Draft Contract
SALES AND PURCHASE AGREEMENT (SPA)
as to the “International Trade Law” of the WTO and the
United Nations Convention on Contracts for the
International Sale of Goods (CISG)
Contract No.:
Contract Date:
This Sales and Purchase Agreement (SPA) hereinafter to as the "contract" is made and entered on this under ICC terms and conditions between
Company name:
Address:
Contact:
Telephone:
Facsimile:
E-mail:
Registration No:
Hereinafter referred to as the "seller"
and
Company name:
Address:
Contact:
Facsimile:
E-mail:
Registration No:
Hereinafter referred to as the "buyer"
WHEREAS THE SELLER WILL FULL CORPORATE AUTHORITY AND RESPONSIBILITY CERTIFIES, REPRESENTS, AND WARRANTS THAT HE/SHE CAN FULL FILL THE REQUIREMENTS OF THIS CONTRACT AND PROVIDE THE COMMODITY REFERERRED TO HEREIN IN TIME AND FOR THE TERMS AGREED UPON THEREAFTER.
WHEREAS THE BUYER HEREBY MAKES AND CONFIRMS THAT THEY ARE READY, WILLING AND ABLE TO PURCHASE THE FOLLOWING DESCRIBED COMMODITY UNDER THE TERMS AND CONDITIONS AS HEREUNDERS, SUBJECT TO EXECTIONOF THE CONTRACT FOR THE PURCHASE THE SAID COMMODITY
I. OBJECT
1.1 The seller herewith will sell and the buyer herewith will purchase xxxxxx ( in words: ............... ) MT of xxxxxxxxxx each month during one year, total xxxxxxxx (in words: ............) MT in accordance with the specifications and the quality described in this contract (hereinafter called "Goods").
1.2 The specification of the goods are as follows:
II. DELIVERY BASIS and TERMS
2.1 The ................................. will be available from Seller's factory to the loading port for loading and shipping from Seller's factory" 21 calendaristic days from the date of receipt of buyer´s LC. Packaging and transportation will be made by the seller from his factory/warehouse in …............ CIF Port .................
2.2. CIQ / Alex Stewart / Veritas or similar quality and quantity inspection reports are to be done by the seller on his own expenses.
2.3. If one of the contracting parties does not perform within 45, max. 60 days after signing the present contract, the other contracting party has the right to disembark from the contract. Claims for compensation are to be agreed separately between the two contracting parties.
2.4. Seller and buyer confirm legally binding and irrevocable that they will fulfill completely and entirely the “Working Agreement” with the consulting company, Dasinger. MS Consulting.
III. QUANTITY 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 Quantity of shipment shall be ...................... (......... thousand) in MTW (+/- 5%).
3.3 The total quantity of the goods to be delivered is about ................. (.................. thousand) MT (+/-5%)
3.4 The goods will be available to begin delivery to the Port of Hamburg or Rotterdam within 21-30 days maximum after the contract is signed and sealed by both parties and DLC issued;
3.5 The quantity of goods for each shipment and final weight will be confirmed by a certificate issued by CIQ / SGS / Alex Stewart (seller's cost).
3.6 Weight for invoicing purposes shall be established by the actual net weight as per the Quantity Survey Certificate.
IV. QUALITY of GOODS
4.1 The Goods shall conform to the Specification in Appendix No.1 hereto.
V. PRICE and TOTAL AMOUNT of CONTRACT
5.1 The Buyer shall pay the Seller in United States Dollars (USD).
5.2 The price of Goods is US$ ............................... per metric ton MTW CIF. This price shall be subject to negotiations every 12 months from the date of first shipment dependent on the prevailing market prices from the date of first shipment.
5.3 The total quantity to be delivered every month is about ................... (..... thousand) MTW during a year for the value of US$ …................... /MT +/- 5%. Total US$ …..................... (…......................................................... United States Dollars).
5.4 The unit price is fixed and firm for any quantity not exceeding the maximum permitted under the contract either delivered or stored.
VI. DELIVERY TERMS and PARTIES OBLIGATIONS
6.1 All provisions for delivery will be observed by both Buyer and Seller and any breaches in the provisions will be subject to penalties as per provisions under clauses in Sections XII and XIII respectively.
