澳大利亚力拓公司铁矿石买卖合同 (下部分 中英文) RIO TINTO CONTRACT OF IRON ORE TRADE 7. 整体 7.1.1. FOBST base price per DMT of Fe unit for the Product (hereinafter called Base Price) to be delivered in each Contract Year under this Contract澳大利亚力拓公司铁矿石买卖合同 (下部分 中英文)
RIO TINTO CONTRACT OF IRON ORE TRADE
7.1.1. FOBST base price per DMT of Fe unit for the Product (hereinafter called “Base Price”) to be delivered in each Contract Year under this Contract shall be determined in accordance with this Section.
7.1.2. [For Contract Year 2009, FOBST provisional Base Price per DMT of Fe unit for the Product shall be US¢  / dmtu ( United States cents per dry metric ton unit) (hereinafter called the “Provisional Price”) until the 2009 Vale’s Southern System Standard Sinter Fines Benchmark Price for the Asian market (hereinafter called the “2009 Benchmark Price”) is settled by and between Vale and Chinese Steel Mills.]
﹝2009合同年，FOBST以产品的铁单位的DMT所暂订的价格应该是美元¢  / dmtu （是每吨干重量单位的美分）（本文之后称作暂定价格），一直到淡水河谷公司和中国钢厂，制定出2009的河谷南方系统中的亚洲市场标准烧结粉指标价（本文之后称作2009指标价）。
7.1.3. Once the 2009 Benchmark Price is settled, the Provisional Price shall be adjusted and applied retroactively, either upward or downward, according to the difference between the 2009 Benchmark Price and the Provisional Price. All the amounts paid by Buyer to Seller based on the Provisional Price shall be adjusted not later than 30 days after the settlement of the 2009 Benchmark Price.
7.1.4. For subsequent Contract Years, Base Price shall be Vale’s Southern System Standard Sinter Fines Benchmark Price for the Asian market for that particular Contract Year (hereinafter called as the “Benchmark Price”), which will have been adjusted up or down from the 2009 Benchmark Price.
7.1.5. The price Buyer shall pay to Seller for the Product set forth in this Section shall be calculated in US$ for each shipment.
7.1.6. FOBST price per DMT for Payment for each shipment shall be calculated based on Base Price multiplied by the actual Fe content of the respective shipment as determined in the Certificate of Analysis issued at Loading Port, pursuant to Section above, fractions pro-rata, subject to adjustment pursuant to Section above.
7.1.7. If the Benchmark Price has not been determined before the first shipment of the Product in any Contract Year, the Base Price for the previous Contract Year shall temporarily apply to the Product delivered during the relevant Contract Year up to the 30th day of September of the relevant Contract Year or up to the date the Benchmark Price for the relevant Contract Year is determined, whichever occurs earlier. If the Benchmark Price is not determined prior to the 30th day of September of the relevant Contract Year, the Provisional Price applicable to quantity supplied thereafter shall be negotiated in good faith and determined by the Parties hereto. On reaching a formal agreement on Base Price for the relevant Contract Year, such Base Price shall apply retroactively from the commencement of the relevant Contract Year.
7.2.1. Seller shall issue an invoice in respect of the relevant shipment (“Invoice”) in an amount corresponding to 100% FOBST cargo value. The Invoice shall be issued based on:
(i) The applicable Base Price for the shipment as set forth in Section ;
(ii) The weight of the relevant shipment determined pursuant to the Certificate of Weight issued at the Loading Port, pursuant to Section ; and
(iii) The iron content of the Product determined pursuant to the Certificate of analysis issued at the Loading Port, pursuant to Section .
7.2.2. Upon completion of loading of each shipment of Product, Seller shall send the following documents, by internationally recognized express courier, to the negotiating bank and Buyer, within 21 (twenty one) days after the date of departure of the relevant shipment of Product from the Loading Port:
(i) A full set (3/3) of negotiable clean on board Bills of Lading (the “B/L”), made out to order, blank endorsed, notifying party in blank and marked “freight payable as per Charter Party”, showing the weight in WMT;
(ii) The Invoice at sight based on 100% (one hundred percent) of the FOBST value and weight of the cargo at the Loading Port, indicating the name of the carrying vessel;
(iii) Certificate of Analysis issued pursuant to Section , showing actual results of chemical and physical analysis in 2 (two) originals and 3 (three) copies;
(iv) Certificate of Weight issued at the Loading Port pursuant to Section in 2 (two) originals and 3 (three) copies;
(v) Certificate of Origin in three copies issued by Australian Chamber of Commerce or Industry’s Federation Agency or other authorized local Authority in 1 (one) original and 3 (three) copies.
