International Materials
I. Analysis
Upon delivery of the Product as per the applicable Incoterm, SELLER shall, at its sole cost and expense, provide to BUYER the most recent Certificate of Analysis based on vessel loading at origin or barge composite (at SELLER’s discretion). Independent Surveyor to be appointed at Buyer’s discretion.
Results shall be final and binding, without prejudice to Buyer’s right to bring a quality claim in accordance with this Agreement.
BUYER shall have the right to sample the Product at Load Port or Discharge Port and retain a sample in the event of a quality issue or claim.
In the event of any quality claim, SELLER and BUYER shall mutually consult to reconcile such differences. In the event any quality claim cannot be mutually resolved reasonably, the protocol set forth in Article XIV Arbitration shall be followed.
This shall be the sole and exclusive remedy of the parties with respect to or arising out of quality disputes.
II. Weight
The Bill of Lading quantity shall be the quantity determined by draft survey performed at loading port or origin location by a recognized, independent surveyor (SGS or similar) hired by SELLER. That surveyor shall also issue a Certificate of Weight (“Certificate of Weight”) with the same quantity shown in the Bill of Lading.
The quantity stated on the Bill of Lading shall be final and binding except in the case of fraud or manifest error.
III. Barge Deliveries
SELLER shall load Product onto barges provided by and paid for by BUYER.
Should river or navigational conditions prevent barges from reaching BUYER’s assigned Delivery Point, barges may either be diverted to an accessible destination or will go on placement at a location of the BUYER’s/carrier’s choosing at market storage/demurrage rates at the time. Any fees associated with the diversion or movement to placement location will be for account of BUYER. Any other costs resulting from river or navigational conditions, including but not limited to dead freight, will be the responsibility of the BUYER.
IV. Equipment/Unsafe Conditions
Notwithstanding anything in the Force Majeure clause, BUYER shall have the continuing right to reject any equipment, facilities, or conditions it reasonably deems unsafe or unsuitable for loading, unloading, or handling the Product. Such rejection shall not constitute a Force Majeure Event. BUYER may reject, in its reasonable discretion, any railcars, trucks, transports, barges, vessels, containers or storage facilities presented by SELLER for loading, unloading, or transfer of Product that present, or may present, an unsafe or non-compliant condition. BUYER may also refuse to load, unload, transfer or otherwise handle the Product under any conditions which it determines, in good faith, to be unsafe or potentially unsafe, including, but not limited to any conditions arising from the Product, drivers, personnel, equipment, procedures and/or adverse weather conditions. Where practicable, BUYER shall use commercially reasonable efforts to notify SELLER of the basis for such rejection or refusal and propose alternative arrangements or conditions under which performance may proceed safely. Any delay, cost, or loss incurred by BUYER due to such rejection or refusal shall be solely for SELLER’s account.
V. Warranties
SELLER warrants that the Product conforms to the descriptions set forth in this Agreement under “Quality” and also affirms hereby a warranty of merchantability for the Product. Furthermore, SELLER warrants that has title to the Product at the time of delivery, and that is fully able to transfer the clean and free title to BUYER as per this Agreement.
SELLER shall provide BUYER upon delivery and always upon request with any safety, handling, or warning information (including Safety Data Sheets) received from the manufacturer.
VI. Limitation on Claims and Damages
Neither SELLER nor BUYER shall be liable for any special, punitive, exemplary, indirect or consequential damages and/or loss of profits, loss of production or losses arising from shutdown of plants or inability to perform sales or any other contract(s) arising out of or in connection with the performance, non-performance or any breach of its obligations hereunder or otherwise. If BUYER asserts a claim, BUYER shall provide written notice of the same to SELLER.
VII. Taxes
All existing and future export duties, taxes, charges and fees levied by the government of the country of export on the Product and freight relating to the Product, including but not limited to the use of port installations and local port loading fees sold pursuant to this Agreement shall be paid by the SELLER.
All existing and future import duties, taxes, customs charges, tariffs, and fees levied by the government of the United States in connection with the importation and delivery of the Product pursuant to this Agreement shall also be the responsibility of the SELLER. BUYER shall be responsible only for any taxes imposed after delivery, such as sales, use, or value-added taxes arising solely from BUYER’s resale or use of the Product after delivery.
VIII. SELLER’s Acts or Omissions
If BUYER’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of SELLER or its agents, subcontractors, consultants or employees, BUYER shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by SELLER, in each case, to the extent arising directly or indirectly from such prevention or delay.