6.2 Should the Buyer in accordance with the procedures of the contract declare "breach of contract," due to the goods not meeting ISRI specification, then the Seller will, in accordance with Section XV of this Contract.
6.3 The Parties may agree upon the extension of the delivery period. On this event, the Party responsible for the delays will have to bear the costs associated with this extension including the costs of storage, if any.
VII. DELIVERY ACCEPTANCE of GOODS
7.1 The quantity of goods stated in the Bill of Lading shall be conclusive evidence of the quantity of goods being shipped. Shipping will begin at the earliest availability of a suitable vessel.
VIII. PAYMENT TERMS AND CONDITIONS
8.1 Payment from the buyer to the seller for the goods shall be by non-transferable, non-divisible, confirmed documentary letter of credit.
8.2. The documents for the DLC are:
1.A. Commercial invoice showing the name of the Bank which issues the Letter of Credit, date of LC,number of the LC, contract no, contract date, seal no., container(s) no and name of carrying vessel and shipment number.
1.B. Packing list, showing the name of the bank which issues the Letter of Credit, date of the LC, number of the LC, contract no., contract date, seal no., container(s) no. and name of carrying vessel and shipment number, number of the inspection report, gross and net weight and the number of the ocean Bill of Lading.
2.Clean on Board Ocean Bill of Lading or confirmation letter/storage receipt of the warehouse that the goods have been delivered there by the seller
3. Certificate of change of ownership
4. Certification of Weight and Quality issued by the manufacturer.
5. Certification of Weight and Quality to be issued by Alex Stewart / CIQ / SGS or similar with photos of the containers and container doors, photos of the goods, photos of the seal number and of the number of the containers
8.3. 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.
IX. FORCE MAJEURE
9.1 Both Buyer and Seller will be exonerated from their obligations under this contract in case of a Force Majeure event.
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 The Force Majeure event does not exonerate the Buyer from paying for the goods already delivered under documents in Section 8.
X. SELLER LIABILITY
10.1 Goods shall be considered in "full quantity" if within tolerance provided under Section III. Date of delivery" shall be the date on the Bill of Lading.
10.2 If Seller fails to deliver the full quantity of any consignment, Seller will only be paid for what is actually delivered.
XI. BUYER LIABILITY
11.1 Any sums which the Buyer is liable as penalties for which no provisions are made in this contract are made against invoice issued by Seller and by a top 25 rated bank transfer within maximum 10 (ten) banking days as for the submitted invoice date.
XII. LAW AND ARBITRATION
12.1 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.
12.2 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 Court in London, England.
12.3 The arbitration will be heard by one or more arbitrators appointed by mutual agreement of the parties and in accordance with the Rules and the Arbitration Act 1996. The seat of arbitration shall be London, England. The award shall be enforceable in any country, and a Letter Rogatory shall be deemed accepted without contest or protest.
12.4 The fee for arbitration shall be paid by the failing party.
XIII. CONTRACT TERMINATION
13.1 Either party may terminate the contract should the other side refuse performance of a substantive contractual obligation unless the MT 103 is not issues by the Buyer, but excluding refusal cause by a Force Majeure event
13.2 Notification of termination is to occur within 30 (thirty) calendar days following non- performance of contractual obligations.
13.3 No termination is permitted should any of the sides excuse their obligations within the stated 30 (thirty) days from the notification date.
XIX. ASSIGNMENT
14.1 Any of the sides is allowed to assign the contract or payment instrument in order to secure the performance of its obligations, only with the approval of the other party.
14.2 Any assignee or legal successor to either party shall assume all obligations and benefits of the contract.
14.3 Assignment is permitted under mandate issued & agreed jointly by both the Seller & Buyer.
XV. GENERAL PROVISIONS
1.1 Amendments to the present contract shall be valid only if agreed in writing and signed by duly authorized representatives of both sides.
15.2 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 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.
15.3 The language of the contract and the correspondence, notices, invoices, certificates, Bills of Lading shall be English and will refer to the Contract Number.
15.4 The contract comprises the present documents, Appendices and Addendums.
15.5 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.
15.6 The liability towards the other party is limited to penalties, charges, damages and remedies expressly stated in this contract. Neither side shall raise any claim on the other for losses of use, profit or contracts, indirect and consequential loss arising under the law of contract or tort including negligence and breach of duty.