7.2.3. Within 5 (five) Business Days from B/L date Seller shall provide to Buyer via e-mail the shipment details.
7.2.4. Within 10 (ten) Business Days from B/L date Seller shall provide to Buyer via e-mail the dispatch details of the original documentation and the copies of all the documentation set forth in this Section.
7.2.5. [The relevant Invoice shall be payable upon presentation of the clean documentation listed in Section above by way of deduction of the respective amount from the LC applicable for the respective shipment.]
7.3.1. Unless otherwise agreed by the Parties, any amount overpaid or underpaid in respect of the Relevant Shipment determined after the adjustments on the basis of final certificates of weight and analysis at the Discharging Port shall be reimbursed to Buyer by Seller or to Seller by Buyer, as the case may be, as soon as possible but no later than 5 (five) Business Days after the date of receipt of documents evidencing such overpayment or underpayment, without prejudice to Sections and .
7.4.1. The relevant Party shall provide the other Party with a notice in writing that it has not received payment on the due date as soon as reasonably practicable thereafter. Notwithstanding the delivery of any such notice, the defaulting Party shall be deemed to be in default as of the date on which such Party failed to make the respective payment.
7.4.2. If Buyer fails to pay to Seller any amounts which are due and payable, then without prejudice to any other rights and remedies of Seller arising under this Contract or at law, and provided Seller has given not less than [fifteen (15)] days prior notice of suspension to Buyer, Seller may suspend subsequent deliveries of Product to Buyer until such amount has been paid; [provided, however, that if Buyer, or any person on Buyer’s behalf, provides an irrevocable letter of credit issued by a financial institution reasonably acceptable to Seller or such other suitable security acceptable to Seller at its sole discretion for payment of any undelivered Product, pursuant to Buyer’s order, Seller shall be obliged to deliver such shipment.]
7.5.1. If any Party disputes any payment under this Contract, such Party shall pay the undisputed amount on the due date therefore and as soon as reasonably practicable give the other Party reasonable details in writing of the reason for disputing the payment.
7.5.2. Any amounts payable following resolution of such dispute shall be paid within seven (7) Business Days by the defaulting Party and shall include interest and penalties calculated pursuant to Section .
7.6.1. All payments made under this Contract will be made in United States Dollars and in immediately available funds by wire transfer.
7.7.1. For any amount properly due from one Party to the other Party pursuant to this Contract and remaining unpaid after the due date for such payment, the defaulting Party shall pay (i) a fine equivalent to five percent (5%) of the outstanding amount and (ii) interest on the outstanding amount. Such interest shall be calculated at the rate of “LIBOR”, which means the floating rate per annum for thirty (30) days in United States Dollars shown on the Telerate page 3750 as “British Bankers Association Interest Settlement Rate” of one London banking day prior to the due date. Such due but unpaid amount shall accrue interest from and including the date on which the payment in question was due until, but excluding, the date that it is received by the Party entitled to it. Interest at the LIBOR Rate shall accrue on a day-to-day basis and shall be compounded monthly.
7.8.1. All sums payable by any Party to the other Party under this Contract shall be made without any deduction or withholding for or on account of any Tax. If such deduction or withholding is required by any law to be made by any Party, the amount of the payment due from such Party shall be increased to an amount which (after making such deduction or withholding) leaves an amount equal to the payment which would have been due if no deduction or withholding had been required.
8.1.1. Title to and risk in the Product delivered under this Contract shall be transferred from Seller to Buyer as the Product crosses Buyer’s vessel’s rail at the Loading Port, provided that all Product supplied in accordance with this Contract will be free from liens, charges, security interest, encumbrances and adverse claims of any and every kind, except for those created by Buyer.
