This contract is concluded on the day of (the “Effective Date”) between (the “Buyer”) and (the “Seller”).
This contract is concluded on the day of (the “Effective Date”) between (the “Buyer”) and (the “Seller”).
1.SCOPE OF THE CONTRACT 合同目的
The Seller agrees to sell and deliver Coal in bulk and the Buyer agrees to purchase and accept delivery of Coal in bulk at the terms and conditions set out below:
One cape-sized shipments of 165,000 Metric Tons +/- 10% in vessel’s option.
Colombian original coal in accordance with the following typical specifications (the “Coal”):
Buyer’s Right to Reject 买方拒收权
The Buyer has the right to reject the Coal if: 买方有权拒收，如：
The loadport Net Calorific Value (as received) result is below 5600 kcal/kg; or
The loadport Sulphur content (as received) result is over 1%; or
The loadport Ash content (as received) result is over 16%. 装货港灰分（收到时）高于16%
The price per Metric Ton of the Coal shall be calculated as follows:煤炭的每公吨价格计算如下：
US$ xxx per MT delivered CIF 1 safe port, 1 safe berth in Fangcheng port, Guangxi province, China, basis 5,800 kcal/kg (NAR) with no draft restrictions at discharge port.
每公吨美元$ CIF 一个安全港口，一个在港的安全、没有吃水限制泊位，基础5,800大卡/公斤（收到时净值）。
Price Adjustment 价格调整
Calorific Value 热值
In the event the Actual Calorific Value is above or below 5,800 kcal/kg (NAR) a pro-rata price adjustment will be deducted from or added to the Price, calculated as follows:
Freight means the actual freight rate per Metric Ton, to be advised by Seller to Buyer;
FOB Price means the CIF price less Freight.
FOB Price 即是CIF价格扣除Freight运费。
6.SHIPPING SCHEDULE 装运时间表
The Coal shall be loaded during May or June 2012 in Seller’s option and subject to suitable vessel availability.
If a workable letter of credit is not received by Seller’s bank in accordance with the clause 8. PAYMENT, Seller shall have the right but not the obligation to delay or suspend performance of any of its obligations under this contract and/or terminate this contract. Any losses arising out of Buyer’s failure to open a workable letter of credit in time shall be for Buyer’s account.
CIF (Incoterms 2010) 1 safe port, 1 safe berth in Fangcheng port, Guangxi province, China, basis 5,800 kcal/kg (NAR) with no draft restrictions at discharge port.
Buyer shall provide at discharge port a safe berth reachable on arrival where the vessel shall always be able to enter, discharge, lie and leave afloat.
Vessel Nomination 船只通报
Seller shall notify the Buyer of the following details in writing:
a.The name (or IMO number) of the vessel that the Seller nominates including the age, flag, class, deadweight tonnage, beam, length overall and draft of the vessel;
b.The estimated date of arrival of the vessel at the port of discharge.
Buyer shall confirm acceptance of vessel nomination within 1(one) Business Day of Seller’s nomination.
The Seller shall give written notice to the Buyer of the progress of the vessel five (5) days, three (3) days, two (2) days and twenty four (24) hours before the ETA of the vessel at the port of discharge. The Seller shall inform the Buyer of any deviation in excess of twenty-four (24) hours to the aforementioned ETA.
The Seller may substitute any vessel nominated under this contract by another vessel by giving a notice of substitution to the Buyer at any time prior to ETA of the original vessel.
Discharge rate 卸载速度
Buyer shall guarantee a minimum discharge rate of 25,000 metric tons per weather working day, Sundays and holidays included (PWWD SHINC).
Turn time: 12 (twelve) hours.等泊时间：十二小时
Agency, port charges, dues and taxes
At the discharge port, the Seller is only accountable for port charges associated with bringing the vessel alongside the discharge berth. Any taxes, dues or other charges levied against the cargo shall be for the Buyer’s account. All such charges shall be paid promptly by the Buyer such that the Buyer is in a position to take delivery of the cargo without delay.
The stevedores shall be appointed by the Buyer. The stevedores and anyone employed by the stevedores shall be under the supervision of the Master. Loss and/or damage caused by Stevedore act or omission, if any, to be settled directly between stevedores / Buyer and Master / owners.
