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China Purchase and Sales Contract / Agreement

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SALES AND PURCHASE CONTRACT

CONTRACT NUMBER    :

SELLER:

BUYER:

DATE:

I. OBJECT

1.1    The seller herewith will sell and the buyer herewith will purchase in accordance with the terms, conditions and specifications and the quality described in this contract (hereinafter called “the Goods”).

1.2    The specification of the goods is provided in Appendix No. 2 hereto

II. DELIVERY BASIS AND TERMS

2.1    The seller shall deliver the goods under deliveries conditions CIF destination in accordance with INCOTERMS-2000.
2.2    Loading port: shall be defined in the deliveries Schedule in Appendix 3, or as designated by the Seller.
2.3    Country of Export: As per Delivery Schedule Appendix 3, or as designated by Seller and Country of Import to be designated by the Buyer.
2.4    The named ports of destination: for thirty (30) days prior to the beginning of shipment of each vessel, the Buyer will inform the Seller about port (ports) destination, if different, these being any known major Country Port. If there is a change in destination, this must be done prior to scheduling of the vessel. A second alternative port must be specified for delivery in the event there are problems in getting a ship berth for unloading at the preferred delivery port.

III. QUANTITY AND QUALITY OF GOODS

3.1    The unit of measurement in this contract is metric tons of weight (MTW). Months are calendar months according to the Gregorian calendar.
3.2    The total quantity of the goods to be delivered is ****** MT (+/-5%), deliverable to port (s) stated in Appendix 3 in (evenly from May 08 to  ****) consecutive months.
3.3    The quantity, quality and weight of goods will be confirmed on a certificate issued by the independent international survey company “SGS’’ (Societe Générale de Surveillance).  Any other independent international survey/inspection company to be used will be at the buyer’s expense.
3.4    The quality of the goods will be confirmed by a certificate issued by the independent international survey company "SGS (Societe Générale de Surveillance)" which shall be binding on both parties in all respects, including but not limited to the payment of invoices, replacement of faulty goods.  The correspondent of the same independent international survey/inspection company can be used at the request of the buyer will be at the buyer’s expense, and recognized as documents required for payment.

IV. PRICE AND TOTAL AMOUNT OF CONTRACT

4.1    The Buyer shall pay the Seller in United States Dollars (USD).
4.2    The price of the goods is USD ** CIF per MTW  Cost Insurance and Freight included as well the at the port of destination. This price is   subject to the payment instrument stated in article VII below.
4.3    The price of goods includes all costs incurred by Seller up to and including delivery, basis CIF, except where the contract specifically provides for a cost to be borne by the Buyer, port demurrage charges, tariffs, and export/import fees. The unit price is fixed and firm for any quantity not exceeding the maximum permitted under the contract either delivered or stored.  If vessels are delayed by the buyers (failure to unload in a timely manner) on or before expiry of the period stated in sub-clause 5.1, or such extended period as expressly provided in this contract or agreed by mutual written understanding.
4.4    The vessel shipment value of the delivery of 12.500 MT of the goods ******US$ (+/- 5%). Monthly delivery program is  of *vessels of 12.500 MT, in *months, and  *   vessels of      12.500 MT       in * months  
4.5    The total amount of the contract is US$ ******   United States Dollars (+/- 5%).

V. DELIVERY TERMS AND PARTIES OBLIGATIONS

5.1    The Seller shall deliver the total quantity of goods in accordance with the Deliveries Schedule, in Appendix No.3 hereto.
5.2    The Seller shall start the deliveries of the consignment in accordance with the Procedure and Terms, Appendix No.1 hereto.
5.3    All provisions included in the Deliveries Schedule will be observed by both the Buyer and the Seller and the breaches in the provisions will be subject to penalties as per provisions under clauses 11.0 & 12.0 respectively.
5.4    The Parties may agree upon the extension of the delivery period.  In this event, the Party responsible for the delays (Seller in delivery or Buyer in unloading) will have to bear the costs for the extension of the validity of the payment instrument and any other costs incurred due to delay.

VI. DELIVERY ACCEPTANCE OF GOODS

6.1    In accordance with INCOTERMS 2000, and conditions of delivery CIF, the Seller is obligated to pay charges relating to cost, insurance & freight, however, risk of loss or damage of the goods and any additional charges arising after the transfer of the goods over the hand-rail of a vessel in the port of unloading shall pass from Seller to the Buyer.
6.2    Title for the goods will pass from Seller to the Buyer upon    clearance of funds into the Seller's account.
6.3    The quantity of goods stated in the Bill of Lading shall be conclusive evidence of the quantity of goods delivered.

6.4    No claim(s) against quality or quantity received thirty (30) days following receipt by Buyers of SGS quality or quantity report as appropriate will be taken into consideration.