9.1.1. For the purpose of this Contract, “Force Majeure Event” shall mean an event, condition or circumstance and the effects thereof which is beyond the reasonable control and without the fault or negligence of the Party claiming Force Majeure, which, despite all reasonable efforts of the Party claiming Force Majeure to prevent it or mitigate its effects, prevents or causes a delay or disruption in the performance of any obligation imposed under this Contract. Subject to the foregoing, Force Majeure Event shall include:
(i) Unusually severe weather conditions (including floods, tidal waves, lightning, cyclones, typhoons, whirlwinds, tempests, storms, droughts and other extreme weather conditions);
(ii) Epidemics, plagues or quarantines;
(iii) Any war (whether declared or not), hostilities, acts of force by a foreign nation, or embargoes;
(iv) Blockades, riots, sabotage, revolutions, insurrections, rebellions, public disorder or acts of terrorists;
(v) Accidents, earthquakes, volcanic activity, sabotage, fire or explosions;
(ix) Closure of the Loading Port or the means of access thereto by any act or omission of any Governmental Authority;
(x) Loss, serious accidental damage to or inoperability of Seller’s Mine (except to the extent caused by the negligence or willful misconduct of Seller or any person acting on behalf of Seller at Seller’s Mine); and
(xi) Strike or work stoppage.
9.1.2. Force Majeure Event shall not include: 不可抗力事件不应该包括：
(i) Infrastructure and equipment failures due to ordinary wear and tear or defects in design or defects in material quality or installation of the plant;
(ii) Lack of available funds, financial insolvency or financial distress of the Party seeking to claim Force Majeure;
(iii) Events caused by fluctuating economic conditions in local, national and global markets (including fluctuation of the price of the Product); and
(iv) Events or circumstances caused by an act or omission by a Party, its affiliates or its contractors not in compliance with any law.
9.2.1. Each Party shall notify the other in writing of any event, condition or circumstance reasonably expected to result in the failure to comply with any or all of its obligations under this Contract as a result of an existing or prospective Force Majeure Event. Such notice shall be sent as soon as reasonably possible but no later than fifteen (15) days after becoming aware of such event, condition or circumstance. The Party giving such notice (“Affected Party”) shall:
(a) identify the nature and the expected duration of the Force Majeure Event, the extent to which such Force Majeure Event affects its obligations and the expected period following the cessation of such Force Majeure Event before it is able to comply in full with its obligations hereunder;
(b) if relevant, specify the tonnage and sources of iron ore that may be affected by such Force Majeure Event;
(c) provide all such further information as the other Party may reasonably require; and
(d) take at its own cost, all steps reasonably required (taking into account the nature and economic consequences of such Force Majeure Event and the cost of the remedy) to cure the effects of such Force Majeure Event.
9.2.2. The Affected Party shall monitor and review the likely duration of the period of the Force Majeure Event and shall notify the other Party immediately upon becoming aware that the period of Force Majeure Event may be shorter or longer than that previously notified to that other Party.
9.2.3. If the Parties are unable in good faith to agree whether Force Majeure Event has occurred, the burden of proof as to whether a Force Majeure Event has occurred shall be on the Party claiming the Force Majeure Event.
9.3.1. If a Party is unable to perform, partial or totally, any obligation set forth herein due to a Force Majeure Event and gives the other Party notice in accordance with Section , the relevant obligations of the Affected Party shall be suspended, delayed or excused to the extent of such Force Majeure Event.
9.3.2. Suspension of any obligations pursuant to Section 9.3.1 will not affect any rights or obligations which have accrued prior to the occurrence of the applicable Force Majeure Event, including obligations of Buyer to make payment for deliveries of Product delivered in accordance with this Contract prior to the occurrence of the Force Majeure Event.
