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Official contract for transactions in cocoa beans on F.O.B. NET LANDED WEIGHT TERMS
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Form n° 3 - Official contract for transactions in cocoa beans on F.O.B. NET LANDED WEIGHT terms
Company/trading name of seller : ____________
Company/trading name of buyer : ____________
Date : ____________
N° : ____________
We confirm the verbal sale which we made with you
through ____________
by order and on behalf of ____________ subject to the Market Rules of the Association française du commerce des cacaos and the conditions set out on both sides of this contract, which the parties declare they are familiar with and accept.
- Quantity : ____________ (tonnes of 1,000 kg).
With a tolerance of plus or minus 2%, on shipment, of which the weight shown on the bill of lading shall be proof.
- Cocoa : ____________
- Quality on arrival
Fair merchantable
- Price : ____________
- Packing
In new exportable, woven, non-returnable bags ; actual tare.
- Shipment period
From origin during : ____________
- Shipment port(s)
At seller's option ; to be declared not later than 45 days before the first day of the shipment period, failing which shipment to be effected from the major cocoa port of the country of origin.
- Port(s) of destination
At buyer's option ; to be declared not later than 15 days before the first day of the shipment period, by minimum quantities of 25 tonnes per port.
- Freight
At buyer's expense.
- Marine insurance
At buyer's expense.
- Payment (cf. clause # 5)
Net cash for 99 % of the amount of the provisional invoice.
(a) by irrevocable letter of credit, in conformity with the contractual conditions agreed by the parties.
(b) at first presentation in ____________ and in exchange for shipping documents complying with the conditions of this sale1.
- Special conditions2 : ____________
- Buyer's stamp and signature : ____________
- Seller's stamp and signature: ____________
F.O.B. NET LANDED WEIGHT terms
1. Freight
Freight shall be booked with first-class shipping companies, and the goods loaded on board vessels with A1 classitication on one of the registers listed in the "Police Française d'Assurance Maritime sur Facultés" by the "Syndicat Français de l'Assurance Maritime et Transports" in its most recent edition.
The seller shall bear the costs and risks relating to the goods until such time as they have passed the ship's rail at the port of shipment at origin.
The buyer shall advise the seller of the following :
- the name of the vessel (or her substitute) ;
- the name of the ship's agent at the port of shipment ;
- the estimated time of arrival (.E.T.A.") of the vessel at the port of shipment ;
- the quantity to be loaded on board ;
- the port of final destination.
The buyer shall send this advice to the seller not later than 15 days before the scheduled date of the vessel's arrival at the port of shipment, failing which the seller shall not be obliged to load the goods on the said vessel and may require the buyer to provide, within the required time, an advice regarding a vessel named as substitute.
In any event, if an advice has been forwerded promptly along the string of buyers and sellers, it shall be considered to have been received within the required time by the first seller.
The duration of the voyage shall be that of regular liners serving the ports of shipment and final destination stipulated in this contract.
If the loading cannot take place by the scheduled date :
- either because of late arrival of the vessel,
- or because of a refusal by the carrier to accept the goods on board (unless the seller is at fault),
the buyer shall reimburse the seller the extra costs incurred by the latter, from the second day following the latest "E.T.A." of the vessel notified in writing by the buyer to the seller up to the date of arrival in the port of shipment of the delayed or substituted vessel, provided that the goods have been tallied.
If the buyer is unable to nominate within the required time a vessel due to load during the shipment period stipulated in this contract, he shall be deemed to be in default.
If the seller is unable to make the goods available for loading onto the vessel nominated by the buyer, he shall be deemed to be in default. In the event of either party to this contract being in default, the other party may ask for the terms of the close-out ot this contract to be fixed by means of arbitration (with any price difference, additional costs, penalty and interest to be borne by the party in default).
2. Shipment
Shipment shall be effected by through bill(s) of lading specifying the goods, with the number of bags, shipping marks, and serial numbers if they exist.
Unless there is proof to the contrary, the bill of lading marked "loaded on board" shall be taken as proof of shipment and its date as the date of shipment.
3. Advice of shipment (declaration)
All advices of shipment shall be made by telex or telegram.
They shall specity : the origin of the goods, the name of the vessel, the tonnage involved, the number of bags, the shipping marks, the serial numbers (if they exist), the date and the number of the loaded on board bill of lading, the destination and the mode of transport (conventional, container, bolster, etc.).
Any significant error may be rectified up to the opening of the hatches.
Each declaration shall be for a minimum of 25 tonnes, except for the balance of the quantity sold. In the event of saveral bills of lading appearing on the same declaration, each bill of lading shall be considered to be a partial declaration. Each partial declaration shall be considered to be the execution of a separate contract.
A declaration which complies with the terms of this contract shall be irrevocable. The seller shall be entitled to declare a shipment against this contract ship lost or not lost, subject to him submitting proof of shipment and providing the buyer with all the shipping documents (cf. clause # 4). Each seller shall forward the declaration to his buyer promptly. Any costs and consequences which may result from failure to comply with the above obligations shall be borne by the party responsible.
4. Documents
The seller shall provide the buyer with the following documents :
- provisional invoice ;
- complete set of clean, negotiable, loaded on board bills of lading, marked "Freight payable at destination";
- certificate of origin or movement ;
- phytosanitary and fumigation certificates issued in accordance with the requirements of the country of export ;
- any certificates or documents required under international agreements and regulations applying to cocoa transactions between the country of origin and the country of destination.