VII. PAYMENT TERMS AND CONDITIONS

7.1    Payment will be in US$ and guarantee by an Irrevocable Transferable Automatically Revolving Letter of Credit for an amount of US$ ******  (+/- 5%) covering the 12,500 MT value payable at sight 100% against shipping documents, at loading port. If it is the case the buyer must fill the confirming bank in Appendix 4.Any deviation from the above payment terms is subject to acceptance by the seller. No responsibility can be claimed by the buyer in the event that acceptance of the payment instruments are refused
7.2    The Seller reserves the right not to load the vessel if the payment instrument does not meet requirement of the contract.  Buyer shall arrange for its bank (one of the top 50 rated banks) to provide the Seller a copy of the payments instruments by SWIFT, within 5 banking days from the signing of the contract.
7.3    In the event that the buyer fails to issue the payment instrument in compliance with this clause then  payment for full contract value shall be made 100% at site of demand upon the buyer without protest as a contract breach.
7.4    Payment instrument shall be payable by swift transfer payment by issuing bank upon presentation of the seller’s sight draft(s) for the amount of hundred percent (100%) of invoice value of the shipment, accompanied by the Ocean Bill Of Lading.  The weight certificate issued by S.G.S, surveyor of ship’s draft, shall be the basis for the seller’s invoice. The said payment instruments shall accept third party documents except the invoice and the draft.
7.5    All bank charges related to the issuance of the payment instruments are for the Buyer’s account.  Bank charges related to the negotiation of the document are for the Seller’s account.
7.6    Any extension of the validity of the document will be borne by the side in fault from the extension.
7.7    Spelling and typographical errors and differences of such nature between bank issued and beneficiary issued documents shall not be deemed discrepancies provided that the intent of the writer is clear from the context and in such case only UCP500 regulations shall apply at any time.

VIII.  PERFORMANCE BOND – PROOF OF PRODUCT

8.1    Within 5 banking days from the receipt of the payment instrument the seller’s bank will issue a Proof of Product under the for of Swift MT799 and Performance Bond in the form of conditional Letter of Credit equal to 2% of the face value of the Buyer’s Letter of Credit.
8.2    In the event of non-delivery of the goods within 45 calendar days the amount of the Performance Bond opened shall be remitted to the Buyer upon written notification by the Buyer to the seller’s bank stating the seller’s cargo has failed to meet the terms of the contract, thereby causing the buyer to invoke the payment of the 2% Performance Bond in recompense.

IX. DOCUMENTS REQUIRED FOR PAYMENT

9.1    The Seller shall provide with each consignment a full set (6/6) Clean on Board Ocean Bill of Lading signed by an authorized representative of shipping ocean lines, signed by the Master and showing vessels stamp and showing “CLEAN ON BOARD” and Freight Prepaid,  following Master’s remarks are acceptable: Wet before shipment: Loaded from open area: Atmospherically rusty within 21 (twenty-one) days from date of payment. Provided port of discharge is the same and segregation of separate consignments is the responsibility of Buyer after unloading. Each full vessel may be comprised of multiple consignments representing separate orders.
9.2    Commercial invoice issued by Seller: 6 originals and 6 original copies showing Contract Number, description of Goods, pieces of bundles of goods, unit price, total amount, gross/net weights of the goods.
9.3    Original and three (3) copies of SGS quality and quantity report.
9.4    Three (3) original and three (3) copies of certificate of origin
9.5    Insurance certificate listing Buyer as beneficiary covering 110% of the value of the cargo covering all possible events that could result in delay of delivery, loss or depreciation of quantity, quality of the goods.
9.6    Charter party agreement covering the shipment.

X. PROVISION OF DOCUMENTS

10.1    All of the documents including the B/L, invoice, packing list, original certificate of origin, will be faxed to the Buyer within 5 (five) days after B/L date.
10.2    Seller shall provide at seller’s expense Standard Quality Certificate issued by SGS in clear, clean faxed or e-mailed version, certifying that the shipment meets the quality requirements of the Contract. (Hard copies will follow with-in seven (7) banking days, and are required as part of the documentation required for payment.) The chemical analysis data is included in the Standard SGS Quality Certificate and this chemical analysis is a required document for payment.  At buyer’s request, Seller shall arrange for all other independent international survey/inspection companies at Buyer’s expense, excluding the port of unloading. Quality Certificates from other than SGS are not recognized as documents required for payment.
10.3    Quantity assay issued by SGS in clear, clean, faxed or e-mailed version, showing the quantity of the goods loaded on board vessel. (Hard copies will follow with-in seven (7) banking days, and is required as part of the documentation required for payment.)  If CIQ/CCIC is required by the Buyer, then Seller shall arrange for all Quantity and Quality inspections at Seller’s expense from CIQ/CCIC except at the port of unloading.
10.4    Original certificate of origin issued by Chamber of Commerce and Industry of the country of export: 3 originals and 3 original copies.

