1.
This system is formulated in order to standardize the contract management of the company, prevent and control contract risks, ensure that the management has rules to follow, the contract is bound, the performance is checked, and the legitimate rights and interests of the company are safeguarded.
2. Scope of application
This system is applicable to all construction contracts, labor subcontracts, professional subcontracts, internal construction contracts and sales contracts of materials and equipment signed and performed by the company.
3. Responsibility
3. 1 The general manager of the company is responsible for the approval and signing of construction contracts, internal construction contracts, major professional subcontracts, labor subcontracts and sales contracts.
3.2 The company office (business department) is responsible for the management of various contracts of the company, and its specific responsibilities are:
3.2. 1 Responsible for issuing and managing the special seal for contract, model contract text and legal person power of attorney;
3.2.2 Be responsible for the file management of construction contracts, labor subcontracts, professional subcontracts, internal construction contracts and sales contracts;
3.2.4 Be responsible for the supervision and implementation of this system.
3.3 The Contract Management Department (Contract Administrator) is responsible for the review of various contracts, and its specific responsibilities are:
3.3. 1 Be responsible for the promotion and use of relevant national, provincial and municipal contract demonstration texts, and for the preparation and promotion of relevant company demonstration texts;
3.3.2 Be responsible for reviewing the legality, feasibility and advantages of various contracts submitted by various departments, and issue review opinions;
3.3.3 Be responsible for the negotiation of internal contracts;
3.3.4 Be responsible for supervising and inspecting the performance of construction contracts, labor subcontracts, professional subcontracts and sales contracts of materials and equipment of each branch;
3.3.5 Be responsible for filing all kinds of contracts of the company;
3.3.6 Participate in the investigation of various contract disputes of the company.
3.4 The business department of the company is responsible for the construction contract negotiation of the construction project.
3.5 The purchasing department of the company is responsible for the negotiation of materials and equipment procurement and equipment lease contract.
3.6 The project manager department is responsible for the negotiation and signing of professional subcontracting and labor subcontracting, but relevant departments of the company should participate.
3.7 The project manager (or deputy manager in charge) intends to be responsible for the specific performance of the construction project contract and the purchase and sale contract of materials and equipment. Its main responsibilities are:
3.7. 1 Be responsible for publicizing and implementing relevant laws, regulations and rules, organizing and learning various contracts of the project and being familiar with the contents, and doing a good job in contract disclosure;
3.7.2 To perform the duties stipulated in the construction project contract and supervise the progress and quality of the subcontracted projects;
3.7.3 Supervise the acceptance of materials and equipment;
3.7.4 Be responsible for the daily management of all contracts in the project, collect, record, sort out and save agreements and letters related to the contracts, handle engineering changes and visas, and submit them to the company office in time;
3.7.5 Collect and sort out claim data, provide claim basis and write claim report;
3.7.6 Supervise the performance of various contracts of the project and report to the company in time when problems are found.
4. The signing of the contract
4. 1 review of contract subject matter
Before concluding a contract, the subject qualification, credit standing ability and performance ability of the other party shall be examined, and no contract shall be signed with an organization that cannot bear civil liability independently, nor shall an economic contract be signed with a legal entity that is obviously inconsistent with the performance ability of the entity.
When signing a construction contract, we should focus on reviewing the owner's project approval documents and bidding documents to determine the owner's main qualification; Review the implementation degree of project funds and the owner's previous contract performance to determine the owner's performance ability.
When signing a subcontract, the business scope, qualification grade, management ability and actual performance specified in the contractor's business license should be emphatically reviewed.
Generally speaking, companies do not sign economic contracts with natural persons. If it is really necessary to sign an economic contract, consent shall be obtained.
4.2 Contract Form
The conclusion of a contract shall be in written form, except for simple small-scale economic affairs that require immediate delivery (delivery of goods).
"Written form" refers to contracts, supplementary agreements, official documents and data messages (including telegrams, faxes and emails). ). Unless there is an emergency or limited conditions, the company generally requires a formal contract format, and a model text (including the model text formulated by the company) should be used.