15.7 All references to CIQ/CCIC/Alex Stewart throughout shall provide as follows: CIQ / CCIC/ Alex Stewart or any other internationally accepted Survey Agency agreed to by both parties.
15.8 The Seller acknowledges that the Buyer is a foreign corporation who has collateral business agreements with other countries in the performance of this contract including, the quantity and quality of goods, 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.
XVI. EFFECTIVE DATE
This contract shall come into effect when the Buyer and Seller have both initialed and signed the present document and its appendices. Facsimile or Electronic mail (e-mail) signatures on the contract are acceptable. The Contract shall terminate upon completion of the final shipment and payment thereof. This contract may be extended upon written agreement of Buyer and seller.
XVII. CONFIDENTIALITY AGREEMENT
17.1 Seller and Buyer 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).
17.2 Buyer shall not use the confidential information provided the Seller in such a way as to:
(a) Circumvent the Seller in the commercial dealings with any and all suppliers under the contract, or (b) Knowingly do anything to cause the Seller 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
(b) Do anything to circumvent the Seller in such a way as to put Seller at a commercial disadvantage with the suppliers or countries under this Contract.
17.3 Seller shall not use the confidential information provided by Buyer in such a way as to:
(a) Circumvent Buyer in the commercial dealings with the Consignee if introduced by the Buyer, o
(b) Knowingly do anything to cause Buyer to lose any fees or commissions if due or may become due under the present Contract and additional appendices, or
(c) Do anything to circumvent Buyer in such a way as to put Buyer at a commercial disadvantage with a consignee if existing,
17.4 Seller and Buyer shall keep each other fully informed about the progress of all current and future contract negotiations and about the performance of the contract.
17.5 Any breach of these provisions will entail payment of damages to the other party.
XVIII. NON-CIRCUMVENTION AGREEMENT
18.1 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.
18.2 The Parties shall maintain complete confidentiality regarding each other’s 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.
18.3 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 or entering into and to the best of their ability and assure each other that the original transaction codes established will not be altered or changed.
18.4 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.
18.6 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 is 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.
18.7 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.
18.8 Buyer irrevocably binds itself to provide any and all documentation requested by Seller, immediately and without delay, in connection with the sale/purchase of the aforementioned goods
18.9 Seller irrevocably binds itself to provide any and all documentation requested by Buyer, immediately and without delay, in connection with the sale/purchase of the aforementioned goods.
XIX. WORKING PROCEDURES
1. Seller´s consulting company issues this SCO for and behalf of the seller
2. Buyer issues LOI/ICPO on company paper with letterhead, signed and sealed
3. Seller´s consulting company sends to the buyer the draft contract for amendments
4. Buyer and seller sign and seal the contract and lodge it to their banks*
5. Buyer opens a non-operative DLC*
6. POP vs. POF bank to bank*
7. Seller´s loading*
8. Buyer´s LC gets operative after the presentation of the complete set of documents of the seller to the buyer
The POP consists of:
(a.) photos of the total quantity of the commodity/ies (copper wire scrap: bulks / copper cathodes and aluminium ingots: on pallets); on the photos, the actual date when they are done must be clearly seen (or: an actual daily newspaper must be put before/on the goods); the most simple and easiest way is to do a video clip on which the total quantity is recorded (the actual date must be clearly seen on the clip – but this is no problem, because nowadays each digital camera has this function).
This is only for the trial order – then our clients will send their representatives and they will do this photo/video documentation by themselves.
(b.) a quality analysis which must be done by an external, independent laboratory
(c.) a document, that the seller has ordered the containers
(d.) certificate of property
(e.) certificate of origin
(f.) certificate of export permission/export licence
The POF is the certification of the buyers´ banks/-s of availability of funds, such as MT199
7. Buyers´bank/-s will open a non-operative, non-divisible, non-transferable and irrevocable DLC in favour of the seller.
In the meantime, the seller will send the buyer/-s by DHL express courier 4 originals of the hard copies of the contract. The buyer/-s will sign and seal them too and return two of them.
8. Seller begins with the loading
The loading process will be supervised by the surveillance company who will document it by photos: goods being before the container – in the container – the sealed container.
On the photos, there must be clearly seen:
(a.) the seal of the surveillance company
(b.) the seal of the carrier/forwarding agent
(c.) the number/-s of the containers
The costs for the quality and quantity control are to be payed by the seller.
