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INCOGRAIN contract n° 23 - SILOS/WAREHOUSES
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 n° 23 -- Silos/Warehouses
In the event of dispute as to interpretation of this text the french text shall be valid.
I. Price
A) Sales in inland silos/warehouses
Unless otherwise agreed price is to be understood for goods in bins or on floor, ready for delivery.
B) Sales in maritime port silos (named in the attached unrestrictive list)
Unless otherwise agreed price is to be understood for goods in bins or on floor, ready for loading ; entering fees into silo as well as actual exit charges being for Buyers' account.
C) 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.
D) 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
The agreed contractual tonnage shall be understood as minimum/maximum.
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 (N° I) "pour la vente des céréales - spécifications techniques" shall form an integral part of this contract. Unless otherwise agreed the particular addendum for the relevant goods 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. Silos/delivery warehouses
In the event of a sale calling for a compulsory nomination by Sellers of the silo/s/delivery warehouse/s, Sellers under penalty of default shall notify it/them within the two working days following the receipt of the notice given by Buyers that they intend to take delivery (extension of time limits-clause XVII excluded).
V. Notice
Buyers must give Sellers a seven consecutive days notice. Buyers are in default if the notice does not reach Sellers on the eighth consecutive day preceding the end of the fulfilment 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.
VI. Delivery/transfer
1) Contractual delivery periods are compulsory and shall constitute fixed limits.
2) Each separate delivery or transfer, made or to be made, shall be considered a separate contract.
3) On a regular notice the goods must be in a position to be delivered or transfered as from the first day of the contractual delivery period.
4) Under penalty of default, Sellers must hold goods at Buyers' disposal in the nominated silo/s/warehouse/s on the date given in Buyers' notice. Under penalty of default, Buyers are bound to take delivery on the date given in their notice, either by actually loading on transportation means or by transferring into a storage facility which stands at their own disposal, eventual expenses of the transfer formality being for Buyers' account.
5) On Sellers' written order (letter, telex, telegram) the silo/warehouse shall, under their own general conditions, transfer on due date and issue the transfer/delivery note stating the norms and specifications of the goods, on one single original handed over to Sellers.
VII. Weighing
Weight shall be ascertained on the weighing devices and in accordance with the general conditions of the silo/warehouse holding the goods, under the optional supervision of Buyers or their representative. This weighing may involve the issuance of a final invoice to settle shortage or excess of weight.
In case of a spot transfer the weight notified by the silo/warehouse shall be final.
VIII. Recognition of the goods
Recognition of the goods (quality, condition) and sampling shall take place latest when goods are taken away. Goods shall be considered as contractual if neither party is asking for contradictory recognition.
In case of a transfer implying no moving of the goods, quality and condition data stated on the delivery or transfer note issued by the silo holding the goods shall be final.
IX. Rejection of the goods
a) Any defect in condition which Sellers are unable to remedy immediately shall give Buyers the right of rejection. 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 of rejection but only that of fixing by arbitration the allowance they may be entitled to.
c) Should the rejection claim confirmed by Buyers be disputed by Sellers, the latter shall be entitled to resell for account of whomever it may belong notifying and claiming arbitration on basis of contradictorily sealed and regularly drawn samples.
d) 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
Save where there is a transfer implying no moving of the goods, either party may, at the time goods are put on transportation means, request contradictory drawing of samples representing the average quality of the concerned parcel. These samples shall be made up according to the usual methods applied for the transportation means that have been used and sealed in accordance with the following provisions :
- samples for ascertaining moisture content (humidity) must compulsorily be packed in moisture proof containers,
- samples for ascertaining broken and partly broken kernels must compulsorily be packed in rigid filled up containers,
- samples for other purposes shall be packed in canvas, cotton or paper bags or any similar type of packing.
In the event of obstruction by either party, the other may operate under the supervision of a bailiff, after summons in due form made by said Public Officer.
In case of arbitration on odour or smell, the Arbitration Tribunal refered to under urgent procedure shall be solely qualified to appraise and estimate the sealed samples which shall be compulsorily laid before them.
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 thereof to the other party within seven working days from receipt of the analysis certificate, 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 ownership - insurance
Ownership shall be deemed to pass on to Buyers either when goods are taken away or upon their transfer within the silo/s/warehouse/s. Insurance shall be under Buyers' responsibility as from the transfer of ownership.
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 single original of the delivery or transfer note and of any other documents which Sellers have undertaken to supply.
In the event of said documents not being available (transfer or delivery note excluded) 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.
At the earliest 15 consecutive days prior to the beginning of the contractual delivery period and latest on the working day following receipt of the notice provided for in clause V, Sellers are entitled to request from Buyers a personal and joint bank guarantee (or at Buyers' option the opening of a documentary credit as per paragraph B below) warranting payment and valid thirty consecutive days beyond the expiry of the contractual delivery period. Said bank guarantee (or documentary credit) must be regularly received as to allow actual delivery on the date fixed in the notice.
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 confirmed by Sellers' bank which must receive notification of such opening not later than five working days prior to the first day of the delivery period; or, when paragraph A) above is to apply, latest on the day before that fixed for the delivery.
C) Contractual extension of the fulfilment period
In case of a momentary hindrance such as to cause an extension of the contractual fulfilment period (clause XIV FORCE MAJEURE) the validity of the bank guarantee (or of the documentary credit) shall be extended by the number of days of the granted extension period.
D) 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 delivery 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 deliver etc...), the contractual fulfilment period shall be extended 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 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 is different.
The non defaulting party must notify the other party, within five working days from the date of default, the right they have exercised. Should they 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 their right to have a second analysis performed as per provisions of clause XI, the party willing to exercise their right of arbitration may still notify their 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 their right of arbitration shall notify their 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 the samples within the same time limit to Société Auxiliaire de la Chambre Arbitrale de Paris (S.A.C.A.P.).
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 delivery 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 delivery 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.
