ENTERED INTO BY AND BETWEEN: 当事方为：
COMPANY NAME: 卖方名称 (Hereinafter sometimes called the “SELLER”) and
FAX NUMBER: 传真
COMPANY NAME: 买方名称 (Hereinafter called the “BUYER”)
FAX NUMBER: 传真
Who shall be collectively known herein as “the Parties” 以下简称“各方”
NOW THEREFORE THESE PRESENTS WITNESSETH:
WHEREAS the parties mutually agree to accept and refer to the General Terms and Definitions as set out by INCOTERMS Edition 2000 with the latest amendments, and that the parties understand and accept such terminology and definitions as set forth below:
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth it is agreed as follows:
Commodity: Referred to as being Thermal Coal elsewhere in the Agreement also referred to as "Product" hereunder.
Port of Loading: 装运港：
Day: Means a Calendar day, unless differently specified. 日：公历日
Month: Means a Gregorian calendar month. 月：阳历月
Calendar quarter: Period of three (3) consecutive months - 1st January, 1st April, 1st July or 1st October.
Dollars (USD)美元: Means respectively Dollars and Cents in the freely transferable lawful Currency of the United States of America.
DMT: Means dry metric ton. DMT:干公吨
L/C: Means Irrevocable documentary letter of credit open in United States dollars.
Bill of Lading: The official document, issued at the load port after completion of loading operations, stating, among other things, the ship's loaded quantity, expressed in Metric Tons per the definitions herein. This document has to be signed in original by the ship's Master and made out in accordance with the instructions specified herein.
CIQ: Means Entry-Exit Inspection and Quarantine of The People’s Republic of China.
WHEREAS: the seller agrees hereby to sell and the buyer agrees hereby to purchase the Commodity mentioned hereinabove and THE PARTIES mutually desire to execute this Agreement which shall be binding upon the parties, their successors and assigns, in accordance with the jurisdictional laws of the People’s Republic of China, that they have negotiated and fully executed this Agreement and agreed to with all terms and provisions hereunder.
Clause 1. Commodity:第一条 商品
Name of Commodity: Thermal Coal 商品名：电煤（动力煤）
Origin: Colombia 原产地：美国
Port of Loading: Bolivar Colombia 装运港：
Port of Destination: 目的港：青岛港
Clause 2. Delivery and Quantity: 第二条 发运和数量
Delivery: First shipment within 30 days after buyer’s letter of credit accepted by the seller, partial shipment and transshipment not allowed.
Quantity: 120,000 MT (+/-10%) per shipment at seller’s option. 100,000MT per month
Clause 3. Specifications:技术指标
3.1 The certificate of quality and quantity of goods shall be issued by the independent international survey company SGS at the loading port at the Seller's expense.
3.2 The quality of Commodity to be supplier herein shall be as follows:
Item Unit单位 Limit of Range范围
Seller’s Guaranteed Quality卖方保证
Total Moisture(As received basis) 总水分%WTMax 13(*1)13-18
Volatile Matter(Air dried Basis) 挥发物（空气干燥基）%WT33~35 35
Fixed Carbon(Air dried basis) 固定碳（空气干燥基%WTMax 60 49
Ash(Air dried basis) 灰分（空气干燥基）%WTMax 10 9
Total Sulphur(As received basis) 含硫量（收到基）%WTMax 1.00 1.00
Grindability (HGI) 易磨性Min 45 48
Hydrogen (Hd)(Dry basis) 氢含量（干燥基）%WT-4.6
Net Calorific basis (As received basis)
净热量基础（收到基）Kcal/kg Min 6000 7500
Nitrogen(Dry ash free basis)氮含量（无灰计算）%WTMax 1.5 1.5
Ash Fusion Temperature IDT(Reducing Atmosphere) 灰熔温度℃Min1200
Ash Analysis 灰分分析
Fe2O3 氧化铁%WTMax16 9.0
Si02 二氧化硅%WTMax 62 62
Al203 氧化铝 %WTMax 20 20
Above 50mm超过50毫米%Max 5 5
Under 2mm低于2毫米%Max 40 30
Net Calorific basis(As received basis) : Reject < 6000 Kcal/kg
Clause 4. Base Price: 基础价
The Base Price of Coal supplied under this contract shall be CIF US$109.00 per metric ton based on 7500 kcal/kg net calorific value on an as received basis at the port of destination.