5. Payment
a) By letter of credit issued by a first-class bank at the buyer's expense :
In any event, the seller's bank shall receive from the issuing bank notification of the opening of the credit before the commencement of the shipment period, failing which the buyer shall be deemed to be in default. The validity of the credit shall extend at least 21 days beyond the shipment period stipulated in this contract.
b) Payment against documents :
Payment shall be by net cash, without discount, at first presentation of the documents listed above. In the event of non-payment, by the buyer, for documents complying with the conditions of this sale, the seller may give him formal notice to effect payment within 48 hours. If payment is not made within that period, the seller may freely dispose of the goods and, declaring the buyer to be in default, may ask for the terms of the close-out of this contract to be fixed by means of arbitration (with any price difference, additional costs, penalty and interest to be borne by the buyer).
6. Supervision, weighing and sampling
Supervision, weighing and sampling of each bill of lading or delivery order shall be obligatory and carried out without interruption in the presence of the buyer's and the seller's supervisors at the port of destination specified in the bill of lading, at the buyer's expense with each party bearing the costs of its own supervisor, within a maximum of 15 days after the final day of landing of the vessel, failing which the seller may issue the final invoice on the basis of the bill of lading (or delivery order) weight Increased by 2%.
This method of invoicing shall not apply if the buyer is not responsible for the delay and if the buyer weighs the parcel without delay as soon as he has access to the goods. If the valid documents are not presented when the vessel arrives, the above mentioned period shall commence from the date of their presentation.
a) supervision : The buyer shall summon the supervisor appointed by the seller, failing which the latter may issue the final invoice on the bill of lading (or delivery order) weight incressed by 2%. If no supervisor is appointed by the seller before the arrival of the vessel, as delined by the responsible authority, the weighing and sampling carried out by the buyer's supervisor or by a sworn weigher or duly authorised company shall be binding on the parties.
b) weight : net landed, tolerance plus or minus 2% in relation to the quantity sold. In the event of the tolerance of minus 2% being exceeded, the total shortfall shall give rise to compensation calculated on the basis of the difference between the selling price and the market value on the final day of landing of the vessel, if the market value is higher than the selling price.
In the event of the tolerance of plus 2% being exceeded, the total excess shall remain for the account of the seller, if the buyer refuses to take delivery of the total excess at the market value on the final day of landing of the vessel.
c) sampling : Sealed samples shall be randomly drawn in the presence of the buyer's and the seller's supervisors on a minimum of 30 % of the sound landed bags, at the time of the weighing performed within the stipulated period, failing which the buyer shall lose the right to claim arbitration on quality. In the event of various shipping marks appearing on the bill of lading, each mark shall be sampled separately. The samples shall weigh a minimum of 2 kg and be packed and sealed in woven bags.
7. Final invoicing
The net landed weight to be invoiced shall be calculated by multiplying the average weight of the sound and full bags agreed on arrival by the number of bags shown on the bill of lading (or delivery order).
The seller shall issue the final invoice within 30 days from the last day of weighing and anach to it a copy of the supervisor's report. After this period, the invoice may be issued by the buyer.
If the seller has not appointed a supervisor, the buyer shall forward or have forwarded to the seller the document certitying the weight, issued by one of the parties indicated in lines 65-66 above within a period of 15 business days from the last day of weighing, falling which the seller may issue the invoice on the basis of the bill of lading (or delivery order) weight.
The balance shall be paid on receipt of the final invoice if it is in favour of the seller, or when the invoice is despatched if it is in favour of the buyer.
The interest owed, due as from the date of the final invoice but at the earliest from the 31st day after the weighing, shall be calculated by the creditor at the official bank rate applying to the currency of this contract, plus 2% per annum.
30 days after this date, the rate of interest chargeable shall be increased by half, but not above the maximum legal rate of interest.
8. Force Majeure
If shipment is prevented for reasons of unforeseeable and insurmountable events, the shipment period shall be automatically extended by one month.
If, at the end of such extension, shipment is still impossible for the reasons indicated above, the buyer shall have the option :
- either of terminating this contract in respect of any quantity not shipped,
- or of continuing to perfom this contract ; in this case, the treight booked shall be the first available after the day when the buyer is informed by the seller that shipment is now possible,
the shipment period shall be extended, such extension, however, being limited to five months ; when this period has elapsed, this contract shall be automatically cancelled for any quantity not shipped.
The above-mentioned option shall be declared in writing by the buyer to the seller as soon as the latter has notified his inability to ship during the extended period, but not later than seven days from the end of the month following the shipment period stipulated in this contract.
This contract shall be deemed void if the buyer does not declare the above-mentioned option in the manner set out above.
In all cases the seller shall give prompt notice to the buyer and supply proof of Force Majeure.
9. Arbitration claims
(a) Quality claims : Any claim relating to inferior quality shall reach the counter-party and the A.F.C.C. within a maximum period of 21 days after the final day of landing of the vessel.
(b) Technical claims : Any claim shall reach the counter-parb and the A.F.C.C. wlthin a maximum period of one year after the final day ot landing of the vessel, or after the last scheduled date for shipment if such has not taken place.
(c) Arbitration procedure and appeal : The parties shall refer to the rules of the Chambre Arbitrale of the A.F.C.C.
10. Arbitration clause
By express agreement, any dispute arising between the seller and the buyer for any reason whatsoever relating to this contract shall be settled by arbitration by the Chambre Arbitrale of the A.F.C.C. in accordance with its rules which both parties declare they are familiar with and accept. The arbitration award shall be final and not subject to appeal.
11. Applicable Law
This contract and its consequences shall be subject to French Law.
__________________1 delete as appropriate, failing which paragraphe (b) shall be deemed to be deleted
2 insert "None" if there are no special conditions
