Beruflich Dokumente
Kultur Dokumente
TERM
DETAILS
Buyer
INSERT NAME
General
1.
Add 1:
Add 2:
Add 3:
Contact No.: +
Email:
2.
Seller
in
association
with
The
Recitals
(a)
(b)
This Agreement sets out the terms on which the Seller agrees
to sell and the Buyer agrees to purchase Product.
4.
Product
5.
Product origin
Australia
6.
Delivery Terms
7.
Loading Port
8.
Discharge Port
9.
Quantity
(a)
(b)
1 - 10 August 2016
20 August 2016
14. Deposit +
Commissions
Quality - Lump
15. Agreed
Specifications
Chemical
(Dry Basis)
composition
Iron (Fe)
58.0% minimum
Silica (SiO2)
6.50% maximum
Alumina (Al2O3)
2.00% maximum
Sulphur (S)
0.02% maximum
Phosphorus (P)
0.06% maximum
Loss on ignition
8.00% indicative
Moisture
Percentage
wet state)
3.70% indicative
Physical specification
Percentage
Basis)
2% maximum
7% maximum
by
by
weight
(natural
weight
(Natural
(b)
(fractions pro-rata)
Less than 56%
()
()
(fractions pro-rata).
Adjustment for chemical specifications
If the shipment of Product under this Agreement contains elements
exceeding the Agreed Specifications, the Buyer must accept delivery
but an adjustment will be made to the Base Price as follows:
Element
Alumina
Silica
Phosphorus
Sulphur
General Conditions
CONTENTS
CLAUSE
2.
PAGE
INTERPRETATION
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
Definitions
1
Rules for interpreting this Agreement 3
Non Business Days
4
The rule about "contra proferentem"
4
Requirement on a person not a party to this Agreement
Multiple Parties 4
Consequential loss excluded
4
Relationship of the Parties
4
Inconsistency with Contract Specifics 4
3.
4.
SHIPMENT
4.1
4.2
4.3
5.
6.
7.
9.
10.
9
9
10
12
PAYMENT
10.1
10.2
10.3
10.4
10
10
LETTER OF CREDIT
9.1
9.2
9.3
8.
WEIGHING
6.1
6.2
6.3
13
Provisional payment
13
Payment Adjustment
13
Final Payment 13
No-set off, counterclaim or deduction
14
12
11
11.
DOCUMENTS
11.1
11.2
12.
14
Risk
Title
15
15
13.
INSURANCE
15
14.
FORCE MAJEURE
14.1
14.2
14.3
14.4
14.5
14.6
14.7
15.
17.
ARBITRATION
18
18.
DEFAULT
19
18.1
18.2
20
20
20
Undertaking
20
Permitted disclosures
20
21
23.
Termination events
Effect of termination
22.
17
Default Events 19
Consequence of Default Event 19
CONFIDENTIALITY
20.1
20.2
21.
17
TERMINATION 20
19.1
19.2
20.
15
INDEPENDENT EXPERT 17
16.1
16.2
16.3
19.
15
DISPUTE RESOLUTION 17
15.1
15.2
16.
14
14
21
21
22
22
GENERAL
23
17
23.1
23.2
23.3
23.4
23.5
23.6
23.7
23.8
23.9
Governing law 23
Entire agreement
Vienna Convention
Assignment
24
Amendments 24
Waiver of rights24
Costs and stamp duty
Severability
25
Counterparts 25
24
24
24
Schedule
1
2.
INTERPRETATION
1.2
Definitions
Agreed Specifications means the "Agreed Specifications" set out in the
Contract Specifics.
Agreement means this agreement and includes the Contract Specifics, General
Terms and all schedules and annexures.
Base Iron Content means the minimum iron content for Product as specified in
the Agreed Specifications.
Business Day means a day which is not a Saturday, Sunday or a gazetted public
holiday in Western Australia, Singapore, Hong Kong and the Peoples Republic of
China.
Buyer has the meaning given in the Contract Specifics.
Buyer's Sampler has the meaning given in clause 6.2(a).