IX. New or Changed Regulations
BUYER is entering into this Agreement in reliance on the laws, rules, regulations, decrees, impositions, concessions, and other arrangements of all governmental instrumentalities (collectively, “Regulations”), being proposed, considered, and/or in effect on the date hereof which affect the transaction covered and the Product purchased hereunder including, without limitation, the production, gathering, manufacture, supply, transportation, and delivery of such Product. In the event that any of the Regulations are changed or new Regulations become effective during the term of this Agreement, and such changed or new Regulation (a) is not covered by another provision of this Agreement and (b) adversely impacts BUYER or BUYER’s receiver(s)’s ability to lift and/or accept delivery of the Product under this Agreement, BUYER shall have the option to terminate the Agreement as well as any not yet performed Purchase Confirmation hereunder without incurring any liability or obligations to SELLER.
X. Interpretation
The ICC International Commercial Terms abbreviated as INCOTERMS 2020 and as amended, shall apply to this Agreement.
XI. Title and Risk
Risk and title shall both pass from SELLER to BUYER at the place and time established by the INCOTERMS 2020 delivery term applicable to this Agreement for transfer of risk.
XII. Indemnification
SELLER shall indemnify BUYER, BUYER’s affiliates, and employees, officers, directors, and other representatives from, and hold each harmless from and against any and all, actions, suits, proceedings, demands, causes of action, and claims, in connection therewith and promptly upon demand, pay or reimburse each of them for all costs losses, liabilities, damages or expenses of any kind or nature whatsoever, including without limitations the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending, or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to SELLER’s supply and/or BUYER’s or its agent’s or servant’s purchase, resale, receipt, use or transportation of the Product delivered hereunder, including, exposure thereto, unless the same be due to the sole negligence of BUYER.
XIII. Representations and Warranties
Each party is a company duly organized, validly existing and in good standing under the laws of its country of incorporation.
Each party affirms that it (a) has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder, and (b) has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder.
The execution and delivery of this Agreement and the performance of such party’s obligations hereunder (a) do not conflict with or violate any requirement of applicable laws or regulations, and (b) do not conflict with, or constitute a default under, any contractual obligation of such party.
XIV. Arbitration
The parties will make every effort to settle in an amicable way any dispute in connection with the interpretation of this Agreement. If the parties do not reach a settlement, then, upon notice by any party to the other, any unresolved dispute shall be settled by arbitration under the International Centre for Dispute Resolution (“ICDR”) in accordance with the provisions of its International Arbitration Rules. Each party shall select an arbitrator within ten days of commencement of the arbitration who shall serve as a neutral arbitrator and the two designated arbitrators shall select a third neutral arbitrator. If the two arbitrators cannot agree on selection of a third arbitrator within 20 days of their appointment, the ICDR shall select such arbitrator in accordance with the terms of this Agreement. The arbitration shall be conducted in accordance with the then existing rules of the ICDR. In the event that the amount in question is less than USD$500,000.00, the arbitration shall be conducted under the International Expedited Procedures of the ICDR. The arbitration shall be conducted in Miami, Florida, United States.
The Applicable Law shall be applied in any arbitration proceeding, without regard to the principles of conflict of laws.
The language of the arbitration shall be English.
Except as may be required by law, neither party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both of the parties.
To the extent SELLER may, in any jurisdiction, claim for itself or its assets immunity from suits, executions, liens (whether in aid of execution, before ruling or otherwise) or other legal process, SELLER hereby agrees not to claim and waives such immunity to the fullest extent permitted by the laws of that jurisdiction, intending in particular, but without limiting the generality of the foregoing, that this waiver shall apply in any proceedings occurring in the BUYER’s place of domicile, BUYER’s principal place of business, and/or the United States of America.
XV. Applicable Law
This Agreement shall be governed exclusively by the laws of the State of New York, USA and the federal maritime laws of the United States (“Applicable Law”), excluding their conflict of law provisions or choice of law rules which would otherwise result in the application of the laws of another jurisdiction, expressly excluding the application of the U.N. Convention on Contracts for the International Sale of Goods.
XVI. Force Majeure
Neither SELLER nor BUYER shall be responsible for any failure to fulfill their respective obligations, in whole or in part, under this Agreement if fulfillment has been prevented by Force Majeure, and the affected party shall be relieved of liability for failing to perform, wholly or in part, from the inception of such event of Force Majeure and during the continuance thereof. The foregoing right shall not be construed to limit or restrict either party’s right to invoke any other subsequent Force Majeure event (even if the other, subsequent Force Majeure event relates to events or circumstances similar or identical to the events or circumstances underlying the subject Force Majeure event) or other Force Majeure event which occurs during all or any portion of the subject Force Majeure event. For purposes hereof, “Force Majeure” means any unforeseeable circumstances whatsoever that are beyond the reasonable control of SELLER or BUYER, as the case may be, including without prejudice to the generality of the foregoing, but not limited to:
The party seeking relief under this Section (“Affected Party”) shall advise the other party in writing as soon as practicable of the circumstances causing the failure to fulfill its obligations and shall thereafter provide such information as is available regarding the progress and possible cessation of those circumstances, including, to the extent feasible, the details and the expected duration of the Force Majeure event. The Affected Party shall notify the other party when the Force Majeure event is terminated. Performance of obligations under this Agreement shall be resumed as soon as reasonably possible after such circumstances have ceased.