4.3 Contract Contents
4.3. 1 The construction contract, all kinds of subcontracts and internal contracts of engineering construction shall be filled in according to the model text formulated by the state or the company and the work instruction prepared by the company.
4.3.2 Contents of other contracts (mainly sales contracts)
4.3.2. 1 Name and domicile of the parties: The name and domicile of the parties specified in the title, signature and official seal of the contract shall be consistent with the credit information provided by the other party.
Subject matter of the contract 4.3.2.2: The subject matter of the contract shall be unique and accurate, and the specification, model, trademark, place of origin, grade and other contents shall be specified in the sales contract; The service contract shall specify the detailed service contents and requirements; If the subject matter of the contract cannot be described in words, the drawings shall be attached to the contract.
4.3.2.3 Quantity: The contract shall adopt the national standard unit of measurement, and generally the quantity of the subject matter shall be agreed. If the exact quantity cannot be agreed in the annual distribution contract, the method of determining the agreed quantity (such as telegram, fax, delivery note, invoice, etc.). ) be adopted.
4.3.2.4 quality: if there are national standards, departmental industry standards or enterprise standards, the code name of the adopted standards shall be agreed; Agricultural and sideline products, chemical products and other products that can be described by indicators should agree on the main indicators (except those covered by standards); Payment for samples shall specify the production mode and storage location of samples.
4.3.2.5 price or remuneration: the price or remuneration should be specified in the contract, and the actual price of the contract should be agreed in the form of discount; The payment method of the price shall be stated, such as transfer check, draft (telegraphic transfer, draft and remittance), collection, letter of credit and cash; The time limit for payment of the price or remuneration is the exact date or the number of days after a certain date.
Time limit, place and method of 4.3.2.6's performance.
The time limit of the performance should be fixed. If it is difficult to determine the specific time limit in the contract, the method of determining the time limit shall be agreed upon.
The place of performance of the contract should try to be beneficial to us. For example, sales contracts generally stipulate that the place of delivery is our warehouse or our residence; Where a specific place name is agreed, it shall be specified to the municipal district or county level;
A sales contract should generally stipulate the delivery procedure in the contract, that is, the sign of contract performance, such as the waybill and the signature of the warehouse keeper.
4.3.2.7 contract guarantee
If the other party in the contract requires a guarantee or we require the other party to provide a guarantee, we should go through the relevant procedures in accordance with the requirements of the Guarantee Law in light of the specific circumstances.
Interpretation of the contract.
All words in the contract text should be interpreted exclusively, and words that may cause ambiguity and some non-statutory special words should be interpreted in the contract.
4.3.2.9 confidentiality clause
For technology contracts and other contracts involving business information and technical information, the confidentiality commitment and the responsibility for violating the confidentiality commitment shall be stipulated.
4.3.2. 10 contract contact system
A major economic contract with a long landing period shall stipulate the contact system between the parties to the contract.
4.3.2. 1 1 liability for breach of contract
Make appropriate agreements according to the contract law and pay attention to the fairness of the contract.
Ways to resolve disputes
Disputes can be settled by arbitration or prosecution. If arbitration is selected, the name of the arbitration institution shall be clearly agreed. If both parties cannot reach an agreement on the arbitration institution, they can choose the arbitration institution in the third place.
4.4 Working Procedures for Signing a Contract
4.4. 1 signing of construction contract for construction project
4.4. 1. 1 Before the contract negotiation, the business department of the company must inspect the comprehensive situation of the employing unit in accordance with Article 4. 1 of this system. In the construction contract of the building project, the employer's tender documents, our tender, bid-winning notice, minutes, letters and other documents shall be reviewed, and the relevant departments shall be convened to seriously organize the preparatory meeting for contract negotiation and formulate the negotiation principles and plans.
4.4. 1.2 In the process of contract negotiation, projects involving large expenses such as letter of guarantee, advance payment and various deposits should be re-evaluated. Contract negotiators are responsible for making written disclosure to the contract execution unit.