9. The seller will transport on his own costs and expenses the containers to the warehouse of SSL Tianjin or a warehouse of his own choice or to the warehouse of the carrier/forwarding agent.
The documents which must accompany the delivery to the warehouse are:
(a.) commercial invoice (2 x original)
(b.) packing list (2 x original)
(c.) final quality and quantity report of the surveillance company (CIQ / Alex Stewart or similar)
(d.) complete data (name, address) of the shipping agent
The warehouse will give the seller a confirmation, that the goods arrived there and that they have the containers in their custody. This document is to be sent to the buyer/-s, who will present it to their bank/-s.
The buyers´ bank/-s will do the payment (making the LC operative) only against the following documents which must be sent by the seller´s bank over DHL express courier to the buyers´ bank:
(1.) 4 x the original commercial invoice; on the invoice must be mentioned:
a. the LC number
b. the bank coordinates of the buyers´ bank/-s
c. contract number
d. contract data(
2.) 4 x the original packing list; on the list must be mentioned the items (a-d) of point no. 1 mentioned above
(3.) 4 x the original certificate of origin
(4.) 4 x the original of the surveillance report about quality and quantity (CIQ / Alex Stewart or similar)
(5.) 4 x the original of the confirmation receipt of the goods by the warehouse SSL or the warehouse of seller´s choice or the warehouse of seller´s shipping agent/carrier
BY SIGNING ON THE SIGNATURE PAGE THE PARTIES HEREBY ENTER INTO THIS AGREEMENT
SIGNATURE PAGE
Witness whereof, the parties hereto do set their hands and are witnessed with seals upon this Commodity Contract as of the Copper Cathodes. This contract must be acknowledged and signed by the buyer within 3 business days from the date of receipt from the seller, including by electronic mail.
For and on behalf of (seller)
Authorized Name:
Signature and company seal
Date:
For and on behalf of (buyer)
Authorized Name:
Signature and Company seal
Date:
Appendix No.1 - Product Specifications
Appendix No.2 - Delivery schedule
Appendix No.3 - Terms of Payment
1. Payment for the goods delivered under the present Contract to be made in USD against an non-transferable, non-divisible Documentary Letter of Credit (DLC) 100% at sight opened by S.W.I.F.T. in favour of the SUPPLIER’s with the ...................... advised and available with …..........
Address:
Тel.:
Fax:
Email:
Теlex:
SWIFT:
2. The L/C being opened under the present Contract is subject to the Uniform Customs and Practice for Documentary Credit (2006 revision), International Chamber of Commerce brochure No. 600.
3. The L/C is to be opened for the total amount of the Contract within 10 (ten) days after signing of the Contract and is to be valid not less than 10 (ten) months.
4. The terms of the L/C shall contain the right of Bank …... to claim proceeds from .......(reimbursement bank’s name), by S.W.I.F.T or telex.
5. The payment out of the L/C shall be made against presentation of the following documents to the Bank …....................................., …..........................
1) Bill of lading marked “Freight Prepaid” - 1 original and 1copy;
2) Signed and sealed invoice indicating the number of the Contract - 1 original and 1copy;
3) Certificate of origin - 1 original and 1 copy;
4) Export licence - 1 original and 1copy;
5) Assay Certificate - 1 original and 1copy;
6) Insurance policy – 1 original and 1 copy.
6. The L/C shall be provided of possibility or permission of transshipments.
7. If through the BUYER or his Bank fault the opening of L/C delays, the SUPPLIER shall have the right to prolong delivery terms, reject of the goods delivery or cancel the Contract.
8. If the terms of opened L/C do not correspond to the present Contract terms the BUYER at the SUPPLIER's instruction makes necessary alterations in the terms of the L/C at his expense.
All expenses connected with the opening, confirmation, extension, terms alteration and fulfillment of the L/C inside ______________ (country) shall be borne by the BUYER and outside _________________ (country) shall be borne by the SUPPLIER.
BUYER
Appendix No.4 - Information from Buyer’s register / company licence
Appendix No.5 - Copy of the ID card/passport of the manager, buyer
Appendix No.6 - Information from Seller’s register
Appendix No.7 - Copy of the ID card/passport of the manager, seller
Appendix No.8 - Original Product Datasheet of the seller