, or in any other manner under any of the activities under this CONTRACT; (ii) is owned or controlled by BASELL, and/or BASELLs AFFILIATES on or before the EFFECTIVE DATE; and (iii) BASELL is free to disclose and grant JSPCL, directly or indirectly through TCM, the right to use such information without accounting therefore to third parties. XVII. “JSPCLs CONTRACTOR” shall mean the contractor selected in accordance with Article 5.1 which has signed a contract with JSPCL who is responsible for, including without limitation: engineering, procurement, construction, operation and/or maintenance of the CONTRACT PLANT.XVIII. “Party” shall mean JSPCL or TCM or BASELL and “Parties” shall mean all of them. XIX. PERFORMANCE TEST shall mean a period of 72 consecutive operating hours of performance test operation of the CONTRACT PLANT scheduled for the purpose of comparing its performance with the guarantee figures specified in Appendix 8.XX. “PROCESS” shall mean the Lupotech A process developed by BASELL and/or its predecessors, before the EFFECTIVE DATE and practiced in commercial plants for the production of PRODUCT in which ethylene and/or vinyl acetate is polymerized in a high pressure autoclave reactor. The process is further described in Appendix 1. XXI. “PATENT RIGHTS” shall mean all patents and patent applications, existing in any country of the world, to the extent that: (i) they cover KNOW-HOW and IMPROVEMENTS; (ii) they are owned by BASELL or BASELLs AFFILIATES or under which BASELL or BASELLs AFFILIATES have the right to grant licenses and immunities to others without reporting therefore to any third party; and (iii) which have a priority date before the end of the IMPROVEMENT PERIOD.XXII. “PROCESS DESIGN PACKAGE (or PDP)” shall mean the engineering package described by that name in Appendix 6 and Attachment 6-3.XXIII. “PRODUCTS” shall mean a. low density polyethylene homopolymers obtained by polymerisation of ethylene or copolymers obtained by polymerisation of ethylene with vinylacetate resulting in a vinylacetate content of up to 40% (w/w) via a continuous polymerisation process performed in a high pressure autoclave reactor; andb. mixtures of said low density polyethylene with additives such as slip additives, anti-static agents, stabilizers including antioxidants and UV-absorbers, nucleating agents, fillers, surfactants and pigments.XXIV. “START UP” means the date on which the CONTRACT PLANT has been continuously operated for at least twenty-four (24) hours at at least seventy percent (70 %) of its design capacity as per the definition of “CONTRACT PLANT”.XXV. “TECHNICAL DOCUMENTATION” shall mean PROCESS DESIGN PACKAGE (PDP), BASIC DESIGN DOCUMENTS (BDD), DETAILED DESIGN (DD) documents and all the other technical documents, technical advice and technical information containing KNOW-HOW furnished by TCM and/or BASELL in writing as stated in this CONTRACT and in Appendix 6 and its attachments.1. SUBJECT OF THE CONTRACT1.1 JSPCL agrees to accept from BASELL and BASELL is willing to furnish to JSPCL the license as set forth in Article 8.1, PROCESS DESIGN PACKAGE, training and technical services, for the CONTRACT PLANT. JSPCL agrees to accept from TCM and TCM agrees to furnish to JSPCL the TECHNICAL DOCUMENTATION other than the PDP and technical services, for the CONTRACT PLANT. The nominal annual capacity of the CONTRACT PLANT is 100k t/y of PRODUCTS on 8,000 hours per year. For the design basis of the CONTRACT PLANT see Appendix 2.1.2 TCM shall make arrangements for PROCESS DESIGN PACKAGE (PDP) review meeting with JSPCL and/or JSPCLs CONTRACTOR in BASELLs offices. TCM shall make arrangements for design liaison group of JSPCL to work in TCMs offices. TCM is committed to review the documentation of the detailed engineering design submitted by JSPCL on the basis of the BDD and detailed engineering design supplied by TCM. For details, see Appendix 6.1.3 TCM shall make arrangements with BASELL for training JSPCLs technical personnel and operators. For details, see Appendix 10.1.4 TCM and BASELL shall send their own experienced, healthy, competent technical personnel to the JOB SITE to provide technical services and instructions during the period of Erection, Commissioning and PERFORMANCE TESTS. For details, see Appendix 9, Attachment 9-1 and 9-2 of Appendix 9.2. PRICE2.1 JSPCL, shall pay the sums as specified in Article 3 to TCM and BASELL respectively and the total fixed CONTRACT PRICE amounts to U.S. Dollars (excluding Technical Service Fee). The CONTRACT PRICE shall be paid to TCM and BASELL through Irrevocable sight documentary Letter of Credit or by Telegraphic Transfer (T/T) in U.S. Dollars directly from JSPCLs Bank (which bank and form of letter of credit shall be acceptable to both Parties). The price breakdown is as follows:A. License Fee: US Dollars (“License Fee”)B. TECHNICAL DOCUMENTATION fee: US Dollars a) Fee for PROCESS DESIGN PACKAGE: (“PDP Fee”)b) Fee for BASIC DESIGN DOCUMENTS (BDD) : US Dollars;c) Fee for the DETAILED DESIGN PACKAGE : US Dollars .C. Training fee: US Dollars .D. Technical Service estimated fee: Per Diem Rate US Dollars .2.2 The CONTRACT PRICE (except Technical Service fee as stipulated in Article 2.1 D) shall be firm, fixed and covering all the expenses and charges in relation to the grant of license, provision of TECHNICAL DOCUMENTATION and technical training, regardless of whether TCM and/or BASELL spends more or less than the expected man-days of effort. 