10.1.1. A Party which is not in default may, by notice in writing to the Party in default, terminate this Contract if any of the following events of default occurs:
(a) the other Party defaults in the payment of undisputed amounts due and payable under this Contract exceeding in the aggregate US$5,000,000.- and such default continues unremedied after the expiry of fifteen (15) days following the date on which the non-defaulting Party shall have given notice of the default to the defaulting Party;
(b) dissolution or liquidation of the other Party, except for voluntary dissolution or liquidation as part of a corporate restructuring, provided that the resulting entity has assumed any and all obligations of such other Party;
(c) bankruptcy or judicial or extra-judicial reorganization of the other Party pursuant to applicable bankruptcy law; or
(d) the other Party commits any material breach of any of its material obligations under this Contract (other than those specifically described in item (a) of this Section), including failure by Seller to supply the Annual Quantities in a given Contract Year and failure by Buyer to purchase the Annual Quantities in a given Contract Year, except if such breach is remedied within thirty (30) days from the receipt by the defaulting Party of notice sent by the non-defaulting Party giving details of the breach and requiring the cure of such breach.
10.2.1. Buyer may terminate this Contract by giving thirty (30) days prior notice to Seller if a Force Majeure Event affecting all or substantially all of either Party’s obligations continues unremedied for more than six (6) months immediately preceding the date of giving such notice.
10.2.2. Seller may terminate this Contract by giving thirty (30) days prior notice to Buyer if a Force Majeure Event affecting all or substantially all of either Party’s obligations continues unremedied for more than six (6) months immediately preceding the date of giving such notice.
10.3.1. Neither Party may terminate this Contract without cause.
11.1.1. The Parties shall not be liable for indirect, special or consequential losses, including, but not limited to, any loss of production, loss of business opportunity, loss of revenue or loss of profits in the normal course of business, incurred or suffered by the other Party as a result of the performance or non-performance of the obligations provided for in this Contract or as a result of any law, rule or decision by Australian or Chinese authorities, irrespective of the causes thereof, including fault or negligence.
11.1.2. The Parties agree that the regular termination of this Contract shall also not imply any kind of liability regarding consequential damages.
12.1.1. Neither Party is entitled to assign or transfer this Contract or any part thereof or any benefit, interest, right or cause of action arising under this Contract without the prior consent in writing of the other Party.
12.2.1. Buyer hereby agrees and acknowledges that the Product Quantities sold by Seller to Buyer pursuant to this Contract are for the exclusive use of Buyer and/or its Affiliates and that, in any event, the resale or the assignment, for any purpose whatsoever, of any Product Quantities by Buyer or its Affiliates to any third party is strictly prohibited, except if previously and expressly permitted in writing by Seller.
13. DISPUTE SETTLEMENT 争端解决
13.1 General 总则
13.1.1. All disputes between the Parties related to any matter or disagreement arising from this Contract (“Dispute”) shall be referred by the aggrieved Party to the other Party by giving notice in accordance with Section (“Dispute Notice”). The Parties shall, within the period of thirty (30) calendar days as from the receipt of the Dispute Notice, endeavor to come, in good faith, to an understanding on such matter or disagreement.
13.1.2. If a Dispute is not resolved according to Section , each Party shall ensure that senior executive officers of the Parties meet with a view to resolving the Dispute. If the Dispute is not resolved within forty-five (45) days as from the receipt of the Dispute Notice either Party may require that the Dispute is resolved in accordance with Section .
13.1.3. Except where clearly prevented by the nature of the Dispute, the Parties shall continue performing their respective obligations under this Contract until the Dispute is resolved in accordance with the provisions of this Contract.
13.2 Arbitration 仲裁
13.2.1. In the event the Parties are unable to resolve the matter or the disagreements in accordance with the process described in Section , all the matters that are still in disagreement shall be submitted to the decision of, and shall be finally settled by arbitration conducted in accordance with the rules of the International Chamber of Commerce in Paris then in effect, except as herein modified by the Parties or otherwise agreed to by the Parties. All arbitration proceedings shall be conducted in English and shall take place in the city of Rio de Janeiro -RJ.
13.2.2. The arbitration shall be held and determined by three (3) arbitrators. Each Party shall appoint an arbitrator of its choice within thirty (30) days as from the submission of a notice of arbitration. The Party-appointed arbitrators shall in turn appoint the presiding arbitrator of the tribunal within fifteen (15) days following the appointment of both Party-appointed arbitrators. Should the Party-appointed arbitrators not reach an agreement on a presiding arbitrator of the tribunal and/or one Party refuses to appoint its Party-appointed arbitrator within said thirty-day period, then the International Chamber of Commerce Court of Arbitration shall appoint the arbitrator(s) required to complete the tribunal. All decisions and awards by the arbitration tribunal shall be made by majority vote and shall be based exclusively in law and not in equity.