4.4. 1.3 After the main terms of the contract are agreed, the business department is responsible for drafting the text and submitting it to relevant departments (Project Department, Contract Management Department, Finance Department, etc. ) conduct a joint review. If the deputy general manager (or chief economist or contract presiding officer) in charge of the company thinks that there is basically no objection, he will put forward the review opinions and submit them to the legal representative or entrusted agent of the company for approval and signature.
The project manager and marketing project manager must participate in the whole process of contract signing activities.
4.4. 1.4 After both parties sign and seal the contract, the business department is responsible for the verification and notarization procedures according to the provisions of laws and regulations or the contract.
According to the regulations, contracts that can only be signed with the approval of higher authorities must be approved before they can be signed.
4.4.2 Labor (Professional) Subcontract Signing
4.4.2. 1 Before the contract negotiation, the business department of the company must check the comprehensive situation of the subcontractor in accordance with Article 4. 1 of this system, and ask the subcontractor to provide the following original documents: valid business license of enterprise as a legal person, qualification certificate of construction enterprise, construction permit, standard certificate of engineering fee, safety qualification certificate, labor qualification certificate, identity certificate of legal representative or legal person's information.
4.4.2.2 Project Management Department will invite tenders (discuss) in enterprises that meet the requirements of subcontractors. The contract management department reviews the bidding documents, bid evaluation methods and contract conditions, and supervises the bidding work.
After the 4.4.2.3 labor service (professional) subcontracting team wins the bid, with the consent of the owner (if there is such an agreement in the construction contract), the project management department (major subcontracting contract shall be submitted to the general manager of the company for approval) will sign the subcontracting construction contract with the subcontractor. If the competent department where the project is located has a model subcontract text, it shall adopt the model text; If the local competent department does not have a model text, the model text formulated by the company shall be adopted.
After the 4.4.2.4 contract is signed, the project department shall submit the contract documents to the contract management department of the company for the record.
4.4.3 Signing of materials and equipment procurement contract
According to the requirements of the construction project contract, the procurement department negotiates with the supplier, draws up the contract terms, submits them to the project management department and the contract management department for joint review, and then the procurement department signs them, and the contract management department affixes the special seal for the contract. Major sales contracts shall be approved and signed by the general manager after joint examination.
4.4.4 Signing of other economic contracts
Other economic contracts shall be drafted by the organizer after consultation with the other party and submitted to the department (project) manager for approval or pre-examination. The contract within the authority of the department (project) manager shall be approved by the department (project) manager, and the contract manager of the department (project management department) shall affix the special seal for the contract; Internal contracts and other major economic contracts shall be signed by the department (project) manager, reviewed by the contract management department and reported to the general manager for approval and signing.
4.4.5 After the contract is formally signed, the contract text shall be kept by relevant departments, and shall be stored in the contract management department of the company together with the Contract Review Form for the record.
5. Modification and rescission of the contract
5. 1 During the performance of the contract, if it is necessary to change or terminate the contract for objective reasons, both parties shall reach a new written agreement through consultation. Before the new agreement is reached, the original contract is still valid. After receiving the notice of dissolution or change from the other party, we should give a written reply within the prescribed time limit. Economic change or dissolution shall be in written form (including letters and telegrams). If the laws and administrative regulations stipulate that the contract change shall go through the formalities of examination and approval and registration, it shall be handled in a timely manner according to law;
5.2 In any of the following circumstances, we can unilaterally terminate the contract.
5.2. 1 The contract purpose cannot be achieved due to force majeure;
5.2.2 Before the expiration of the performance period, the other party clearly indicates or indicates by its own behavior that it will not perform the principal debt;
5.2.3 The other party delays the performance of the principal debt and fails to perform it within a reasonable period after being urged;
5.2.4 The other party delays the performance of debts or commits other breach of contract, which makes it impossible to achieve the purpose of the contract;
5.2.5 Other circumstances stipulated by law.
5.3 No personnel of the Company may change or terminate the contract in the name of the Company without authorization. If it is really necessary to change or terminate the contract, the contract administrator shall find out the reasons and put forward opinions. The department or leader who approved the signing of the contract thinks that the circumstances specified in Article 5.2 of this system occur, and shall submit it to the company's legal adviser for review and issue a letter of termination of the contract; If the other party has not breached the contract, it shall reach an agreement with the other party through consultation and sign a written agreement to modify or terminate the contract according to law.
