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INCOGRAIN contract n° 15 - F.O.B. RIVER TRANSPORTATIONS MEANS
Please note: The contracts and guides contained in the present collection have been selected for illustrative purposes only. Juris International shall not be liable for their contents or use.
As of September 1, 1996 the name INCOGRAIN will replace that of "FORMULE DE PARIS". However, all contracts signed prior to this date under the name "FORMULE DE PARIS" will remain in effect. New contracts entered into as of September 1, 1996 under the former denomination "FORMULE DE PARIS, dernière édition" (Paris Contract Form last edition) will be subject to the clauses and conditions of INCOGRAIN as stipulated hereafter. INCOGRAIN is a registered trademark, the use of which is strictly reserved to contracts issued by the Syndicat de Paris du Commerce et des Industries des Grains.
General conditions of the Incograin form no. 15
In the event of dispute as to interpretation of this text the french text shall be valid.
In the following text the word "vessel" is to be understood as any river transportation means (motorvessel, barge, canal-boat, lighter, ...etc).
I. Price
Price is agreed for goods delivered stowed, uncleared, on board the vessel nominated by Buyers.
Unless otherwise agreed any modifications of duties and/or taxes relating to the goods being the subject of this contract and occuring after the date of its conclusion shall be for Buyers' account.
II. Quantity
For each shipment Buyers have a margin at their option, to be declared in the preadvice, of five per cent more or less on the contract quantity (two per cent at contract price and three per cent at the market price on date of the bill of lading). Where the contract quantity is fixed within two limits the quantity margin is at Buyers' option. In case of default of fulfilment, either total or partial, the nominal or mean quantity between the two limits shall serve as a basis for the cancellation.
III. Condition - Quality - Technical specifications
a) Goods must be delivered dry, without abnormal odour, without smell, free from alive parasites of the goods and meet all current trading standards.
b) For cereals, the Technical Addendum No.I "pour la vente des céréales" shall form an integral part of this contract. Unless otherwise agreed, the particular addenda for the relevant goods shall as well apply.
c) In case of a sale based on a reference sealed sample the goods shall conform strictly to said sample, failing which Buyers may either reject or accept delivery, subject to an allowance to be fixed by arbitration.
d) In case of a sale based on a type sample, a difference of 1% shall be accepted without allowance. If the difference exceeds 1%, the allowance shall be fixed by arbitration, Buyers having the right of rejection above 5%.
e) In case of a sale with basic technical specifications stating minimum or maximum limits, Buyers shall be entitled to reject if the agreed tolerances are exceeded or to accept delivery subject to an allowance to be fixed by arbitration.
IV. Loading port
A) Compulsory nomination
In case of a sale with compulsory nomination of the loading port, Sellers must definitely declare latest on the first day of the shipment period an accessible, passable and navigable river port located within the contractual originating area of the goods. If this day falls on a Saturday, a Sunday, a public holiday or another non-working day, the expiry date of the fixed period shall be brought foward to the preceding working day. However, Buyers may demand this nomination as from the 15th of the month preceding a monthly delivery or fifteen days prior to the beginning of a shipment period other than a monthly instalment. In such a case Sellers must thenceforth, under penalty of being in default, nominate the final loading port within the two working days following that of the official demand.
B) Optional choice
In case of a sale FOB one fixed river port with option to deliver in another accessible, passable and navigable port at their choice Sellers may declare their option by notifying and nominating the river port to their Buyers latest on the 25th of the month preceding a monthly delivery or five consecutive days prior to the beginning of a shipment period other than a monthly instalment (extension of time limits - article XVIII - excluded).
The sole mention relating to a departure point of the goods as appearing in the "Price" clause and being a constitutive component of said price shall not be considered a nomination in the meaning of above paragraphs and, failing other particulars, contract shall be deemed having been concluded under terms of paragraph A "Compulsory nomination".
C) Parity
In both cases, where a parity clause is agreed, any freight difference, as compared with the freight applicable to the area of destination when taking as basis the contractual departure river port shall be for the account of Buyers for whom the cost price must remain unchanged.
V. Notices
a) With a notice of minimum five consecutive days, Buyers must enable Sellers to be in a position to ship goods within the contractual period.
b) Buyers are in default if the notice does not reach Sellers on the sixth consecutive day preceding the end of the contractual period. If this day falls on a Saturday, a Sunday, a public holiday or another non working day, the expiry date of the fixed period shall be brought forward to the preceding working day.
c) Under penalty of default, the name of the vessel must be notified latest within the five working days following the date of loading fixed in the notice. Nevertheless, this notification must be made, at all events, latest on the last day of the contractual period.
d) In case several vessels are loaded for the same Buyers in fulfilment of one same commitment and at one single port, an interval of minimum two working days per vessel shall be observed.