Buyer's Statement of Final Account has the meaning given in clause 4.2(a)
(iv).
Buy Documents has the meaning given in clause 4.2(a).
Certificate of Origin means a certificate describing the Product and tonnes
loaded by the Seller in accordance with the rules of the country of origin.
CFR has the same meaning as defined in the Incoterms 2010.
CIQ means State Administration for Entry-Exit Inspection and Quarantine for the
People's Republic of China.
Confidential Information means the terms and conditions of this Agreement
and all information flowing to any Party, or owned by or in respect of any Party,
in connection with this Agreement.
Contract Specifics means the schedule of agreement information with that
name forming part of this Agreement.
Corporations Act means the Corporations Act 2001 (Cth).
Discharge Port has the meaning given in the Contract Specifics.
Dry Basis means iron ore dried at 105 degrees celsius.
Dry Metric Tonne (and DMT) means a Metric Tonne of iron ore on a Dry Basis.
Final Invoice has the meaning given in clause 3.3(b)(i).
Force Majeure has the meaning given in clause 11.1.
General Terms means the provisions forming part of the "General Terms" of this
Agreement.
21 July 2016
(b)
(c)
who
GST Law has the same meaning as "GST Law" in the A New Tax System (Goods
and Services Tax) Act 1999.
Incoterms 2010 means the International Rules for the Interpretation of Trade
Terms of the International Chamber of Commerce 2010 Edition.
LC Issuing Bank has the meaning given in clause 8.1(a).
Letter of Credit means the irrevocable letter of credit referred to in clause
8.1(a).
Loading Port has the meaning given in the Contract Specifics.
Metric Tonne means 1,000 kilograms.
Notice of Readiness means a notice of readiness to unload a vessel at the
Discharge Port.
Party means the Seller or the Buyer and Parties means both of them.
Price Adjustments has the meaning given in the Contract Specifics.
Product has the meaning given in the Contract Specifics.
Provisional Invoice has the meaning given in clause 8.4(a).
Provisional Price means the "Provisional Price" as calculated in accordance with
the Contract Specifics.
Quarter means a period of three consecutive calendar months commencing on 1
January, 1 April, 1 July or 1 October.
Related Corporation has the same meaning given to the term "related body
corporate" in the Corporations Act.
Sale Documents has the meaning given in clause 4.1.
Seller has the meaning given in the Contract Specifics.
Stevedore Damage has the meaning given in clause 4.5
US Dollars or US$ means the lawful currency of the United States of America.
Vessel Nomination Notice has the meaning given in clause 3.2(b).
Vessel Rejection Notice has the meaning given in clause 3.2(c).
21 July 2016
A reference to:
(i)
(ii)
(iii)
(iv)
(v)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
21 July 2016
1.4
(i)
other
binding
(j)
(k)
(l)
Terms defined in the GST Law have the same meaning in this document
unless otherwise defined in this document.
(m)
1.5
(a)
if the act involves a payment that is due on demand, the person must do it
on or by the next Business Day; and
(b)
1.6
1.7
Multiple Parties
If a Party to this Agreement is made up of more than one person, or a term is
used in this Agreement to refer to more than one Party:
(a)
(b)
any other reference to that Party or term is a reference to each of those persons
separately, so that (for example) a representation, warranty or undertaking is
given by each of them separately.
1.8
21 July 2016
1.9
(a)
No Party in any capacity under this Agreement will be liable to any other
Party for any consequential losses or damages of any nature in relation to
this Agreement however caused and whether or not foreseeable at the date
of this Agreement.
(b)
Clause 1.8(a) does not limit the Seller's right to recover the price of any
Product where the Buyer has failed to pay for, or to take delivery of,
Product in accordance with the terms of this Agreement.
1.10
2.
3.