Clause 5. Price Adjustment:价格调整
5.1 general terms
The price of Clause 4 shall be adjusted by increase and/or decrease pursuant to Section 5.2, 5.3, 5.4 so that the price per metric ton payable by the Buyer to the seller for each shipment shall be determined.
5.2 Net Calorific value (as received basis)净热值（接受基）
In the event the certified Net Calorific Value of Coal is less than 7500 kcal/kg, the price per metric ton shall be reduced by 1.5 USD per metric ton for each 100 kcal/kg below 6000 kcal/kg, fractions pro-rata:
In the event the certified Net Calorific Value of Coal is more than 7500 kcal/kg, the price per metric ton shall be increased by 1.0USD per metric ton for each 100 kcal/kg above 7500 kcal/kg, fractions pro-rata:
Buyer has the right to reject the cargo if the net calorific value (as received basis) is less than 6000Kcal/kg.
5.3 Sulphur (as received basis) 含硫量（接受基）
In the event the certified total Sulphur content of Coal exceeds Guaranteed Specification for Sulphur, then buyer has the right to reject the cargo or negotiate a price acceptable both to seller and buyer.
5.4 Ash (air dried basis) 灰分
In the event the certified total ash content exceeds Guaranteed Specification for Ash, then buyer has the right to reject the cargo or negotiate a price acceptable both to seller and buyer.
5.5 Total Moisture 总水分
In the event that the Moisture content as indicated in the Certificate of Analysis exceeds 13.00%, the weight of the cargo for invoicing purpopses shall be adjusted by 1.0% for each 1.0% (or pro-rate to one decimal place) of Moisture in excess of 12.00%.
Clause 6. Performance Bond and Payment:履约保函和付款方式
6.1 Performance Bond: 履约保函
For first shipment Seller shall within 5 working days after contract signing issue a non-operative Performance Bond from First class bank for an amount of 2% of first shipment contract value, in favor of Buyer. Prior to that, the issuing bank and the format of performance bond shall be accepted and confirmed by Buyer.
Performance Bond will become an operative Performance Bond upon establishing the L/C to Seller through Buyer’s Bank.
6.2 Letter of Credit: 信用证
After Buyer receives the Seller’s non-operative Performance Bond, Buyer shall, within 5 working days, open an irrevocable, non-transferable, Documentary Letter of Credit (L/C) in favor of Seller through any First Class Bank in China, for an amount in US Dollar sufficient to cover 100% of shipment value calculated by the quantity of the commodity issued by SGS at the port of loading multiples Base Price stipulated in Clause 4;
Once the language is agreed upon of the L/C by the seller, the performance bond will become active. L/C is to be payable at sight against presentation of the documents mentioned in Clause 7, all banking fees outside China is borne by the Seller. All banking fees inside issuing bank are for the account of the beneficiary.
6.3. Provisional Payment货款
The first payment of 90% CIF shipment value will be made against the presentation of the Ocean Bill of Lading and quality and quantity certificate issued by SGS at the port of loading and other documents specified in Clause 7 at the counter of the Seller’s bank.
6.4. Final Payment尾款
The final payment will be made based on the certificate of quality and quantity of delivered commodity issued by CIQ at discharging port , with Clause 5 Price Adjustment taken into consideration when calculate the total value of the commodity.
Once the total value of the commodity is calculated, the balance between provisional payment and the total value of the commodity will be decided.
The balance payment due to the seller after provisional payment shall be effected under the same L/C against Seller’s final invoice in three original and three copies delivered through the Bank. The invoice is to be issued based on CIQ certificates at the port of destination as provided in clause 7 and clause 8 issued within 30 days from the date of Bill of Lading.
If the Certificate issued by CIQ at the port of destination cannot be forwarded to Seller by fax or email within 30 days after the date of Bill of Lading, then the certificate at the port of loading shall be the basis of the final invoice. If umpire analysis is required, Seller's final invoice shall be based on SGS certificate and/or umpire analysis certificate and the final payment shall be made when the umpire's certificate is available. The Seller, at its option, can nominate an umpire to be agreed by the Buyer, prior to SGS inspection.
In the event that Seller's final invoice amount is not in excess of the provisional payment amount in Clause 6.3, Buyer shall send a debit note to Seller in respect of any overpayment together with fax copy of CIQ certificate and/or umpire analysis certificate and Buyer's fax confirming Seller's final invoice calculations based on the above-mentioned certificate. In this case Seller shall make the final payment within seven (7) days after Buyer’s confirming but within the validity of the L/C.