VI. Delivery - Loading - Extension
a) Contractual delivery periods are compulsory and shall constitute fixed limits.
b) Each separate loading made or to be made, shall be considered a separate contract.
c) The loading vessel must be able to receive goods and be clean and dry. And in the absence of Buyers or of their appointed representatives, Sellers must ensure before loading that this is the case.
d) If, on the date preadvised for loading, the vessel is not there or not in condition to receive, Buyers shall be liable for the proven incurred expenses when, notwithstanding, shipment takes place within the contractual time. When the delayed loading cannot take place within the contractual period, Buyers shall be allowed a loading extension of 8 consecutive days, including the laytime, and shall pay to Sellers in addition to the proven incurred expenses a charge of 1/2 % if the loading is completed within the first four days, of 1 % if the loading is completed the fifth or the sixth day and of 1,5 % if the loading is completed on the seventh or the eighth day, over the normal invoice price, without any other price increase or carrying charges.
Upon expiry of the extension delay Buyers shall be in default with a contractual price increased by 1,5 % without prejudice to the proven incurred expenses nor to the provisions of article XV "Default".
e) Should Sellers not load goods within the usual or agreed laytime, they shall bear all expenses incurred owing to their delay and shall not be entitled to the contractual price increases which might have arisen owing to this delay.
They shall be considered as defaulting if the loading is not completed upon expiry of an additional delay of two working days and in such a case, besides the expenses provided for in the above paragraph, they shall be bound to refund to Buyers, against relevant vouchers, all expenses resulting from the freight contract cancellation.
VII. Weighing
Weights are ascertained on the weighing devices at the place of loading at Sellers' expenses, under the optional supervision of Buyers or of their representatives. The weight ascertained by such weighing device as mentioned on the bill of lading shall be final whether Buyers are represented or not. Sellers are bound to state on the bill of lading the ascertained draft gauge and weighing device weights. If Buyers do not accept the weighing means, they shall be entitled to have the weights contradictorily ascertained by any other means of their choice, but in such a case they shall bear the expenses thereof.
VIII. Recognition of the goods
Recognition of the goods (quality, condition) and sampling shall take place at shipment from the beginning till the completion of the loading.
Goods shall be considered as contractual if Buyers are neither present nor represented. If Buyers wish to be present or represented, they shall notify it to their Sellers and/or nominate to them their Superintendents, latest upon nomination of the vessel and enquire, on their own initiative or through their representatives, about Sellers' loading intentions.
IX Rejection of the goods
a) Any defect in condition which Sellers are unable to remedy immediately shall give Buyers the right to reject. Any dispute shall be settled by arbitration.
b) Unles the actual nature of the supplied goods does not correspond to the contractual description, any statute or rule of law whether public or private (technical addendum) notwithstanding, a difference in quality shall not give Buyers the right to reject but only that of fixing by arbitration the allowance they may be entitled to.
c) If the rejection is disputed by Sellers, samples shall be sealed for arbitration purposes and vessel shall be either discharged by Sellers without prejudice to their rights, or if Sellers decline to do so, goods shall be forwarded to a public or a private warehouse of a third party and shall be stored there for the account of whom it may finally belong.
d) If Sellers who dispute the rejection decline discharging Buyers shall pay on due contractual date failing which they shall lose all their rights. Reciprocally Buyers may thenceforth demand a bank guarantee from Sellers for the eventual reimbursement of the invoice amount. Such guarantee shall be released as ruled by the award of arbitration.
e) All expenses, sequels and consequences of an accepted or contested rejection shall be borne either by Sellers or by the losing party, without prejudice to the application of clause XV "Default".
X. Sampling
Primary samples representing the average quality of the lot shall be drawn contradictorily at loading between Sellers and Buyers or their representatives, by quantities of 50 tons. These primary samples shall serve to form the global sample.
After homogeneization and reduction of the mixture, final samples shall be formed and sealed, in compliance with the following provisions :
- Samples for ascertaining moisture content (humidity) shall be compulsorily packed in moisture-proof containers ;
- Samples for ascertaining broken and partly broken kernels shall be compulsorily packed in rigid containers ;
- Samples for other purposes shall be packed in canvas, cotton or paper bags or any similar type of packing.
In case of arbitration for odour or smell, the Arbitration Tribunal referred to in urgent proceedings is sole qualified to judge and appreciate the sealed samples which are compulsorily submitted to it.