SHIPMENT
3.1
(b)
(c)
(i)
the dates specified as the Loading Port Laycan sets out (as at
date of this Agreement) the indicative dates during which
Quantity of Product will be loaded at the Loading Port for
purpose of procuring the shipment of such Quantity of Product to
Discharge Port by the Latest Shipment Date; and
the
the
the
the
(ii)
the Seller may, at any time, amend the Loading Port Laycan as it
sees fit, by providing written notice to the Buyer and any such
amendment will be effective as of the date of the written notice.
load (or to procure the loading of) any vessel for any shipment of
Product; or
21 July 2016
(iii)
3.2
Vessel nomination
(a)
suitable for grab discharge at one or two safe berths and one safe
port at the Discharge Port; and
(ii)
as nominated by the Seller and notified to the Buyer in accordance with this clause
3.2.
(b)
(c)
3.3
(ii)
(iii)
If the Buyer has genuine concerns about the use of nominated vessel to
transport the shipment of Product (such concerns must be on grounds
related solely to the seaworthiness of the vessel or the inability of the
nominated vessel to arrive and berth safely at the Discharge Port), the
Buyer may issue a notice (Vessel Rejection Notice) stating those genuine
concerns and requesting the Seller to nominate another vessel, provided
that the Buyer gives the Seller such notice within 36 hours of the Vessel
Nomination Notice. If the Seller agrees that the genuine concerns stated in
the Vessel Rejection Notice are valid, the Seller must nominate and submit
another Vessel Nomination Notice under clause 3.2(b) as soon as
reasonably practicable.
Advice of shipment
(a)
21 July 2016
The Seller must, as soon as reasonably practicable and in any event within
5 Business Days following departure from the Loading Port of a vessel
carrying Product under this Agreement, notify the Buyer of:
(i)
(ii)
(b)
(iii)
(iv)
(v)
4.
4.1
4.2
provide safe mooring facilities and berths at the Discharge Port (such
berths to be nominated by the Buyer no later than 7 days prior to
the vessel reaching Chinese waters) at which a vessel provided
under and in accordance with clause 2 may safely reach and leave
and at which such a vessel can lie safely afloat for the purpose of
unloading Product;
(ii)
ensure that such berths are free and accessible at all times by the
vessel for delivery of Product; and
(iii)
(b)
The Buyer agrees to indemnify the Seller against any liability, costs,
expense, damage or injury arising from the Buyer's failure to provide such
safe facilities and berths in accordance with this clause 4.1.
(c)
If there is any danger that a vessel may be unable to approach or lie safely
afloat at any of the Buyer's nominated discharging berths:
(i)
(ii)
(iii)
Import licences
The Buyer must obtain, at its own risk and expense, any import licences or other
official authorisation with respect to the import of Product under this Agreement
notwithstanding that such licence requirement may arise from a change in
legislation after the date of this Agreement.
21 July 2016
4.3
Notice of Readiness
(a)
After a vessel has arrived at or off the Discharge Port, the Seller must
(subject to clause 3.1(c)) procure that the master of the vessel (or the
vessel's agent) tenders a Notice of Readiness to the Buyer (or its
nominated agent).
(b)
(c)
4.4
(ii)
(iii)
(iv)
In the event that free pratique and/or customs clearance is not granted, or
the vessel is not ready in all respects to discharge, the previously tendered
Notice of Readiness will be deemed null and void and a new Notice of
Readiness will be tendered when the vessel has complied with the
aforementioned conditions.
(b)
4.5
(i)
The Buyer must cause all Product sold and delivered under this Agreement
to be discharged and taken free from the vessel's holds:
(i)
(ii)
The Buyer must appoint and pay for stevedores at the Discharge Port.
Stevedore Damage
At the discharge port, any damage to any part of the vessel caused by stevedores
during the discharge operation should be settled between the ship owner and the
responsible party. The buyer shall give customary assistance to the seller.
4.6
(b)
(c)
21 July 2016
(i)
all port charges associated with bringing the vessel alongside the
discharge berth; and
(ii)
The Buyer must pay all taxes that are imposed under non-Australian law on
Product sold under this Agreement.
4.7
4.8
(d)
The Buyer must procure that the Port Agent provide the Seller with as soon
as reasonably practicable following completion of discharge of the vessel,
an invoice setting out in reasonable detail any outstanding amount payable
on account of the actual amount incurred in respect of the fees and
expenses contemplated in clause 4.6(b) (including all supporting
documentation in respect of such fees and expenses).
