Contract for Bulk Grain and Pulses By Rail - Rye terms

Contract for bulk grain and pulses by rail rye terms

Date ____________

Sellers ____________

Intervening as brokers ____________

Buyers ____________ have this day entered into a contract on the following terms and conditions.

1. Goods in bulk ____________

2. Quantity

____________ tonnes 5 % more or less. Excess or deficiency over 2 % shall be settled at the market price, including Cost of Carriage (and Insurance) on date of the Consignment Note and on the quantity thereof: the value to be fixed by arbitration, unless mutually agreed.

3.Price

At the price of per tonne of ____________ 1000 kilograms including Cost of Carriage (and Insurance)

4. Despatch

Goods to be despatched between ____________ and ____________ both dates inclusive. The Consignment Note(s) to be dated when the goods are despatched. Consignment Note(s) to be considered proof of date of despatch in the absence of evidence to the contrary. Sellers to be responsible for securely fastening the wagon(s) before despatch.

5. Wagon classification

Per good grain carrying bulk wagon(s) suitable for the journey, clean, free from smell or taint at time of loading.

6. Station or private siding of loading ____________

____________

7. Destination

Including Cost of Carriage (and Insurance) direct or indirect to ____________

The Buyers shall nominate the Consignee to Sellers no later than three business days prior to the commencement of the period for despatch or the date of the contract whichever is later. Delivery at destination to be effected in accordance with the state railway authority(ies) and/or C.I.M. Regulations, and/or terms of independent carrier(s), whichever is relevant, prevailing at time of despatch.

8. Carriage

Carrying costs shall be paid by Sellers. The Contract of Carriage shall be entered into by Sellers on the terms and conditions of the relevant state Railway authority(ies) and/or C.I.M. Regulations and Buyers admit knowledge of such terms and conditions and/or Regulations and accept any responsibility and/or liability which such terms and conditions and/or Regulations may impose upon them and/or the consignee. Sellers may enter into a Contract of Carriage with independent carrier(s) provided that the terms and conditions of such contract(s) of carriage are no more onerous to Buyers and/or Consignee than those of the relevant state railway authorities and/or C.I.M. Regulations unless at Sellers' risk and expense.

9. Brokerage

____________ per tonne to be paid by Sellers on the mean contract quantity, goods lost or not lost, contract fulfilled or not fulfilled unless such non-fulfilment is due to the successful application of the Prohibition Clause or the Force Majeure Clause. Brokerage shall be due on the day contractual documents are exchanged or, if the goods are not despatched then the brokerage shall be due on the 30th consecutive day after the last day for advice of consignment.

10. Payment

Payment by cash in ____________ against invoice and copy consignment note (certificate of insurance) or such other documents as mutually agreed between Buyers and Sellers. Ownership of the goods shall pass when paid for by Buyers. No obvious clerical error in the documents shall entitle Buyers to reject them or delay payment, but Sellers shall be responsible for all loss or expense caused to Buyers by reason of such error and Sellers shall on request of Buyers furnish an approved guarantee in respect thereto.

Costs of collection shall be for account of Sellers, but if Buyers demand presentation only through a bank of their own choice, in that event any additional collection costs shall be for the account of Buyers.

Final invoices for monies due may be prepared by either party and shall be settled without delay. If not settled, either party may declare that a dispute has arisen which may be referred to arbitration as herein provided.

11. Interest

If there has been unreasonable delay in any payment, interest appropriate to the currency involved shall be charged. If such charge is not mutually agreed, a dispute shall be deemed to exist which shall be settled by arbitration. Otherwise interest shall be payable only where specifically provided in the terms of the contract or by an award of arbitration. The terms of this clause do not override the parties obligation under the Payment Clause.

12. Quality

* At time and place of loading about as per sealed sample marked ____________ in possession of ____________. The word "about" when referring to quality shall mean the equivalent of one-half of one percent on contract price. In any assessment at arbitration of allowance for quality, due regard shall be given to any analyses under other guarantees.

* To be sound, fair merchantable, dry and odour free.

____________

____________

* Natural weight ____________ kilograms per hectolitre at time and place of loading.

* Moisture ____________ %

* Admixture ____________ %

* Complete/delete as applicable.