The Affected Party shall use all reasonable efforts to, and the other party shall use all reasonable efforts to assist the Affected Party in its efforts to, (i) attempt to prevent a Force Majeure and (ii) mitigate the effects of any Force Majeure.
In the event that either party sends a proper notice of an event of Force Majeure and such event of Force Majeure is not remedied within 90 days from the date that notice of such event is given, and so long as such event is continuing, either party may terminate a Purchase Confirmation or Contract by written notice to the other party, and neither party shall have any further liability to the other in respect of the Purchase Confirmation or Contract except for the rights and remedies previously accrued under the relevant agreements.
If the Agreement sets forth a prepayment requirement, then in the event of a Force Majeure, as defined herein, SELLER shall immediately reimburse BUYER, on a pro rata basis, any and all amounts prepaid by BUYER, if the Agreement is terminated due to the Force Majeure and pursuant to the terms and conditions of this Section.
XVII. Compliance
SELLER warrants that:
In the event of a breach of any of these warranties by SELLER, BUYER may both terminate this Agreement and recover from SELLER all damages and costs, including attorneys’ fees, penalties and fees incurred by it.
XVIII. Amendment and Modification
No amendment or modification of this Agreement shall be valid unless it is in writing and signed by both parties.
XIX. Waiver
No waiver of any provision of this Agreement by either party shall prevent such party from asserting such provisions in the event of a continuing or a subsequent breach by the other party. No waiver of any provision of this Agreement is effective unless explicitly set forth in writing and signed by both parties. No failure to exercise or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
XX. Term & Termination
The term of any Purchase Confirmation or Contract shall commence on the Effective Date and shall end on the date upon which all obligations hereunder have been fulfilled (“Term”).
In addition to any remedies that may be provided under these terms or the law, BUYER may terminate this Agreement with immediate effect upon written notice to SELLER, if SELLER: (a) has not otherwise performed or complied with any of these GTC, in whole or in part; or (b) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Furthermore, this Agreement may be terminated, in writing, by mutual consent of the BUYER and SELLER.
Termination of this Agreement by either party pursuant to the provisions hereof or pursuant to applicable law shall not relieve either party of any obligation or deprive it of any right arising prior to termination.
XXI. Assignment
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and consented assigns as set forth herein. Neither party may assign its rights or delegate its duties hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempt or delegation without such consent shall be ineffective.
XXII. Severability and Survivability
If any provision or portion of this Agreement shall be held invalid or unenforceable, such provision or portion of this Agreement shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect. The Parties will in such circumstances attempt in good faith to agree a suitable replacement provision or portion for inclusion in this Agreement.
XXIII. Notices
All notices, requests, consents, claims, demands, waivers, approvals or other communications (each a “Notice”) under this Agreement must be in writing and in the English language (including all accompanying documents), sent to the addresses set out in this Agreement otherwise specified in writing by the parties, and shall be deemed to have been duly given and received (i) if delivered by hand, at the time of actual delivery, or (ii) if sent by registered mail or courier, two (2) Business Days after posting or (iii) if sent or email, at the time of successful transmission.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
XXIV. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one instrument. Electronic signatures or scanned copies of signed originals shall be valid and acceptable evidence of this Agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
XXV. Relationship between the Parties
This Agreement does not create any partnership, joint venture or similar business relationship between the parties. Neither party is, nor shall be deemed, as a legal representative of the other party and neither party can assume or create any obligation, representation, warranty or guarantee, express or implied, on behalf of the other party for any purpose.
XXVI. Third Party Beneficiary
This Agreement, including, but not limited to, the indemnification provisions, benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person, customer, affiliate, stockholder, partner, member, director, officer or employee of any party hereto or any other person or entity, any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this.
XXVII. Confidentiality
It is hereby agreed that the terms of this Agreement including, without limitation, the price payable, any information relating to the Party’s trade, processes, contracts or arrangements involved in the party’s business, are confidential and that except for the purpose of enforcing this Agreement, neither Party shall disclose any of the terms of this Agreement to any third party other than to an Affiliate of a Party, unless such disclosure is required by applicable Law, or unless prior written approval has been obtained from the other Party for the relevant disclosure.
XXVIII. Entire Agreement
This Agreement, together with any riders, schedules, Annexes, or exhibits hereto constitutes the entire final agreement between BUYER and SELLER with respect to the purchase and sale described herein and supersedes all prior agreements, arrangements and stipulations in respect of the same subject, including the terms and conditions of any Purchase Order issued by SELLER. It is agreed that prior negotiations, representations, or understandings do not add to or modify the terms hereof.
The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be used in interpretation of this Agreement.