(e)
The Seller must pay any amount due as set out in the final invoice issued in
accordance with clause 4.6(d) within 5 Business Days of receipt, provided
such invoices are sufficiently detailed for the purpose of clause 4.6(d) and
are otherwise to the Seller's reasonable satisfaction.
The discharge rate will be 30,000 WMT per weather working day of twenty
four (24) consecutive hours, Saturdays, Sundays and holidays included
(Discharge Rate).
(b)
Allowed laytime for each Discharge Port shall be calculated by dividing the
quantity stated on the relevant bill of lading by the Discharge Rate.
Counting of Laytime
(a)
twelve (12) hours after a valid Notice of Readiness has been given;
or
(ii)
(c)
(d)
(i)
(ii)
(B)
(e)
4.9
(ii)
(iii)
(iv)
Upon completion of discharge, the Seller will arrange for the master of the
vessel to sign on behalf of the Seller and a person designated by the Buyer
shall sign on behalf of the Buyer, a statement of facts which shall be the
basis of calculating laytime for discharging between the Parties.
The Buyer will pay the Seller demurrage on excess laytime used (if any) at
the market rate specified in the vessel nomination, per 24 hour day (pro
rated for part day).
(b)
The Seller will pay to the Buyer despatch on any laytime saved (if any) at
half the demurrage rate.
5.
WEIGHING
5.1
5.2
(ii)
(iii)
(b)
(c)
The Buyer may, at the Buyer's expense, have its representatives present at
the time of the weight determination under this clause 5.1.
The Buyer may, at the Buyer's expense, arrange for CIQ (or an alternative
third party as agreed by the Parties) to:
(i)
21 July 2016
(ii)
5.3
(b)
Subject to clause 5.3, the weight determined pursuant to clause 5.2(a) will
be final as to the weight (on a Wet Basis) of the shipment.
(c)
The final weight on a Dry Basis will be determined by deducting the free
moisture loss at 105 degrees celsius from the weight of such shipment on a
Wet Basis (as determined pursuant to clause 6.2).
(d)
The Seller may, at the Seller's expense, have its representatives present at
the time of the weight determination under this clause 5.2.
(e)
If the Buyer does not have the shipment weighed in accordance with this
clause 5.2 at the Discharge Port or if the Buyer's Certificate of Weight is not
provided to the Seller within the timeframe set out in clause 4.2(a), then
the Seller's Certificate of Weight will be regarded as final (and clause 5.3
will not apply) and the weight on a Wet Basis as specified in the Seller's
Certificate of Weight shall be used for determination of the Seller's Final
Invoice.
Weight difference
(a)
(b)
6.
6.1
(b)
6.2
(ii)
The Buyer may, at the Buyer's expense, have its representatives present at
the time of such sampling and analysis.
21 July 2016
At the Discharge Port, the Buyer at the Buyer's expense, may arrange for
CIQ (or an alternative third party as agreed by the Parties) (Buyer's
6.3
divide the sample into three parts one for the Buyer, one for the
Seller and one for the Buyer's Sampler;
(ii)
(iii)
(c)
(d)
The Seller may, at the Seller's expense, have its representatives present at
the time the Buyer's Sampler conducts the sampling and analysis
contemplated under this clause 6.2.
(e)
Analysis difference
(a)
(b)
(c)
(d)
Subject to clause 6.3(e), the Independent Expert's analysis for the relevant
elements at issue shall be final and binding on the Parties.
(e)
If for any reason, the Buyer's Sampler is unable to provide the sample
referred to in clause 6.3(a) for the Independent Expert's analysis pursuant
to clause 6.3(a), the specifications stipulated in the Seller's Certificate of
Quality shall be final and binding on the Parties.
21 July 2016
(f)
The costs of the Independent Expert for the purpose of this clause 6.3 shall
be for the account of the Party whose own analysis differs farther from the
Independent Expert's analysis and if the result of such analysis is the mean
of the analysis of Buyer and the analysis of Seller, then, such cost shall be
equally borne by both Parties.