Product discharged by Buyer 买方卸载货物
Product is to be discharged and taken free from the vessel's holds at the Buyer's risk and expense.
Notice of Readiness and Laytime 准备就绪通知与卸货时间
After arrival at the port of discharge, Notice of Readiness may be tendered by the vessel during or outside of office hours at any time of day or night, Saturdays, Sundays and holidays included, whether in port or not, whether in berth or not, whether in free pratique or not, whether customs cleared or not.
Laytime shall commence at the earlier of: 卸货时间将随下开情况开始，以先发生着为准：
a.Twelve (12) hours after Notice of Readiness has been tendered; or
b.The actual commencement of discharge. 实际卸货开始时。
Laytime shall cease on completion of discharge (holds to be left by stevedores swept cleaned, to Master’s satisfaction). Any extra time used solely for the Buyer’s draft survey shall count as Laytime. Time used for final draft survey, shall always count as Laytime and time used.
Time and costs of shifting directly between berths at the Buyer’s or Port Authority’s request shall count as Laytime and all in doing so shall be for the Buyer’s account.
Any time lost during discharging due to the vessel's inability to discharge or due to any other defect and/or default in the vessel, deficiency and/or default of the vessel's personnel shall not count as Laytime.
In the event of weather conditions which, in the opinion of either the Port Authority or the Master make discharging perilous, and all discharging operations are suspended then all such time lost shall not count as Laytime, unless vessel is already on demurrage, and the Master may close hatches in case of heavy rain, heavy snow, or hail. In case of rain, all holds which have not been fully discharged should be closed in order to avoid wetting the Coal.
Laytime permitted at the discharge port shall be calculated on bill of lading quantity.
Demurrage and Despatch 滞期费与速遣费
The demurrage rate shall be as per the governing Charter Party.
If total Laytime used exceeds total Laytime allowed, Buyer shall pay Seller demurrage per day or pro rata for the excess time. If the total Laytime used is less than the total Laytime allowed, the Seller shall pay despatch to the Buyer for the time saved at the rate equal to fifty per cent (50%) of the demurrage rate per day or pro rata part thereof.
Laytime calculations shall be presented by the Buyer within 30 (thirty) calendar days of the completion of discharge. Demurrage / despatch shall be paid by the party so owing within 3 (three) Business Days of agreement of Laytime calculations against presentation of the owed party’s invoice.
Letter of Credit 信用证
Payment shall be made by Buyer in US$ without any deduction, withholding, offset or counterclaim whatsoever by means of a fully workable irrevocable documentary letter of credit, to be opened by a bank and in a form fully acceptable to Seller covering 100% (one hundred percent) of the cargo value based on Seller’s pro forma invoice value of quantity of 165,000mt and allowing a tolerance of +/- 10% in quantity.
1.The letter of credit must be opened within 3 (three) Business Days after this contract signed.
2.Time is of the essence for the opening of the letter of credit. The opening of the letter of credit shall be a condition precedent to the Seller’s obligation to deliver the Coal.
3.The letter of credit shall be available and negotiable at the counters of any bank and shall provide that:
a)Third party documents are acceptable; 第三方文件可接受；
b)Underdrawings and multiple drawings are allowed; 可以不足额兑付及多次兑付。
c)Documents to be presented within 42 days of the bill of lading date;
d)The value of the letter of credit may escalate/de-escalate in accordance with the price formula without any further amendment;
e)Spelling mistakes and other typographical errors not affecting unit price, quantity and/or amount are acceptable; and
f)Interest payable may be drawn separately; 应付利息可以另行兑付。
g)The quality specifications stated are typical values. If such values differ from the actual values shown on the certificate of analysis issued at the port of loading, they cannot be deemed as a discrepancy under the letter of credit except for quality specifications that exceed or are below any stated rejection limit.
4.If the certificate of sampling and analysis reflects specifications which are outside of the typical specifications but within the rejection limits as stated in clause 4. QUALITY, the beneficiary of the letter of credit may negotiate without discrepancy.
5.The letter of credit shall be governed by UCP 600 (ICC Uniform Customs and Practice for Documentary Credits).
信用证受UCP 600 管辖。
6.The letter of credit shall not bear any sanction clauses.