XI. FORCE MAJEURE

11.1    Both sides in this contract will be exonerated from their obligation in case of Force Majeure event.
11.2    Force Majeure is understood as per provisions under ICC500 and means any event such as fire, explosions, hurricanes, floods, earthquakes and similar natural calamities, wars, epidemics, military operations, terrorism, riots, revolts, strikes, industrial unrest, government embargoes, or other unforeseeable actions occurring after the conclusion of this contract and outside the sides reasonable control and which cannot be avoided by the reasonable diligence that could delay or prevent the performance of either sides obligations in this contract.
11.3    The party to this contract whose performance of this contract is prevented by a Force Majeure event must notify the other party within 7 (seven) days of the effective date of occurrence, which notice is to be confirmed by a certificate issued by the local Chamber of Commerce and Industry, including particulars of the event and expected duration. Failure to submit such a notification will prevent the party’s exoneration from contractual obligations under Force Majeure event makes such notice impossible.
11.4    The performance of either party’s obligations will be in such a case postponed with the period of the existence of the Force Majeure event plus a reasonable period to remobilizing production and shipping. No penalty shall be payable for the duration of this delay.
11.5    Should the delay caused by a Force Majeure event last for more than I (one) month the sides will attempt to agree measures to allow contract to continue. Should such an agreement not be reached within 30 (thirty) days from the date of certified Force Majeure event, the sides are entitled to terminate the contract.
11.6    The Force Majeure event does not exonerate the Buyer from paying for the goods already delivered under documents in section 9 Bill of Lading.

XII. SELLER LIABILITY

12.1    Goods shall be considered in “full quantity” if within tolerance provided under Section III and as per deliveries schedule. “Date of delivery” shall be the date on the Bill of Lading.
12.2     Seller attests to have all export licenses to deliver the goods.
12.3    Seller has the obligation to make consignment complete and deliver the full quantity and will only be paid for what is delivered at the time.
12.4    Failure to deliver full quantity within extended period will entail penalties at the rate of 0.3% (point three percent) pro rata temporize of the value of the undelivered goods. The total value of the penalties cannot exceed 5% (five percent) of the value of the undelivered goods at which time full breach is declared automatically.
12.5    Should the Buyer decide, at any time during the period of delivery, to take only a partial delivery rather than wait for the full quantity (if the quantity is not already available in port and ready for loading) then the Seller will not be liable for liquidated damages?

XIII. BUYER LIABILITY

13.1    Any sums which the Buyer is liable as penalties, for which no provisions are made in this contract, are made against the invoice issued by Seller and by a top 50 rated bank transfer within maximum ten (10) banking days as for the submitted invoice date.
13.2     Buyer attests to have all import licenses to unload the goods at ports of discharge. Also the buyer attests to have agents in each ports of discharge managing logistic part on behalf of Buyer.
13.3    “Scheduled date of Arrival” means date when the vessel should be alongside quay and available to take delivery of the Goods as per both Seller and Buyer mutual notifications and provisions in Appendix No.3 hereto.
13.4    Should the vessel not arrive within 15 (fifteen) calendar days as from scheduled/notified date as a result of delays by the buyer at the unload port, the Buyer will pay the Seller penalties at the daily rate of 0.3% (point three percent) pro rata temporize of the value of undelivered goods but the total amount should not exceed 5% (five percent) of their value.
13.5    The payments of the storage costs in port have no connection with the payment penalties, which are paid separately to the Seller.
13.6    To make payment in the target dates for consignment, payment shall be effected by within five (5) banking days after receipt by the advising bank of all documents required under clause 9.

XIV. LAW AND ARBITRATION

14.1    The contract is subject to English Law, ICC rules are to be observed under existing CIGS guidelines and UCC Law will supersede over ICC if in conflict.
14.2    The Seller and Buyer will try to settle all disputes amicably. Either party may serve notice on the other requiring any dispute to be settled within 30 (thirty) days after such notice and, if not settled to refer it to arbitration in accordance with this contract unless breech of payment occurs by the buyer or failure to post the Bank Guarantee.
14.3    The arbitration will be heard by one or more arbitrators appointed mutual agreement of the parties and in accordance with the French Rules.  The seat of arbitration shall be Paris - France. The award shall be enforceable in any country, and a Letter Rogatory shall be deemed accepted without contest or protest.
14.4    Should payment not be received when scheduled under this contract and Seller declare breech of contract then Summary Judgment under the Laws of England shall apply and be deemed automatic for the full contract value and damages claimed therein under UCC law with the authority therein to recover those costs in any country.

XV. CONTRACT TERMINATION

15.1    Either party may terminate the contract should the other side refuse performance of a substantive contractual obligation, but excluding refusal cause by a Force Majeure event.
15.2    Notification of termination is to occur within thirty (30) calendar days following non-performance of contractual obligations.
15.3    No termination is permitted should any of the sides excuse their obligations within the stated thirty (30) days from the notification date.