2.3 The TECHNICAL DOCUMENTATION fee shall include the cost of delivery of the documents to JSPCLs office in China as required in Article 4. 2.4 Technical Service fee under Article 2.1 D covers the cost of TCMs and BASELLs technical personnel for Technical Services during the engineering, erection, Commissioning and PERFORMANCE TESTS for services as stipulated in Appendix 9. The Technical Service fee shall be based on the per diem rate of US Dollars per man per working day which includes lodging-accommodation, but excluding travel and transportation (i.e international flights in business class, domestic flights in economy class; for avoidance of doubts up to two days spent on international travel shall be considered as working days). If TCM and/or BASELL provide additional services beyond those in Appendix 9 at request of JSPCL will pay the per diem rate, plus reasonable travel, meal and lodging expenses. The estimated number of Technical Service man-work day is indicated in Appendix 9. In case additional technical service is required caused by reasons imputable to each of TCM and/or BASELL after the commissioning and extended commissioning period, the cost of TCMs and/or BASELLs technical personnel shall be borne by TCM and/or BASELL (as applicable).In case additional technical service is required caused by reasons not imputable to TCM or BASELL or BASELLs AFFILIATE after the commissioning and extended commissioning period, the cost of TCM and/or BASELLs and/or BASELLs AFFILIATE technical personnel shall be borne by JSPCL per above rate. Actual days shall be calculated as described in Appendix 9.2.5 Unless otherwise clearly specified in this CONTRACT, all expenses (travel, accommodation, etc) for dispatching personnel for the execution of this CONTRACT by either Party shall be borne by the dispatching Party. If, at the request of JSPCL and not due to TCM or BASELLs fault, the commissioning period is split into two or more parts, JSPCL shall bear the extra reasonable travel costs for TCM and/or BASELLs personnel to leave and return to the JOB SITE. 2.6 EXPANSION FEEIn the event JSPCL has notified to BASELL its decision to exercise the right of Article 8.2 to design, erect and operate any EXPANSION or that an EXPANSION has been recorded, then JSPCL shall pay, for each EXPANSION, an additional fee calculated as follows:wherein:EF =License fee for the relevant EXPANSION (in US Dollars);NV =New Volume, i.e. new CONTRACT PLANT capacity (in Metric Tons per annum) reached by the relevant EXPANSION;PV =Previous Volume, i.e. previous CONTRACT PLANT capacity (in Metric Tons per annum) for which the relevant licensee fee has been paid by JSPCL;LF0 =original License Fee as per Article 2.1 A (in US Dollars);LV0 =original Licensed Volume, i.e. CONTRACT PLANT capacity as per the definition of “CONTRACT PLANT” (in Metric Tons per annum);Io =the USA Consumer Price Index (for all urban consumable items) published during the month of the EFFECTIVE DATE; andIn =same index for the month preceding the obligation to notify BASELL under Article 8.2.Payment of said EXPANSION fee(s) shall be made within thirty (30) days of the date on which JSPCL has the obligation to notify BASELL under Article 8.2.3. PAYMENT TERMS3.1 All the payments under this CONTRACT shall be made through respective banks by:(a) as it concerns the down payment under Articles 3.2.1, 3.3.1 and 3.4.1 through Telegraphic Transfer (T/T) in US Dollars; duly counter guaranteed by an advance payment bank guarantee released by TCM and/or Basell as the case may be ; while (b) as it concerns the remaining payments under Article 3, through a documentary sight letters of credit (each, the Letter of Credit consistent with the one attached under Appendix 11) to be issued and delivered to TCM and/or Basell within one (1) month in advance upon the expected delivery of - as the case may bei. with reference to Articles 3.2.2, 3.2.3, 3.3.3 and 3.4.3 respectively part A of PDP, part B of PDP, BDD and Detailed Design as per Appendix 6 ii. with reference to Article 3.2.4 - the first to occur among the events therein described;iii. with reference to Article 3.2.5, 3.3.4 and 3.4.4 the Acceptance da