7.All charges relating to the opening of the letter of credit shall be for the Buyer’s account. Any charges from the advising/negotiating bank shall be for the Seller’s account.
95% of the value of the Coal based on the bill of lading weight and the analysis determined at the port of loading, shall be paid at sight under the letter of credit against presentation of the following original documents:
1.Seller’s provisional invoice; 卖方临时发票；
2.3/3 original ‘clean on board’ Charter Party bills of lading, made out to order and blank endorsed, marked “freight payable as per Charter Party”;
3.Certificate of weight in 1 original and 1 copy; 重量证明，一正本，一副本；
4.Certificate of analysis in 1 original and 1 copy; 检验证明，一正本，一副本；
5.Certificate of origin in 1 original and 1 copy. 产地来源证，一正本，一副本。
Final payment shall be made under the letter of credit against presentation of the following documents:
If the calorific value (on a NAR basis) determined at the port of loading by an internationally recognised licensed marine inspector and at the port of discharge by CIQ is within 200 (two hundred) kcal/kg:
1.Seller’s final commercial invoice; 卖方最终商业发票，
2.Beneficiary’s certificate certifying that the calorific value (on a NAR basis) determined at the port of loading by an internationally recognised licensed marine inspector and at the port of discharge by CIQ is within 200 (two hundred) kcal/kg.
If the calorific value (on a NAR basis) determined at the port of loading by an internationally recognised licensed marine inspector and at the port of discharge by CIQ is greater than 200 (two hundred) kcal/kg:
1.Seller’s final commercial invoice based on umpire certificate of analysis, indicating the basis of the calculation of the payable amount;
2.Umpire certificate of analysis. 仲裁者的检验报告。
9.TITLE AND RISK 货物权与风险
Title shall pass from Seller to Buyer when the letter of credit issuing bank has accepted the documentary presentation by Seller’s bank under the letter of credit and, in the case of sight payment, payment has been received by the Seller, or in the case of deferred payment, the issuing bank has accepted the deferred payment obligation to the Seller.
Risk shall pass from Seller to Buyer when the Coal is delivered on board the performing vessel at the port of loading.
10.WEIGHING, SAMPLING AND ANALYSIS 称重、取样及分析
The weight shall be determined at the port of loading by draft survey performed by an internationally recognized licensed marine inspector. The Seller shall appoint the inspector and shall bear the cost of these operations. The inspector shall issue a weight certificate for the Coal as determined by the draft survey and this weight shall be shown on the bill of lading. The weight thus determined shall be final and binding for settlement purposes, save for fraud or manifest error.
Sampling and Analysis 取样和分析
Sampling shall be conducted at the port of loading by an internationally recognised licensed marine inspector. The Seller shall appoint the inspector and shall bear the cost of these operations. Sampling shall be conducted using a mechanical or manual sampler where available. A composite sample shall be split into 3 (three) sub-samples, one for analysis by the inspector, one for Buyer, and one to be retained by the inspector for umpire purposes. The Buyer shall have the right to be represented during sampling operations at the port of loading at its own expense.
Determination of the quality of the Coal shall be done by analysis of the laboratory sample. The laboratory shall issue a certificate of analysis in accordance with ISO testing and analysis procedures. These results shall be final and binding, save for (a) fraud or manifest error; or (b) unless challenged as provided for below:
If the difference between the calorific value (on a NAR basis) determined at the port of loading by an internationally recognised licensed marine inspector and the port of discharge by CIQ is greater than 200 (two hundred) kcal/kg, then within 3 (three) Business Days after the calorific value has been determined at the port of discharge by CIQ, either party shall have the right to call for the load port umpire sample to be analysed. The analysis of such umpire sample shall be performed by SGS Newcastle. The calorific value determined by the umpire shall be final and binding on both parties, save for fraud or manifest error.
The Seller shall have the right to be represented during sampling operations at the port of discharge at its own expenses.
Seller shall have the right to appoint an independent inspector to conduct sampling and/or analysis operations at the port of discharge (the “Seller’s Inspector”). Seller’s Inspector shall be permitted to witness operations performed by CIQ at the port of discharge and to seal samples. Sample seals shall only be broken in the presence of the Seller’s Inspector. Upon completion of sample preparation the Seller’s Inspector shall be provided with a natural state sample for each sub-lot. The costs of Seller’s Inspector shall be for Seller’s account.