Clause 7. Documents: 单据
7.1. Documents For Provisional Payment货款支付要求的单据
Seller shall, after the delivery of shipment to Buyer, present the following documents in respect of the shipment to bank for negotiation within 21 days after B/L date:
(i) Seller's signed provisional commercial invoice in three originals and three copies indicating contract number, L/C Number, name of carrying vessel, CFR value of shipment and B/L date & No.
(ii) 3/3 Full set of "Clean on board" original ocean Bill of lading issued by the owner or master of the vessel, made out to order, blank endorsed, marked "Freight Prepaid" notifying Co., Ltd.”
(iii) Certificate of Weight in one original and three copies issued by SGS at port of loading.
(iv) Certificate of Quality in one original and three copies issued by SGS at port of loading.
(v) Certificate of Origin in one original and three copies issued or endorsed by any Chamber of Commerce and Industry in Ameraica.
(vi) Seller’s notarized copy of fax sent to Buyer within 5 (Five) working days after shipment date advising shipment details including the contract number, name of vessel, name of commodity approximate invoice value, gross weight, loading and sailing date, and Bill of Lading No. and date.
(vii) Beneficiary’s Letter, notarized by a notary public, stating that they sent to Buyer by fax one set of documents including B/L, provisional invoice, certificate of quality, certificate of weight, and certificate of origin within 5 (five) working days after B/L date.
7.2. Documents for Final Payment尾款支付文件
(i) Seller's signed final commercial invoice in three originals and three copies.
(ii) Certificate of Weight and Certificate of Quality in one copy each issued by CIQ as provided in Clause 8 and Clause 9, photocopy/fax copy acceptable.
(iii) Certificate of Weight and certificate of Quality issued by SGS at the loading ports in one copy.
each can be submitted as substitute if above mentioned documents (ii) are not received by the seller within 90 days after date of Bill of Lading, photocopy/fax copy acceptable.
If the total value of commodity is less than the Provisional Payment, the Seller must pay to the Buyer the amount by which the Provisional Payment is greater than the Final Price promptly and, in any event, no later than five working Days of the buyer’s notice by call or FAX.
Clause 8. WEIGHING:重量
At the loading port, Seller shall, at Seller's expenses, appoint SGS to determine the weight of Commodity by draft survey. The weight of Commodity ascertained and certified by SGS shall be the basis of Seller's provisional invoice. Buyer may, at Buyer's expenses, have its representative present during the draft survey at the loading port.
Buyer shall, at Buyer's expense, appoint CIQ for weighing at the port of destination. The weight of shipment at the port of destination is to be ascertained by draft survey. The weight thus determined by CIQ shall be final as to wet quantity of the shipment. Seller may, at Seller's expenses, have its representative present at the time of draft survey and weight determination at the port of destination.
If the differences of weight outturn are over 0.5% of the lower one, the Buyer and the Seller shall consult to reconcile the differences. If after consultation between Seller and Buyer the difference cannot be reconciled, then at the request of Seller the sample for umpire shall be analyzed by an Umpire agreed between Buyer and Seller, and the certificate of Weight issued by such umpire shall be final for weight and moisture content.
If no draft survey is performed at the discharging port, the certificate of weight at the loading port shall be regarded as final of wet weight.
Clause 9. SAMPLING AND ANALYSIS:取样及分析
At the loading port, Seller shall, at Seller's expenses, appoint SGS to determine the specification of Commodity contained in the shipment and shall provide a certificate showing details of the determination as to the specifications of Commodity. Buyer may, at Buyer's expenses, have its representatives be present at the time of such determination, or appoint an independent inspection agency to carry out loading inspection against the contracted cargo. Under such circumstances, Seller shall render full assistance to facilitate the inspection.
At the port of destination, Buyer shall, at Buyer's expense, appoint CIQ for sampling and analysis. CIQ shall take sample from the shipment and divide it into three parts; one for Buyer, the second for Seller and the third for possible umpire analysis which shall be sealed and kept by CIQ. Seller may, at Seller's expenses, have its own inspection agency or representatives present at the time of sampling and analysis at the port of destination.
Buyer shall forward to Seller by fax, within 30 days after date of bill of lading, a certificate issued by CIQ regarding the above mentioned specification of Coal in Clause 3. The analysis conducted by CIQ at the port of destination shall be final except as otherwise provided for in paragraph below.