7.
7.1
2.1
8.
LETTER OF CREDIT
8.1
8.2
The Buyer must, no later than 3pm Johannesburg, South African time on
the 27 July 2016, open with a prime commercial bank acceptable to the
Seller (LC Issuing Bank), an irrevocable letter of credit in favour of the
Seller (as first beneficiary):
(i)
(ii)
(b)
For the purpose of clause 8.1(a), the value of the shipment will be
calculated by multiplying the Quantity of Product (in DMT) with the Base
Price as per item 13 in the Contract Specifics.
(c)
The Buyer must pay all Letter of Credit opening charges and reimbursing
bank charges and the Seller must pay all banking charges arising outside of
the LC Issuing Bank.
(d)
The Buyer must provide the Seller with a copy of each Letter of Credit by
email or facsimile within 1 Business Day after its date of issue by the LC
Issuing Bank.
21 July 2016
8.3
(a)
remain open for a minimum of 100 days after the vessel is due to sail from
the Loading Port;
(b)
(c)
be denominated in US Dollars.
(b)
(c)
in the event that the opening value of the Letter of Credit (excluding the +10%
tolerance) becomes inadequate to cover such amounts at any relevant point in
time for any reason, including due to fluctuations in the Index Price.
3.
PAYMENT
3.1
Provisional payment
(a)
(b)
3.2
(ii)
Payment Adjustment
If at the end of each calendar month, there is a 5% or more price variation from
Provisional price, both parties agree to arrange for a second Provisional payment
to adjust for this difference. In this case, the Buyer or the Seller will prepare a
2nd Provisional invoice for the difference between the Provisional Payment and
100% value of such shipment, based on the elapsed months average price, which
will be paid by respective party within 7 business days of the date of the invoice
by telegraphic transfer.
3.3
Final Payment
21 July 2016
(a)
(b)
Subject to clauses 3.3(e) and 3.3(f), upon receipt of the Buy Documents,
the Seller must as soon as reasonably practicable prepare and issue to the
Buyer:
(i)
the final invoice applicable for that shipment, which shall be for an
amount of the final Base Price payable by the Buyer for that
shipment in excess of any provisional amount paid by the Buyer
pursuant to clause 3.1, such final Base Price to be calculated on the
basis of:
(A)
(B)
8.4
(c)
The Seller may make a drawing on the Letter of Credit for the amount set
out in the Final Invoice.
(d)
the Buyer must send a debit note to the Seller for the amount of
despatch payable (as calculated in accordance with clause 4.9); and
(ii)
the Seller must, within 14 Business Days of receipt of the debit note
referred to in 3.3(d)(i), pay the amount set out in such debit note by
way of electronic funds transfer to the Buyer's nominated account.
(e)
If any of the Buy Documents is not received by the Seller within 60 days
after completion of discharge, the Seller shall be entitled to issue the Final
Invoice based on the Sale Documents for that shipment and no subsequent
adjustment, which shall be final notwithstanding that the Buy Documents
may subsequently be received by the Seller after such time.
(f)
21 July 2016
4.
DOCUMENTS
4.1
a provisional invoice setting out the Provisional Price payable for the
shipment of Product (Provisional Invoice);
(b)
3/3 of the original set of Clean on Board Third Party Bills of Lading; and
(c)
4.2
(ii)
(iii)
(iv)
a statement showing the final Base Price payable by the Buyer for
the relevant shipment under this Agreement (including any
applicable Price Adjustments) (Buyer's Statement of Final
Account), calculated on the basis of:
(A)
(B)
(d)
The Buyer must, on request from the Seller, send the Seller by email a copy
of the Buy Documents.
9.
9.1
Risk
(a)
The risk in Product passes to the Buyer when Product crosses the ship's rail
at the Loading Port.
(b)
In the event of partial or total loss of any Product after it crosses the ship's
rail at the Loading Port, the Seller will remain entitled to 100% of the
amount set out in the Provisional Invoice by drawing under the Letter of
Credit for payment of such amount.
