 |
INCOGRAIN contract n° 21 - FREE DELIVERED BY RAIL
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. 21 --Free delivered by rail
In the event of dispute as to interpretation of this text the french text shall be valid.
Wherever the following abbreviations are used, this is agreed to mean :
CIM : Convention internationale (International Agreement regarding transport of goods by rail).
LVI : Lettre de voiture internationale (International Waybill)
I. Price
Price is agreed for goods supplied free delivered by rail.
A. Export procedure - customs cleared goods
Any duties, taxes, etc... in force on the day of customs clearance in the exporting country and relating to the goods being the subject of this contract shall be for Sellers' account. Similarly any duties, taxes, etc..., in force in the importing country shall be for Buyers' account.
Unless otherwise agreed, all relevant charges and/or subsidies under EEC Regulations (European Economic Community) such as levies, refunds, monetary compensatory amounts, etc..., shall be for Sellers' account in the exporting country and for Buyers' account in the importing country.
B. Inland procedure - uncleared goods
Any modification of duties and/or taxes relating to the goods being the subject of this contract and occurring after the date of its conclusion shall be for Buyers' account.
II. Quantity
For each instalment tonnage, Sellers have a margin at their option of 5 % more or less (2 % at contract price and 3 % at market price on date of waybill).
Where the contract quantity is fixed within two limits (minimum/maximum), final quantity shall also be at Sellers' option.
Full train : unless otherwise agreed, the contract quantity settled at contract price shall be that set down in the "technical conditions" issued by the railways for the relevant voyage.
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.
In case of total non fulfilment on a full train load and where there is neither a nominal contract tonnage nor any tonnage set down in "technical conditions" issued by the railways, the basis for cancellation shall then be a tonnage of 1,250 Metric Tonnes.
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 for the sale of all cereals shall form an integral part of this contract. Unless otherwise agreed the particular addendum relevant to the goods sold shall also 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, in which latter case 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. Discharging railway station
If the sale contract does not nominate the exact discharging railway station, Sellers may demand such nomination, at the earliest, fifteen consecutive days before the contemplated date of delivery. In such a case, Buyers, under penalty of being in default, shall notify to Sellers or their representative within two working days of receipt of the demand the exact place of discharge within the area of the contractual destination.
V. Forwarding instructions - wagons
Buyers must enable Sellers to deliver the goods within the contractual period, by giving all useful forwarding instructions latest on the first working day of the contractual delivery period. Nevertheless, Sellers shall be entitled to claim these instructions, at the earliest, fifteen consecutive days before the first possible loading day and, in such a case, Buyers shall comply with the request within two working days from receipt of same; otherwise they sall be in default if they do not reply to a reminder from Sellers granting them twenty-four additional working hours.
Wagons to be supplied by Sellers or at their request by the transport or renting wagons Companies.
VI. Delivery - unloading
a) Contractual delivery periods are compulsory and shall constitute fixed limits.
b) Each separate shipment, made or to be made, shall be considered a separate contract.
c) Wagons shall be considered as being at disposal as soon as they have reached the relevant railway head station.
d) Unloading
Buyers shall unload the goods within the agreed contractual time or failing which, within the two working days from the disposal date of the last wagon. They shall be liable for any possible consequences resulting from their delay.
Upon expiry of an additional two working days beyond the allowed time Buyers who have not started to unload shall be considered in default and shall refund all resulting expenses without prejudice to indemnity which may fall due, as set down in article XV (Default).
e) Delay
If delivery is delayed, Buyers shall accept it provided that despatch be made latest on the last day of the contract period.
f) Forwarding notice
Sellers shall send directly to their Buyers a forwarding notice stating the contract date or number, the wagons registration number, the tonnage, the waybill(s) date, the arrival railway station and the consignee's name. This notice shall be given either by telex or by telegram within the two working days starting from the date of the waybill(s). Failure to send this notice shall not constitute a default : however, Sellers shall be liable to Buyers for any extra expenses incurred thereby. Sellers shall not be liable for any errors occurring in transmission or any other errors provided they are not responsible for same.
VII. Recognition of the weights
Weights ascertained by the weighing devices at place of unloading, at Buyers expenses, shall be final whether Sellers or their appointed representative (advised in due time) are attending or not.
In the absence of local weighing facilities, the original declared weight shall be considered as final.
VIII. Recognition of the goods
Recognition of the goods (quality, condition) and sampling shall take place from the beginning till the end of unloading.
Goods shall be considered as contractual if neither of the parties requests a contradictory sampling, whether Sellers or their appointed representative (advised in due time) are attending or not.
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) Unless 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 wagons shall be either taken back 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 taking back, Buyers shall pay on due contractual date failing which they shall lose all their rights. Reciprocally Buyers may 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
Where provided for in the contract or at the request of either party primary samples representing the average quality of the lot shall be drawn contradictorily during unloading from each wagon by Sellers and Buyers or their representatives. These primary samples shall serve to form the global sample.
After homogenization and reduction of the mixture, final samples shall be formed and sealed, in compliance with the following provisions :
- Samples for ascertaining moisture content (humidity) must be compulsorily packed in moisture proof containers ;
- Samples for ascertaining broken and partly broken kernels must be compulsorily packed in rigid containers ;
- Samples for other purposes shall weigh at least one kilogram and 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 urgency proceedings is sole qualified to judge and appreciate the sealed samples compulsorily submitted to its members.
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. Transfer of property - general transport conditions
Property shall pass on to Buyers either when goods are unloaded upon arrival or when crossing the border in case of a sale contract "rendu frontière" (free delivered border).
Costs and risks of transportation are for Sellers' account together with costs of settlement of disputes occuring during the transport. Nevertheless, the consignee shall comply with all official formalities and lodge all usual reserves to protect Sellers' rights.
The contracting parties shall comply with the relevant general railway conditions regarding both inland and international (CIM) transport but also with those of wagons renting Companies.
Unless otherwise stated, forwarding shall be made under ordinary transport conditions and at the lowest possible rate.
XIII. Payment
A. Cash against documents
Payment shall be net cash without discount on first presentation through a bank of the invoice together with a duplicate of Inland or international Railway Bill (LVI) and any other documents which Sellers have undertaken to supply.
In the event of said documents not being available (duplicate of Inland or international Railway Bill 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 14 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.
Buyers may demand evidence of the claimed hindrance supported by a certificate issued by the qualified authorities.
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 or notices of shipment expiring on a Saturday, a Sunday, a 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 shipment 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.
NOTA : In the case of sales with destination Switzerland, the existing addendun shall apply provided the parties have agreed thereupon in a private confirmation.