If the difference in Net Calorific Value between Buyer’s and Seller ‘s analysis is more than 0.5% of the lower one, or if there exists a significant difference between the two said analysis in respect of any one or more items other than Net Calorific Value, Seller shall consult with Buyer to reconcile such differences. If after consultation between Seller and Buyer the difference cannot be reconciled, then at the request of Seller the sample for umpire shall be analyzed by an Umpire agreed between Buyer and Seller, and the certificate of Quality issued by such umpire shall be final for Net Calorific Value or relevant items.
The cost of the umpire analysis shall be for the account of the party whose own analysis differs farther from the umpire analysis, and if the result of such umpire analysis is the mean of the analysis of Buyer and Seller then such cost shall be equally borne by both parties.
If no determination of analysis is exercised at the port of destination, the certificate(s) at the loading port issued by SGS shall be conclusive as to analysis of Commodity.
Clause 10. Discharging Terms and Conditions: 卸货条款
C.Q.D. (Customary Quick Dispatch) 按惯例进行快速装卸
Clause 11. Advice of Shipment and Notification of Arrival:起运和到达通知
Seller shall, before fixing the performing vessel, advise vessel information to Buyer and obtain Buyer’s written acceptance. Buyer shall reply to Seller on acceptability of the ship within two working days after Seller’s nomination. If no written acceptance is received by the Seller within 2 working days, it is deemed that the Buyer has accepted the vessel.
Seller shall, upon completion of loading at the loading port, advise Buyer within 5 (Five) working days after the date of B/L by fax/telex/cable of the contract number, name of vessel, name of commodity, B/L date, B/L number and B/L weight at the loading port.
The Seller shall arrange for the master of the vessel to notify Buyer/ discharge port agent three notices of the ETA of the vessel at the discharging port. The first of such notice will be given 10 (ten) days prior to the ETA of the vessel, the second to be given 48 (forty eighty) hours prior to the ETA and the third to be given 24 (twenty four) hours prior to the ETA.
Clause 12. Insurance:保险
To be covered by the Buyer. Seller shall give buyer the pre-shipment advices before loading in order to cover insurance in advance. Seller shall, with no delay, notify the buyer after the completion of loading of commodity by fax/email/phone.
Clause 13. Force Majeure:不可抗力
13.1 If at any time during the existence of this contract either party is unable to perform whole or in part any obligation under this contract, because of war, hostility, military operation of any character, civil commotions, sabotage, quarantine restriction, acts of Government, explosions, strikes, embargoes, epidemics, fire, floods, earthquake, hurricane, storm or tsunami, then the date of fulfillment of any obligation shall be postponed during the time when such circumstances are operative.
13.2 Force majeure is interpreted pursuant to the provisions of ICC 500.
13.3 The force majeure event does not exonerate the buyer from paying for the goods already delivered
13.4 No reduction or susn in the deliveries or receipt of the Product due to any of the reasons set forth above, shall extend the term of The Agreement or terminate said Agreement. However, either Party to The Agreement may terminate the Agreement by written notice to the other if any the aforementioned circumstance(s) persist for more than 30 (Thirty) days, without prejudice to any sums owing by either Party to the other Party.
13.5 A certificate issued in original by a competent recognized authority shall be deemed as sufficient proof for the claim of Force Majeure and for its duration.
Clause 14. Title and Risk:权利与风险
The title with respect to each shipment shall pass from Seller to Buyer when Seller receives payment of the proceeds from the opening bank through negotiating bank against the relative shipping documents.
All risk of loss, damage or destruction respecting the Commodity delivered shall pass to buyer individually and separately at the time of the loading of Commodity into the vessel.
Clause 15. Loss of cargo:货物损失
In the event of partial loss of Cargo, the bill of lading weight and the analysis carried out at discharging port shall be treated as final and shall form the basis of final invoice and payment.
In the event of total loss of Cargo, the bill of lading weight and the analysis carried out at loading port shall be treated as final and shall form the basis of final invoice and payment.
Clause 16. Arbitration:仲裁
All disputes or differences whatsoever arising between the parties out of or relating to the construction, meaning and operation or effect of this contract or the breach thereof the case shall be submitted to China International Arbitration Center (CIAC) in Beijing for arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest of this clause. The appointing authority shall be CIAC and the place of arbitration shall be inBeijing. Any such arbitration shall be administered by CIAC in accordance with CIAC Procedures for Arbitration in force at the date of this contract including such additions to the UNCITRAL Arbitration Rules as are therein contained. The arbitral award is final.