21 July 2016
9.2
Title
Title passes from the Seller to the Buyer upon payment being effected in
accordance with clause 3.1 of this Agreement.
10.
INSURANCE
(a)
Insurance must be effected by the Buyer from the time Product has crossed
the ship's rail at the Loading Port.
(b)
Over aged premium (as quoted by Lloyds of London) shall be borne by the
Seller if the vessel is over 25 years old.
11.
FORCE MAJEURE
11.1
an act of God;
(b)
(c)
(d)
(e)
blockade;
(f)
(g)
(h)
explosion;
(i)
epidemic;
(j)
(k)
act of terrorism;
(l)
embargoes;
(a)
(b)
(c)
any shutdown of, or interruption to, the Seller's mines or the Loading Port;
(d)
21 July 2016
(e)
11.2
11.3
(a)
(b)
(c)
(d)
Relief
If, as a direct result of Force Majeure, an Affected Party becomes unable, wholly
or in part, to perform any of its obligations under this Agreement:
11.4
11.5
(a)
that Affected Party is to give the other Party prompt notice of the Force
Majeure with reasonably full particulars and, insofar as is known to it, the
probable extent to which it will be unable to perform, or be delayed in
performing any obligation;
(b)
(c)
subject to clause 11.4, that Affected Party must use all reasonable
endeavours to promptly overcome or remove the effect of the Force
Majeure to the extent it is possible to do so.
The Parties acknowledge that the Seller may enter into, or may have
entered into, contracts with other customers for the sale and delivery of
Product.
(b)
If the Seller is the Affected Party and, due to Force Majeure, is prevented or
hindered from supplying Product to the Buyer and its other customers
during the period of Force Majeure, the Seller may, subject to the terms of
this clause 11, allocate its supplies of Product available for delivery between
all of its customers (including the Buyer) as it thinks fit and at its sole
discretion, including (without limitation) by reducing the supply of Product
to the Buyer whilst supplying Product to other customers at the same
delivery location or otherwise.
(c)
The Seller shall be relieved from supplying to the Buyer any difference
between the quantity of Product contracted to be delivered to the Buyer
under this Agreement and any quantity of Product allocated to the Buyer
pursuant to this clause 11.4.
Labour disputes
21 July 2016
11.6
(a)
settle any strike, or other labour dispute on terms contrary to its wishes; or
(b)
Resumption
The obligation of the Affected Party to perform its obligations resumes as soon as
it is no longer affected by the Force Majeure.
11.7
(b)
12.
DISPUTE RESOLUTION
12.1
12.2
(ii)
13.
INDEPENDENT EXPERT
13.1
13.2
21 July 2016
13.3
14.
(a)
(b)
(c)
(ii)
not have any interest which conflicts or may conflict with his or her
appointment as an Independent Expert in relation to the Dispute.
Subject to this clause 13.3, the Independent Expert and the relevant
Parties are to conduct the process in accordance with the Institute of
Arbitrators & Mediators Australia Expert Determination Rules as at the date
of the appointment of the Independent Expert, including Schedules A and B
to those rules.
(b)
The Independent Expert will accept oral and written submissions from the
Parties to the dispute or difference and make a written determination in
relation to the matters in dispute within 30 days of his or her appointment
unless the Independent Expert certifies that the matter is complex in which
case the period will be extended to no more than 60 days.
(c)
(d)
(e)
ARBITRATION
(a)
21 July 2016
(b)
Where there is any conflict between the Arbitration Rules and this clause
14, the latter prevails.
(c)
(d)
(e)
(f)
(g)
Any arbitral award is final and binding on the Parties and may be enforced
by the courts of any relevant country.
(h)
The Parties must carry out any arbitral award without delay. The arbitral
tribunal must state the reasons upon which the award is based.
(i)
(j)
15.