XI. Analyses
Samples drawn in accordance with Article X shall serve for analyses.
The request for an analysis as well as the sample(s) shall be sent to the laboratory(ies) appointed by the parties or, failing such an appointment, to the Société Auxiliaire de la Chambre Arbitrale de Paris (S.A.C.A.P.) within seven working days following the date of sampling, the other party being informed of the aforesaid request within the same time limit.
Should either party call for a counter-analysis, said party shall give notice to the other party within seven working days from receipt of the analysis report, another sample being used ; said sample shall be sent within the same delay to the laboratory(ies) nominated by the parties or failing such nomination to the Société Auxiliaire de la Chambre Arbitrale de Paris (S.A.C.A.P.).
The claimant must indicate in his request the name and address of the other party so as to enable the laboratory to send the official analysis certificate to both parties. The claimant shall however remain exclusively responsible for the formal notification of this certificate of analysis to the other party.
If the variation between the first and second analysis does not exceed 1/2 %, the first analysis shall be accepted as final. In other cases, the mean of the two analyses shall be accepted.
The certificates of the first or second analysis shall be passed on without delay to the other party.
The costs of the first or second analysis shall be borne by the losing party.
XII. Insurance
Insurance of the goods loaded in whole or in part aboard the vessel is under the responsibility of the Buyers who are deemed to have effected it, in due time, with a first class company.
Sellers may demand an evidence of such a cover before proceeding with loading operations.
Any damages suffered shall in all cases be for Buyers' account.
XIII. Payment
A. Cash against documents
Payment shall be net cash, without discount, on first presentation through a bank of the invoice together with the original negotiable bill of lading and any other documents which Sellers have undertaken to supply.
In the event of said documents not being available, original bill of lading excepted, Sellers may provide a letter of guarantee including all useful and usual information, such guarantee to be countersigned, if required by Buyers, by a first class bank.
Irrespective of the terms of payment provided for in the special contract conditions, Sellers may demand at any time within the shipment period and not earlier than fifteen consecutive days prior to the beginning of the aforesaid period, the opening at Buyers' expenses of an irrevocable documentary credit confirmed by the bank they have nominated in their demand. This opening shall be notified to Seller's bank within five working days from the date of request. Validity conditions shall be those described hereafter. A discount of 1 % shall be granted to Buyers.
B. By documentary credit
Where it is provided for in the contract that payment shall be effected through a documentary credit, said credit shall be irrevocable and be confirmed by Sellers' bank which must receive notification of such opening not later than five working days prior to the first day of the shipment period.
The credit shall remain valid at least fifteen working days beyond the contractual shipment period, and, in case of a temporary hindrance leading to extension of the contract period (see Art. XIV), the validity of the credit shall be extended by as much time as granted for fulfilment.
C. Delayed payment
Buyers shall take all necessary steps so that payment be made to Sellers on the due contractual date.
In case of delayed payment, Buyers shall be liable to Sellers, without need of a formal notice, for a penalty of 0,15 % based on the invoice amount (VAT excluded) per day of delay as damages. Buyers shall also be liable for the financial costs caused by the delay and any proven expenses incurred by Sellers to obtain payment.
Save for clauses contrary to Public Order :
- at any time, before continuing to deliver goods, Sellers are entitled to claim payment of any previous delivery the due payment of which might have been delayed ;
- in case of late opening of the credit, Sellers may postpone the fulfilment of the open contract until receipt of the bank confirmation that credit has been opened ;
- in either case, Sellers may after having given a formal notice of minimum two working days cancel the tonnage still to be fulfilled on the whole contract without prejudice to their rights to claim damages as provided for in clause XV "Default".
Any expenses arising from delays in payment and/or opening of credit shall be for the account of defaulting Buyers.Reciprocally, defaulting Sellers shall be responsible for any expenses incurred by Buyers with regard to payment.
XIV. Force majeure
Should shipment of the goods be utterly prevented due to unforeseeable circumstances, this contract shall be considered null and void for the period/s still to be fulfilled.
Should the hindrance be only of a momentary nature (strike, lock-out, ice, momentary impossibility to load, etc...), the contractual shipment period shall be extended as from the resumption of work by as many consecutive days as the number of days during which work was hindered within the normal contemplated period of shipment. A minimum extension of 10 consecutive days shall be allowed if the hindrance has taken place within the last 14 days of the contract period.
However, should the hindrance continue for more than 60 consecutive days, the contract shall be considered null and void for the delivery/ies that had been postponed.