Clause 17. Export and other Levies:出口及其他税
Fee levied on export of Commodity in the country of origin shall be for the account of Seller, whereas all levies on the import of Commodity in the country of destination shall be to the Buyer’s account.
Clause 18. Validation: 合同生效
The contract shall become valid as and when signed by duly authorized representatives of both the Sellers and the Buyers.
Clause 19. Amendment to the Contract: 合同修改
Any change or modification in the terms and conditions of this contract shall become effective only when confirmed by both the Sellers and the Buyers in writing.
Clause 20 - Confidentiality Non-Circumvent / Non-Disclosure 保密约定
The undersigned Parties do hereby accept and agree to the provisions of the International Chamber of Commerce for Non-Circumvention and Non-Disclosure with regards to all and anyone of the Parties in this transaction.
To include but not limited to the Buyer, Seller, their agents, mandates, nominees, assignees, and all intermediaries party to this agreement/contract.
This agreement shall be kept in the strictest confidence between them for at least Five (5) years from the date hereof.
Neither party is entitled to transfer their rights and/or obligations under this contract to a third party with exceptions of Financial Agent of the Seller/Buyer, as it is provided in appendix No3 of the present contract, and except where the third party is an entity whose majority ownership is the same as the original ownership contract partner. In any case the transferring party will notify the other party in writing (Including Telex).
After signing the present contract all previous negotiations and correspondence between the Parties in this connection will be considered null and void. If the Seller ceases the Contract for any reason or fails to comply with the conditions thereof, Performance Bond shall enter into force.
Clause 21 – ASSIGNMENT 合同转让
21.1 The Seller or the Buyer may assign this Contract and its total or partial performance hereunder to any Company provided the assigned entity is capable of assuming the obligations of this Agreement and is approved by the other party in writing..
21.2 Under the terms of such an assignment, formal written notice of the assignment shall be delivered to the other party by overnight courier for acceptance.
Clause 22 - TERMINATION. 合同终止
22.1 This agreement may be terminated on the following grounds, without compensation of any kind for the parties: 合同在以下条件下终止
22.1.1 By mutual agreement between the parties. 双方同意
22.1.2 Bankruptcy Company termination of either party.任何一方破产
22.1.3 Depletion of mines origin of the material supplied. 供货方煤矿资源耗尽
22.1.4 Force majeure. 不可抗力
22.1.5 Substantial changes in the market price of the product 产品市场价格重大变动
CLAUSE 23 - CLAIMS 索赔
23.1 Any claim(s) that either Party has to be submitted to the other Party within a period of 1 month from the date of the occurrence causing the claim. If within 45 calendar days from date of discharge of vessel at the discharge port, the Buyer fails to inform the Seller confirming the non- compliance, the Commodity will be deemed to have been accepted by the buyer and no claim will be accepted by the Seller.
23.2 In the event that the quality of any one of the delivered batches fails to comply with the contracted specifications, then the Buyer shall have the option to either refuse delivery without incurring any liability whatsoever or make a counter offer for the said batch at a lower price to be negotiated prior to the commencement of the discharge operations
Clause 24 – INDEMNITY FOR THIRD PARTY PERSONNEL AND PROPERTY
24.1 The Seller undertakes to indemnify Buyer and hold, its headquarters, subsidiaries, affiliates and subcontractors, and their officers, directors, managers, employees and agents, free from all liability for claims, losses, damages or claims for personal injury, illness, death, damage to or loss of property caused by the Seller, its employees and subcontractors, except with malice or gross negligence of the Buyer or their subcontractors or dependents.
24.2 The Buyer undertakes to indemnify the Seller and hold, its headquarters, subsidiaries, affiliates and subcontractors, and their officers, directors, managers, employees and agents, free from all liability for claims, losses, damages or claims for personal injury, illness, death, damage to or loss of property caused by the Buyer, its employees and subcontractors, except with malice or gross negligence of the Seller or their subcontractors or dependents.
24.3 Third-party liability the Buyer, will be solely responsible for all damage caused to others by acts or omissions of his, or their workers in the execution of this agreement.
24.4 Third-party liability: the Seller shall be solely liable for all damages caused to others by acts or omissions of itself or its employees in the execution of this agreement.
Clause 25. Bank Information: 银行信息 (略)
We,the Buyer and the Seller, hereby agree to the above terms and condition contained in this Contract dated. 各方签署确认。