DEFAULT
15.1
Default Events
For the purpose of this clause 14.1(j), a "Default Event" occurs in respect of a
Party (a Defaulting Party) when that Party:
(a)
fails to comply with any material obligation under this Agreement (which
shall include any payment obligation or any obligation under clause 8 of this
Agreement) and such failure remains unremedied for 3 (three) Business
Days after written notice by the other Party;
(b)
(c)
(d)
21 July 2016
(e)
15.2
(fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff
terminate this Agreement upon written notice to the Defaulting Party;
(a)
(b)
withhold and/or offset any payments due to the Defaulting Party until such
Default Event is remedied; and/or
(c)
repossess any Product which has been delivered but has not been
paid for and/or
(ii)
without prejudice to any other rights or remedies available to the Seller (as the
Non-Defaulting Party) under this Agreement or at law.
16.
TERMINATION
16.1
Termination events
(a)
21 July 2016
This Agreement shall immediately terminate upon the earliest to occur of:
(i)
(ii)
(iii)
(b)
16.2
this clause 16 represents the sole and exclusive bases on which this
Agreement may be terminated; and
(ii)
Effect of termination
(a)
(b)
17.
CONFIDENTIALITY
17.1
Undertaking
Each Party undertakes that it must not, and will procure that its Related
Corporations do not:
17.2
(a)
(b)
Permitted disclosures
A Party is permitted to disclose Confidential Information:
(a)
(b)
(c)
(i)
(ii)
18.
18.1
21 July 2016
18.2
GST pass on
If GST is or will be payable on a supply made under or in connection with this
Agreement, to the extent that the consideration otherwise provided for that
supply under this document is not stated to include an amount in respect of GST
on the supply:
18.3
(a)
the consideration otherwise provided for that supply under this document is
increased by the amount of that GST; and
(b)
the recipient must make payment of the increase as and when the
consideration otherwise provided for, or relevant part of it, must be paid or
provided or, if the consideration has already been paid or provided, within 7
days of receiving a written demand from the supplier.
18.4
(a)
may recover from the recipient the amount by which the amount of GST on
the supply exceeds the amount already recovered by giving 7 days written
notice; or
(b)
must refund to the recipient the amount by which the amount already
recovered exceeds the amount of GST on the supply to the extent that the
supplier is entitled to a refund or credit from the Commissioner of Taxation;
and
(c)
18.5
(b)
The Parties acknowledge that they expect supplies made under this
Agreement will be exempt from GST where the conditions in subdivision
38E of the GST Law are met. If the exemption available under subdivision
21 July 2016
38E of the GST Law is not applicable due to a change in GST Law, either
Party may terminate this Agreement by giving 30 days notice to the other
Party, along with documentation supporting the claim that GST will be
payable. On termination of this Agreement, the Parties will be discharged
from any further obligations or liabilities under this Agreement without
prejudice to any rights, obligations or liabilities which accrued up to the
date of termination.
18.6
ABN withholding
All payments made under this document are subject to any withholding required
by law.
18.7
(b)
The parties each indemnify the other against all GST, and losses, liabilities
and expenses (including legal liabilities on a full indemnity basis) that the
other incurs (directly or indirectly) as a result of a breach of a warranty or
other provision in this document relating to GST.
19.
19.1
19.2
(a)
in writing;
(b)
(c)
(d)
marked for the attention of the person identified for the relevant Party in
the Contract Specifics or, if the recipient has notified otherwise, then
marked for attention in the way last notified.
Communications sent by email need not be marked for attention in the way
stated in clause 19.1(d), however, the email:
(i)
21 July 2016
must state the first and last name of the sender; and
(ii)
(b)
19.3
must state that the email constitutes a notice for the purpose of this
Agreement.
Delivery
Communications must be:
(a)
(b)
sent by prepaid ordinary post (airmail if appropriate) to the address set out
or referred to in the Contract Specifics;
(c)
sent by fax to the fax number set out or referred to in the Contract
Specifics;
(d)
sent by email to the address set out or referred to in the Contract Specifics;
or
(e)
provided that if the intended recipient has notified a changed address, fax
number or email address, then communications must be to that address, fax
number or email address.
19.4
When effective
Communications take effect from the time they are received or taken to be
received under clause 19.5 (whichever happens first) unless a later time is
specified.