A composite sample taken at the port of discharge split and sealed by CIQ shall be reserved as Seller’s sample. Seller’s sample shall be delivered to the Seller’s office in China.
If an umpire analysis is performed and as a result a payment adjustment is to be made, such payment shall be made by the party so owing by telegraphic transfer within 3 (three) Business Days of the date the umpire’s certificate is issued against presentation of a copy of the umpire certificate and the owed party’s invoice for the sum claimed.
If either party is prevented, hindered or delayed from performing in whole or in part any obligation or condition of this contract by reason of force majeure (the “Affected Party”), the Affected Party shall give written notice to the other party promptly and in any event within 3 (three) Business Days after receiving notice of the occurrence of a force majeure event giving, to the extent reasonably practicable, the details and expected duration of the force majeure event and the quantity of Coal affected (the “Force Majeure Notice”).
Provided that a Force Majeure Notice has been given, for so long as the event of force majeure exists and to the extent that performance is prevented, hindered or delayed by the event of force majeure, neither party shall be liable to the other and the Affected Party may suspend performance of its obligations under this contract (a “Force Majeure Suspension”). During the period of a Force Majeure Suspension, the other party may suspend the performance of all or a part of its obligations to the extent that such suspension is commercially reasonable.
The Affected Party shall use commercially reasonable efforts to avoid or remove the event of force majeure and shall promptly notify the other party when the event of force majeure is terminated.
If a Force Majeure Suspension occurs, the time for performance of the affected obligations and, if applicable, the term of this contract shall be extended for a period equal to the period of suspension.
If the period of the Force Majeure Suspension is equal to or exceeds 3 months from the date of the Force Majeure Notice, and so long as the force majeure event is continuing, either party may, in its sole discretion and by written notice, terminate this contract or, in the case of multiple deliveries under this contract, terminate the affected deliveries. Upon termination in accordance with this clause, neither party shall have any further liability to the other in respect of this contract or, as the case may be, the terminated deliveries except for any rights and remedies previously accrued under the Contract, including any payment obligations.
“Force Majeure” means any cause or event reasonably beyond the control of a party, including, but not limited to fires, earthquakes, lightning, floods, explosions, storms, adverse weather, landslides and other acts of natural calamity or acts of god; navigational accidents or maritime peril; vessel damage or loss; strikes, grievances, actions by or among workers or lock-outs (whether or not such labour difficulty could be settled by acceding to any demands of any such labour group of individuals); accidents at, closing of, or restrictions upon the use of mooring facilities, docks, ports, harbours, railroads or other navigational or transportation mechanisms; disruption or breakdown of, storage plants, terminals, machinery or other facilities; acts of war, hostilities (whether declared or undeclared), civil commotion, arrest and/or detention of the Coal and/or vessel, embargoes, blockades, terrorism, sabotage or acts of the public enemy; any act or omission of any governmental authority; good faith compliance with any order, request or directive of any governmental authority; curtailment, interference, failure or cessation of supplies reasonably beyond the control of a party; or any other cause reasonably beyond the control of a party, whether similar or dissimilar to those above and whether foreseeable or unforeseeable, which, by the exercise of due diligence, such party could not have been able to avoid or overcome. A party’s inability economically to perform its obligations under the Contract shall not constitute an event of force majeure.
This clause shall not apply to any obligations to pay, indemnify or provide security or to any Coal for which vessel space has been booked, pricing has been established or payment has been made unless the Seller has expressly consented in writing.
12.DISPUTE RESOLUTION 解决争端
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the Hong Kong International Arbitration Centre (HKIAC), which Rules are deemed to be incorporated by reference into this clause. The tribunal shall consist of three arbitrators, one to be nominated by Buyer, one by Seller and the third to be mutually agreed by Buyer and Seller, failing such agreement, the appointing authority of HKIAC shall appoint the third arbitrator. However, it is understood that both parties shall be entitled to take any reasonable measures for the protection of rights accrued to them by this contract without prejudice to the provisions of this clause. The language of the arbitration shall be English. The arbitration shall be held in Hong Kong Special Administrative Region. The Arbitration Tribunal shall state in its award in detail the facts of the case and reasons for its decision. The award shall be final and binding.