The original contract drafting department must be responsible for the contract change, review the contract change according to the contract review procedure, and handle the written contract change procedures. Do a good job of sorting, saving and filing the change documents. The distribution scope of the changed contract is the same as that of the original contract.
5.4 If the other party proposes to change the contract, the change procedure shall also be implemented according to the procedure specified in 5.3. If a claim is caused by a contract change, the contract change must be carried out at the same time as the claim. The claim agreement is the result of the contract change and is an integral part of the contract change.
5.5 For the suspension (including suspension and extension) during the performance of the contract under special circumstances, it is necessary to handle the suspension procedures in time, collect the evidence and materials that the suspension of the contract brings economic losses to the company, and investigate the other party's responsibilities in time. When the suspended contract is resumed, the resumption procedures shall be handled according to the same procedures. The resumption and termination of the contract must be notified to the contract examination and approval department or leader.
5.6 When the contract has not been performed, but it is determined that it will not be performed any more, the contract performance department shall make a record of termination, collect all documents related to the contract during the performance, make economic exchanges and project settlement, and go through the contract cancellation procedures. These materials should be handed over to the company's archives for preservation.
6. Performance of the contract
6. 1 The Company and its affiliated companies shall fully perform their contractual obligations and urge the other party to perform their obligations in time at any time.
A contract performance account shall be established for the situations that occur during the performance of the contract.
6.2 Written visas, letters, documents, telegrams, etc. Everything related to the performance of the contract is an integral part of the contract, and the contract handling personnel should arrange it in time and keep it properly. During the performance of the contract, the performance of the company shall be recorded in time and confirmed by the other party. When delivering important materials and invoices to the other party, the other party shall issue a receipt, and when performing the contract payment, the other party shall issue a receipt. In principle, the company only issues transfer checks payable within the limit, and cash payment is not allowed.
6.3 In the event of breach of contract or interference during the performance of the contract, the contract performance unit and the project management department shall find out the reasons in time, and make a claim (including breach of contract) report to the other party in a timely, reasonable and accurate manner according to the contract through obtaining evidence.
When the company receives the other party's claim (including breach of contract) report, it should study it carefully, deal with it in time, explain the reasons or file a counterclaim. Employees of the Company shall not sign and seal the claim report, statement and other confirmation documents issued by the other party without authorization. If it is really necessary to confirm, it should be approved by the company leader or the head of the department (project management department) according to the specific content.
6.4 During the performance of the contract, if the handling personnel find and have definite evidence to prove that the other party has one of the following circumstances, they should immediately stop the performance and report to the company office in writing for handling. The company office shall immediately consult the company's legal adviser and report the basic situation and the handling opinions of the legal adviser to the company leaders;
6.4. The operating condition of1has seriously deteriorated;
6.4.2 Transfer property, withdraw funds and evade debts;
6.4.3 Loss of business reputation;
6.4.4 There are other circumstances in which the ability to perform debts is lost or may be lost.
6.5 Regular confirmation of creditor's rights and debts and confirmation of major changes:
6.5. 1 During the performance of major and complicated contracts, the handling personnel shall regularly check with the other party to confirm the creditor's rights and debts of both parties;
6.5.2 In case of major events such as merger, division and reorganization of the other party, when the company or the other party's contract handlers change, they shall make timely reconciliation to confirm the effectiveness of the contract and the creditor's rights and debts of both parties.
7. Mediation, arbitration and litigation of economic contract disputes
7. 1 In case of any dispute during the performance of the contract, both parties shall, based on the principle of seeking truth from facts, first settle it through equal consultation;
7.2 If both parties to the contract fail to reach an agreement on the settlement of the dispute within a certain period of time (usually one month) or the other party has no intention to settle the dispute through consultation, the handling personnel shall promptly report to the department manager and the office of the company in writing, and the department manager and the person in charge of the office shall formulate the settlement intention and report it to the general manager or deputy general manager for decision.
If the other party is suspected of contract fraud, it should report to the company office immediately.