Within 3 working days from the beginning of the hindrance, the reasons causing the delay of fulfilment must be compulsorily notified to the other party who may demand evidence of the claimed hindrance supported by a certificate issued by the qualified Authority.
XV. Default - Determination of damages
Except in the above mentioned cases, if either party is defaulting, the non defaulting party shall have the right without prior formal notice, either :
a) to treat the contract as null and void.
b) to purchase or resell the goods, as the case may be, within five working days, for the account of the defaulting party and to claim from them the reimbursement of the damages.
c) to claim the price difference between the contract price and the ruling market price on the date of default.
In case of repurchase, the unsupplied goods may be substituted, if not to be found, by other goods of equivalent quality even if their origin or manufacture are different.
The non defaulting party must notify the other party, within five working days from the date of default, the right he has exercised. Should he omit said notice or should the repurchase (or resale) be not effected as per paragraph b), the paragraph c) of the present clause is to apply.
XVI. Insolvency of either party
If either party is in a situation of suspending payments, or under Ruling of Court or under liquidation proceedings or in any other similar legal situation, the other party shall have the right to demand, by way of a formal notice, to the Syndic or the private or legal Trustee of the party suspending payment an immediate declaration of intent with regard to the fulfilment of the contract.
If said notice remains unanswered during five working days save for rules of law to the contrary or if the legal Trustee declares that he will not fulfil the obligations of the party under trusteeship the other party may implement his rights under the "Default" clause. Otherwise, the debts arising from the Trustee's undertaking to fulfil the contract shall be considered preferential debts.
XVII. Arbitration
Under penalty of being time barred :
A. Notification
1) Quality and condition
Any claim for arbitration shall be notified to the other party not later than seven working days after recognition of the goods.
However, in case an analysis is provided for in the contract or rendered necessary either by disagreement of the parties at time of the contradictory inspection of the goods or where it is impossible to perform these inspections in accordance with contract terms, the arbitration claim may still be notified to the other party not later than fourteen working days after receipt of the analysis certificate.
Should either party exercise his right to have a second analysis performed as per provisions of clause XI, the party willing to exercise his right of arbitration may still notify his claim to the other party not later than seven working days after receipt of the second analysis certificate.
2) Other disputes
For all other disputes not involving quality and condition, the party willing to exercise his right of arbitration shall notify his claim to the other party within the six months following the last day allowed for fulfilment of the obligations.
B. Referring of the disputes
1) Quality and condition
The claimant shall within fourteen working days following the notification of the arbitration claim refer the dispute to the Chambre Arbitrale de Paris and send them the samples within the same time limit.
2) Other disputes
The claimant shall refer the dispute to the Chambre Arbitrale de Paris within six months following the last day allowed for fulfilment of the obligations.
Where a financial settlement is involved there is no time - barring limit for lodging a claim.
XVIII. Time limits
Contractual time limits are to be considered compulsory.
The indivisible working day is defined by the working time from 08 H 30 to 17 H 30. Letters, telegrams and telexes arriving after 17 H 30 as well as those arriving on a Saturday, a Sunday, a holiday or a non-working day shall be deemed as arrived on the opening of the first following working day.
Time limits other than those laid down for deliveries, notices of loading and the designation of the port expiring on a Saturday, a Sunday, a public holiday or a non-working day shall be extended until the next following working day.
A holiday is to be understood as that in force in the respective place of fulfilment.
Extension of time limits
Unless otherwise agreed, time limits other than those laid down for deliveries or preadvices of loading shall be extended for reforwarding telexes or telegrams received from third parties either within the last two hours of the normal working time or after expiry of the time limit. This exceptional extension shall be restricted to three working days. It will be calculated and justified by allowing two working hours for each third party specifically nominated.
XIX. Compromissory clause
Any dispute arising out of or under this contract including those concerning its existence and validity shall be referred for final determination to an arbitration arranged by the Chambre Arbitrale de Paris (61 Bourse de Commerce, 75040 PARIS Cedex 01 France) in accordance with their rules of which both parties hereto declare to be cognisant and which they accept.
XX. Refusal to abide by an award of arbitration
Should a party having lost an arbitration refuse to abide by the award the other party shall be entitled to apply to the Syndicat de Paris to have the name of said party published in a circular letter addressed to all its members.
The Syndicat de Paris will notify to the party concerned, the other party's claim by a registered letter allowing them twenty days for abiding by the award. On expiry of such delay, the Syndicat de Paris will proceed with the publication.
The party who, notwithstanding this additional delay, has not complied with the award does hereby formally waive any claim against or about such publication.