13.CHOICE OF LAW 适用法律
The Contract shall be governed by and construed in accordance with the laws of Hong Kong, without regard to principles of choice of law.
The United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to this contract.
14.TAXES AND TARIFFS 税项与关税
Any taxes, tariffs and duties whether existing or new on the Coal or on commercial documents relating thereto or on the cargo itself, imposed in the country of origin shall be borne by the Seller.
Any taxes, tariffs and duties whether existing or new on the Coal or on commercial documents relating thereto or on the cargo itself, imposed in the country of discharge and/or the importing country shall be borne by Buyer.
Buyer undertakes that all the necessary import licences and all other authorisations required for the Coal have been obtained (and/or will be obtained) for the entire quantity covered by this contract. Buyer furthermore guarantees that such licences will remain in force for the full life of the contract.
No failure by the Buyer to comply with this clause shall: amount to frustration; constitute a force majeure event; or otherwise constitute justification for the non-performance by the Buyer of any obligation (or part thereof) under this contract.
Without the prior written consent of the other party, which shall not be unreasonably withheld, neither party may assign or create a trust or otherwise transfer its rights or obligations under this contract in full or in part, except that the Seller and its assigns may without such consent assign all or a portion of their rights to receive and obtain payment under this contract in connection with securitisation or bank funding arrangements. Any such assignment will not detract from the Seller’s obligations under this contract.
If either Party (the “Defaulting Party”) (i) fails to comply with any material obligation under this contract and such failure remains uncured for 3 (three) Business Days after written notice thereof; (ii) makes an assignment or arrangement for the benefit of creditors, (iii) is the subject of a petition or proceedings which has been filed/commenced under any bankruptcy or similar law for creditor protection, which is not withdrawn or dismissed within 30 (thirty) days of filing; (iv) otherwise becomes bankrupt or insolvent (however evidenced) or commits any act of bankruptcy; (vii) becomes subject to a dissolution or winding up order or to appointment of an administrator, examiner, receiver, custodian, liquidator, trustee or other similar official, then the other Party (the “Non-Defaulting Party”) shall have the right to (a) terminate this contract upon written notice to the Defaulting Party; and/or (b) suspend performance of its obligations under this contract until such event of default is cured or the contract is terminated; and/or (c) withhold and/or offset any payments due to the Defaulting Party until such event of default is cured.
18.LIMITED WARRANTY 有限保证
The Seller gives no guarantees, conditions, warranties or representations, express or implied (whether by statute or otherwise), in relation to the quality, merchantability, fitness or suitability of the product for any particular purpose or otherwise, which extend beyond the description of the goods and any specifications contained in this contract and any such guarantees, conditions, warranties or representations which would otherwise be implied by statute (including without limitation by the Sale of Goods Act 1979) are hereby excluded.
19.LIMITATION OF LIABILITY 有限的责任
Neither the Seller nor the Buyer shall be liable, whether in contract or in tort or otherwise, for indirect, consequential or special damages or losses of whatsoever nature, however caused.
Insofar as not inconsistent herewith INCOTERMS 2010 (and any later amendments thereto) shall apply to this contract.
21.CHANGE OF CONTROL 控制权转换
In the event of any actual or prospective change in the organisation, control or management of the Buyer or the Seller, including without limitation, a change to the majority shareholding or privatisation or equivalent process, subject always to clause 17. DEFAULT, this contract will not be changed or in any way modified and shall continue in full force and effect.
No notice or communication with respect to this contract shall be effective unless it is given in the English language in writing and delivered or sent by facsimile or electronic mail to the other party at the address set out herein, or to such other address as each party otherwise notifies the other party.
Notices given by first class mail shall be deemed to have been delivered when received. Notices sent by facsimile or electronic mail shall be deemed to have been received upon completion of successful transmission if sent during normal office hours at the place of receipt. Any facsimile or electronic mail transmitted outside of normal office hours at the place of receipt shall be deemed to have been received on the next Business Day.
All notices, requests and other communications hereunder shall be addressed: 所有通知、请求和通讯将被发送至以下地址：
If to Buyer: 买方
If to Seller: 卖方
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
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
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.
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。