7.3 If the company decides to handle contract disputes by litigation or arbitration, the relevant departments shall timely sort out the contract signing, performance, disputes and negotiations into written materials and submit them together with relevant evidence to the company office, which will entrust lawyers or other professionals to handle them.
8. Daily management of the contract
8. 1 The company implements secondary contract management, and the contract management department is fully responsible for the company's contract management; The contract administrators set up by the business department, purchasing department and project management department are responsible for the contract management of their respective departments, and other departments do not have contract administrators.
8.2 The special seal for the company's contract shall be managed by a special person, one for the contract management department, one for the business department and one for the project management department, and numbered separately. The impression of the special seal for the contract shall be sent to the administrative department for industry and commerce for the record.
When signing a contract, all parties to the contract shall sign and seal it at the same time and place, and the company's riding seal shall be affixed between pages of the contract.
The blank contract and power of attorney of the company are also managed by special personnel, and business personnel are not allowed to travel with the special seal for the contract or the blank power of attorney and blank contract sealed. If the special seal for contract, stamped blank contract, power of attorney and signed contract are lost, they should report the case to the local public security organ in time and make a statement in the newspaper.
8.3 The number of originals and copies of the signed contract shall be determined as required, and the originals and copies shall be clearly distinguished. After the contract is signed, it shall be submitted to the company office for retention, and the company office shall be responsible for controlling the issuance of numbers of other functional departments or contract fulfillment departments. Except for the company office, other departments must obtain the consent of the company office in advance to copy the contract, which will be numbered uniformly and stamped with a special seal. All contract releases shall be recorded.
8.4 The signed contract and supplementary agreements related to the contract, meeting minutes, business faxes, letters, claim reports, statements, contract accounts and other materials shall be kept by the contract administrator. The contract administrator shall register the above information in a classified way, and the business personnel may sign for the relevant information from the contract administrator when settling accounts with the other party.
8.5 For projects that have completed contract performance and completion settlement, the Contract Execution Department shall submit the contract performance report to the Contract Management Department. After being audited by the Contract Management Department, it will be bound together with the contract, settlement book, all correspondence documents, economic visas, change records, completion acceptance certificates and other materials, and sent to the company's archives for filing.
8.6 Before terminating the labor relationship with the Company, the contract handlers shall hand over relevant materials, blank contracts, business cards and power of attorney, and go through relevant formalities only after being confirmed by the Company's office and relevant departments.
If the contract manager terminates the labor relationship with the company or changes due to other reasons, the company office shall notify all relevant units in writing within one week after the situation occurs.
9. Assessment and rewards and punishments
9. 1 All employees of the company and its subsidiaries shall strictly abide by this system, effectively conclude and perform contracts, and earnestly safeguard the overall interests of the company. The company office is responsible for the supervision and assessment of the implementation of this system.
9.2 Reward those who find major problems in the process of signing and performing the contract and actively take remedial measures in the process of dealing with economic disputes to avoid or recover major economic losses.
9.3 If the contract handler has any of the following circumstances, which causes losses to the company, the company will claim compensation from the responsible person according to law:
9.3. 1 Sign the contract without authorization or beyond the authority;
9.3.2 Provide blank contracts and power of attorney with special seals or official seals to others;
9.3.3 A written contract should be signed instead of a written contract.
9.4 If one of the following circumstances happens to the contract handling personnel, which causes losses to the company, the company shall recover from the relevant personnel as appropriate:
9.4. 1 The company was defrauded due to negligence;
9.4.2 The performance of the contract by the company has not been confirmed by the other party;
9.4.3 Loss of important evidence;
9.4.4 After a dispute occurs, it is concealed or settled privately, or the report is evaded, thus delaying the opportunity;
9.4.5 Loss of special seal for contract, blank contract with seal and power of attorney is not reported in time;
9.4.6 Failing to perform the prescribed procedures and signing the confirmation letter and claim report issued by the other party, thus causing losses to the company;
9.4.7 Other behaviors that violate the company's relevant systems.
9.5 Employees of the Company who violate the criminal law during the signing and performance of the contract and constitute a crime will be handed over to judicial organs for legal treatment.