XVI. ASSIGNMENT

16.1    Any of the sides is allowed to assign the contract or payment instruments in order to secure the performance of its obligations.
16.2    Any assignee or legal successor to either party shall assume all obligations and benefits of the contract
16.3    Assignment is permitted under mandate issued and agreed jointly by both the Seller and the Buyer.

XVII. GENERAL PROVISIONS

17.1    Amendments to the present contract shall be valid only if agreed in writing and signed by duly authorized representatives of both sides.
17.2    Correspondence in the course of the ordinary administration of the contract such as but not limited to notification of anticipated delivery dates might be sent by fax, any electronic means or any form of mail.  Notices of suspension, termination or to invoke arbitration shall be sent as an advance fax with an original by courier service and shall be deemed delivered on the evidenced date of the facsimile.
17.3    The language of the contract and the correspondence, notices, invoices, certificates, Bills of Lading shall be English.
17.4    The contract comprises the present documents, Appendices and Addendums.
17.5    This contract supersedes all prior negotiations, representations and agreements and it is the sole agreement between the sides for the sale and purchase of the goods.
17.6    The Buyer acknowledges the Seller is (Canadian for example) Corporation who has collateral business agreements with other countries in the performance of this contract including, the quantity and quality of the rate of delivery of goods, the shipment methods deployed in the performance of the contract, the financial exchange of the terms within the contract and subject to the laws of those countries at all times.

XIII. EFFECTIVE DATE

18.1    This contract shall come into effect when the Buyer and Seller have both initialed and signed the present document and its appendices.

XIX. CONFIDENTIALITY AGREEMENT

19.1    Seller, his Mandate and Buyer and his mandate shall treat information provided by the other party on a strictly private and confidential basis. Seller and Buyer shall take all necessary steps to prevent the others confidential information from being misused or disclosed or made public to any third party except as needed to successfully complete the Contract or to avoid conflicting claims (and except as may be required in accordance with the applicable law).
19.2    Both Seller and Buyer shall not use the confidential information provided the Seller in such a way as to:
(a) Circumvent the Seller or his mandate in the commercial dealings with any and all suppliers under the contract, or
(b) Knowingly do anything to cause the Seller or his Mandate to lose any fees or commissions that are due or may become due under the Seller agreement with the suppliers under the Contract, if any, or
(c) Do anything to circumvent the Seller or his Mandate in such a way as to put Seller or Mandate at a commercial disadvantage with the suppliers or countries under this Contract.
19.3    The Seller his Mandate and the Buyer and his mandate shall keep each other fully informed about the progress of all current and future contract negotiations and about the performance of the contract.
19.4    The obligation of confidentiality of the Sellers, his Mandate and Buyer shall remain in force for a period of 5 (five) years from the date hereof.
19.5    Any breach of these provisions will entail payment of damages to the other party.

XX. NON-CIRCUMVENTION AGREEMENT

20.1    The Parties shall not in any manner whatsoever solicit nor accept business from sources or their affiliates that are made available by the other party to this agreement, at any time, without the prior written permission of the Party which made the source available.
20.2    The Parties shall maintain complete confidentiality regarding each others business sources or their identities and shall disclose such only to named Parties pursuant to express written permission of the Party that made the source available.
20.3    The Parties shall not in any way whatsoever circumvent or attempt to circumvent each other or any Party involved in any of the transactions the Parties are desiring, entering and pursuing into and to the best of their ability and assure each other that the original transaction codes established will not be altered or changed.
20.4    The parties recognize the contract to be an exclusive and valuable contract of the respective Party and they shall not enter into direct negotiations with such contracts revealed by the other party.
20.5    Neither Party shall avoid payment of due fees, commissions and other remuneration in any way whatsoever.
20.6    In the event of circumvention by any party whether directly or indirectly, the circumvented Party shall be entitled to legal monetary penalty as damages, equal to the maximum amount it should make from such transaction and any and all expenses including but not limited to legal fees that would be involved in the recovery of said damages. The circumventing Party renounces to any right that he may have to claim a reduction of this amount.
20.7    All considerations, benefits and commissions received as a result of the contraction of the Parties relating to any of the transactions will be allocated as mutually agreed to.
20.8    The Buyer irrevocably binds itself to provide any and all documentation requested by the Seller as stated herein, immediately and without delay, in connection with the sale/purchase of the aforementioned goods
20.9    The Seller irrevocably binds itself to provide any and all documentation requested by the Buyer as stated herein, immediately and without delay, in connection with the sale/purchase of the aforementioned goods.
The ICC 1993 revision, publication 500 shall apply to this contract as well as INCOTERMS-2000 as published by the International Chamber of Commerce.

 
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