13.2.3. Unless otherwise expressly agreed in writing by the Parties to the arbitration proceedings: 除了各方向仲裁程序提出书面表明同意的：
(a) The arbitrator(s) shall be and remain at all times wholly independent and impartial; 仲裁人应一直保持独立和公正；
(b) All members of the arbitration tribunal shall have experience relevant to the subject matters of the Dispute; 仲裁庭的成员应对争端事项有相当经验；
(c) The expenses of the appointed arbitrator of each side of the Dispute shall be advanced and finally paid by that Party, and the expenses of the third arbitrator shall be advanced and finally paid equally by the opposing sides involved in the Dispute;
(d) The decision of the majority of the arbitrators shall be (i) reduced to writing; (ii) final and binding without the right of appeal; (iii) the sole and exclusive remedy regarding any claims, counterclaims, issues or accountings presented to arbitration; (iv) made and promptly paid in Dollars; and (v) any costs or fees incident to enforcing the award, shall to the maximum extent permitted by law be charged against the Party resisting such enforcement;
(e) The award shall include interest from the date of any breach or violation of this Contract, as determined by the arbitration award, and from the date of the award until paid in full, at the agreed interest rate by the arbitrators;
Judgment upon the award may be entered in any court having jurisdiction over the person or the assets of the Party owing the judgment, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be;
The arbitration shall proceed in the absence of a Party who, duly notified, fails to answer or appear. An award shall not be made solely on the default of a Party, but the arbitrators shall require the Party who is present to submit such evidence as the arbitrators may determine is reasonably required to make an award;
If an arbitrator should die, withdraw or otherwise become incapable of serving, or refuse to serve, a successor arbitrator shall be selected and appointed in the same manner as the original arbitrator;
The arbitrators shall take into account principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and a client;
The Parties waive any rights to seek rulings from any court on issues of law that arise during an arbitration or to challenge the award on the grounds of the interpretation of law adopted by the arbitrators.
14. GOVERNING LAW 准据法
14.1.1. This Contract shall be governed by and construed in accordance with the laws of the [State of New York, the United States of America], without giving effect to the conflicts of laws thereof. The trade terms under this Contract shall be governed by and interpreted under the provisions of the Incoterms and its supplements in force at the date of the shipment of the Products hereunder.
14.1.2. The application of the Convention on the International Sale of Goods is expressly excluded.
15. CONFIDENTIALITY 保密性
15.1.1. The Parties hereby agree that the terms of this Contract are confidential and that, except for the purpose of enforcing this Contract, neither Party shall disclose any of the terms of this Contract to any third party other than an affiliate of a Party and/or Client(s), unless such disclosure is, as evidenced by opinion of counsel, required by law or regulation of a stock exchange to which a Party is affiliated or unless prior written approval has been obtained from the other Party.
16. NOTICES 通知
16.1.1. Any notice or other communication from one of the Parties to the other Party, which is required or permitted to be made by the provisions of this Contract shall be (a) made in the English language; (b) made in writing; and (c) sent by facsimile and/or courier to the following addresses:
17. MISCELLANEOUS PROVISIONS 其它规定
17.1 Severability 可分性
17.1.1. Should any term or provision of this Contract be considered invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Contract shall nevertheless remain in full force and effect so long as the economic or legal substance of the transaction herein contemplated is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Contract so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transaction herein contemplated be consummated as originally intended by the Parties to the greatest extent possible.
17.2 No Waiver 非弃权
17.2.1. Except as otherwise expressly provided herein, no waiver by any Party of any defaults by the other in the performance of any of the provisions of this Contract shall operate or be construed as a waiver of any other or further default or defaults whether of a like or different character.
17.2.2. The failure or delay by either Party in exercising any right, power or privilege under this Contract shall not operate as a waiver thereof nor shall any single partial exercise by that Party of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.