19.5
if sent by post, three days after posting (or seven days after posting if sent
from one country to another); or
(b)
if sent by fax, at the time shown in the transmission report as the time that
the whole fax was sent; or
(c)
if sent by email:
(i)
(ii)
four hours after the time sent (as recorded on the device from which
the sender sent the email) unless the sender receives an automated
message that the email has not been delivered,
19.6
21 July 2016
(a)
20.
GENERAL
20.1
Governing law
20.2
(a)
(b)
(ii)
agree that they may not object to any suit, action or proceeding
commenced under or in connection with this Agreement on the basis
that the courts of Western Australia are not an appropriate forum.
Entire agreement
This Agreement contains the entire agreement between the Parties about its
subject matter and supersedes all agreements, undertakings, negotiations and
discussions, whether oral or written, of the Parties
20.3
Vienna Convention
The Parties hereby exclude any application of the United Nations Convention on
Contracts for the International Sale of Goods adopted at Vienna, Austria, on 10
April 1980 as given effect by the Sale of Goods (Vienna Convention) Act 1986
(WA) to the sale and purchase of Product under this Agreement.
20.4
Assignment
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 Agreement in full or in part, except
that the Buyer and its assigns may without such consent assign all or a portion of
their rights to receive and obtain payment under this Agreement in connection
with bank funding arrangements.
20.5
Amendments
No variation, modification or amendment of all or any part of this Agreement will
be effective unless in writing and signed by or on behalf of each Party.
20.6
Waiver of rights
A right may only be waived in writing, signed by the Party giving the waiver, and:
(a)
21 July 2016
20.7
(b)
(c)
the exercise of a right does not prevent any further exercise of that right or
of any other right.
20.8
20.9
Severability
(a)
(b)
Counterparts
This Agreement may be executed in any number of counterparts and by the
Parties on separate counterparts, each of which will be an original but all of
which together will constitute one and the same instrument. This Agreement will
not take effect until each Party has executed at least one counterpart.
21 July 2016
SCHEDULE 1
PRO-FORMA IRREVOCABLE LETTER OF CREDIT
Advising Bank
Form
Documentary
Credit
of
IRREVOCABLE
Beneficiary
???????? Limited
?????? Square, Level ??
??? ?????? Street
????? WA 6000
Currency
Amount
Code,
Available
By..
With
Drafts at
AT SIGHT
Partial Shipments
NOT ALLOWED
Transhipment
NOT ALLOWED
Port of Loading
For Transportation
To
Latest
Date
Shipment
of
20 August 2016
Description
Goods
of
21 July 2016
Base Price
Documents
Required
Additional
Conditions
1.
2.
3.
4.
5.
1.
2.
3.
4.
5.
6.
7.
8.
9.
IN
WMT
IN
EXCESS
OF
10. FINAL INVOICE TAKING THE MEAN RESULT OF LOADING PORT AND
DISCHARGE PORT IN THE WET WEIGHT AND/OR FE CONTENT
AND/OR MOISTURE CONTENT AND/OR SIO2 CONTENT AND/OR
Al2O3 CONTENT FOR CALCULATION IN THE FINAL CARGO VALUE IS
ACCEPTABLE, PROVIDED THE DIFFERENCE OF THOSE RESULTS IS
OVER 0.5 PCT.
11. FINAL INVOICE TAKING THE MEAN RESULT OF LOADING PORT AND
DISCHARGE PORT IN THE P CONTENT AND/OR THE S CONTENT FOR
CALCULATION IN THE FINAL CARGO VALUE IS ACCEPTABLE,
21 July 2016
(ON
DRY
BASIS,
PECENTAGE
BY
Confirmation
Instructions
Charges
ALL BANKING CHARGES OUTSIDE THE ISSUING BANK ARE FOR THE
BENEFICIARY'S ACCOUNT.
21 July 2016
EXECUTED as an agreement.
Executed by LC Mining Projects Limited
Irene Holtzhausen
Executed by LS METAL
STEEL GROUP (BUYER)
AND
LEADER
21 July 2016