17.3 Amendments 修改
17.3.1. Except if otherwise expressly provided herein, no provision of this Contract may be amended, modified, waived, or discharged or terminated, unless if made in written and signed by the Parties hereto, nor may any breach of any provision of this Contract be waived or discharged by any Party except with the express written consent of the other Party.
17.4 Entire Contract 完整合同
17.4.1. This Contract supersedes any previous written or oral agreement between the Parties in relation to the matters dealt with in this Contract and contains the whole Contract between the Parties relating to the subject matter of this Contract at the date hereof to the exclusion of any terms implied by law which may be excluded by Contract. The Parties acknowledge that they have not been induced to enter into this Contract by any representation, warranty or undertaking not expressly incorporated into this Contract.
17.5 Taxes 税
17.5.1. Any and all taxes and duties levied on the Product or on this Contract in Brazil shall be afforded by Seller.
17.5.2. Any and all taxes and duties levied on the Product or on this Contract out of the country of origin shall be afforded by Buyer.
17.5.3. Should any Party be subject to any kind of penalty arising from the non-performance of tax obligations imposed by the relevant authorities, such defaulting Party shall bear any and all costs arising out therefrom.
Cooperation with Project Lenders 和项目贷方的合作
17.5.4. Seller intends that the Seller’s Mine will be financed on a limited-recourse basis through credit facilities entered into by Seller and certain banks (“Project Lenders”), and accordingly Buyer shall cooperate fully and in good faith with, and use its reasonable efforts to assist Seller in relation to the financing of the Seller’s Mine. In this regard, Buyer agrees to enter into one or, to the extent required, more direct agreements with the Project Lenders (or their agents), which direct agreements will contain, among other things, as they may be, customary or deemed necessary or advisable in accordance with market practices, obligations upon the Buyer to not, without the consent of the Project Lenders, (i) make any material amendments to the Agreement, (ii) waive or release any material obligations of the Seller under the Agreement and, (iii) agree any cancellation or termination of the Agreement as a result of a breach by the Seller without giving the Project Lenders (or their agents) notice thereof and the right to step in and cure such breach in the name of the Seller.
[Signature Page follows.] 在下页签名
Executed by the Parties as a Contract on the date first set out above.
1. Buyer shall present to Seller a tentative loading schedule for each Contract Year not later than October 31st of the previous Contract Year indicating tentative monthly quantities and shipment schedule (“Annual Quantity Notice”). Seller shall confirm in writing such schedule to Buyer within fifteen (15) days from the receipt of the Annual Quantity Notice.
a. [Buyer and Seller shall mutually agree by September 30th of each Contract Year the quantities of Ground Pellet Feed (i.e. Product with Blaine index exceeding 1,800cm@/gr as measured by air-permeability methods), if any, to be supplied during the following year.]
[买方和卖方应在每合同年的九月三十日，如果在接下来一年终需要供应的话，取得对于Ground Pellet Feed数量的同意（布莱恩指数以空气渗透性方法测量超过1,800cm@/gr的产品）。]
b. The Amount Quantity presented in the Annual Quantity Notice shall not be more than [ ] percent ([ ]%) higher or lower in comparison to the Amount Quantity agreed between the Parties for the Contract Year then in course.
在年度数量通知上提出的年度数量，大于或小于目前合同年双方同意的年度数量，不可超过百分之[ ]（[ ]%） 。
2. Buyer shall present to Seller a provisional loading schedule at least [forty-five (45)] days prior to commencement of each Quarter of the Contract Year indicating quantities (“Quarterly Quantities Notice”), Product types and the firm laydays of [fifteen (15)] for each shipment. Seller shall confirm such schedule to Buyer within [seven (7)] days from receipt of the Quarterly Quantities Notice.
3. Buyer shall also present to Seller a provisional loading schedule at least [twenty-one (21)] days prior to commencement of such month of the Contract Year indicating quantities (“Monthly Quantities Notice”), Product types and the firm laydays of [fifteen (15)] for each shipment. Seller shall confirm such schedule to Buyer within [three (3)] business days from receipt of the Monthly Quantities Notice.
4. Buyer shall lift the contracted quantities on an evenly spread basis as much as possible.