Difference in quality shall not entitle Buyers to reject, except under the award of arbitrator(s) or board of appeal, as the case may be, referred to in accordance with the Arbitration Rules specified in the Arbitration Clause hereafter appearing.

The grain is not warranted free from defect, rendering the same unmerchantable, which would not be apparent on reasonable examination, any statute or rule of law to the contrary notwithstanding.

Despatch in good condition.

Should the grain arrive out of condition, due allowance shall be made for the time of year in which the despatch took place.

The fact of the grain so arriving shall not necessarily be sufficient proof of an improper despatch.

13. Finality

Where the natural weight, analysis for moisture and admixture or analysis for warranties / guarantees is to be determined by the Grain and Feed Trade Association or their appointed Analysts, or other accepted authority agreed by both parties, instructions to proceed shall be sent by the last Buyers to the Association, Analyst or accepted authority whichever is applicable within 21 days of final discharge of the wagons at the last destination under this Contract. The certificate of the Grain and Feed Trade Association or its duly appointed analyst or accepted authority is final in respect of all warranties / guarantees. All expenses incurred to be borne half by the Sellers and half by the Buyers.

In the event of non compliance with any of the preceding provisions of the clause, claims for excess or deficiency as applicable shall be deemed to be waived and absolutely barred, unless the arbitrator(s) or board of appeal referred to the in the Arbitration Rules, shall in his/their absolute discretion, otherwise determine.

14. Insurance ____________

____________

____________

15. Average

In the event of the carriage including carriage by sea, all average to be for Sellers' account. Buyers to furnish Sellers with the usual documents required by average adjusters for preparation of average statement, and to return to Sellers the policy(ies) and/or certificate(s) of insurance received from them, together with any policy(ies) and/or certificate(s) for any increased value insurance, failing which Buyers shall pay such contribution to average thereon as Sellers may be unable to recover in consequence.

16. Duties, taxes, levies

* (a) All Duty and/or Border Tax, and/or levy, and/or refund on export and on import shall in all respects be for Sellers' account, or

* (b) All Duty and/or Border Tax, and/or levy, and/or refund (liability or entitlement) on export is to be for Sellers' account and all Duty and/or Boder Tax and/or levy, and/or refund, etc. (liability or entitlement) on import is to be for Buyers' account.

* (c) Sellers undertake to pass to Buyers in good time, and Buyers undertake to return to Sellers as soon as possible after use, the necessary import on export licence(s) or certificate(s) or extract(s).

* (d) Buyers and Sellers undertake to obtain, each for the other, any documents that may be required to prove origin or destination.

17. Discharge

Consignment to be discharged at Buyers' risk, and expense.

Demurrage

For Buyers' account as per the current regulations of the railway authority at the country of discharge.

18. Labelling

All wagons shall be individually, clearly marked with Consignees' name and destination.

19. Weighing

The whole consignment to be weighed at time of *loading/discharge according to customary method at place of *loading/discharge.

* (a) Weight final at loading per GAFTA Registered superintendents certificate or weighbridge tickets.

* (b) Weight final at destination with any deficiency on consignment note weight to be paid for by Sellers, and any excess over Consignment Note weight to be paid for by Buyers at contract price.

(c) The delivered weight of any missing wagon(s) shall be deemed to be the consignment note weight for the purpose of this clause.

Sellers and Buyers and/or their representatives shall have the right of supervision both as to delivery and weighing.

20. Rye terms

Condition guaranteed on arrival (subject to any country damaged Grain in the fair average quality of the season's crop). Slight dry warmth not injuring the grain not be objected to.

In the event of Buyers receiving Rye Terms allowance from the Sellers, any sum received from carriers and/or other parties to be for the benefit of Sellers, and any proved reasonable extra expenses incurred by Buyers in connection with the claim to be deducted.

21. Latent defect

The goods are not warranted free from defect, rendering same unmerchantable, such would not be apparent on reasonable examination, any statute or rule of law to the contrary notwithstanding.

22. Prohibition

In case of prohibition of export, blockade or hostilities or in case of any executive or legislative act done by or on behalf of the government of the country of origin or of the territory where the station(s) or private siding(s) of loading named herein is/are situate, restricting export, whether partially or otherwise, any such restriction shall be deemed by both parties to apply to this contract and to the extent of such total or partial restriction to prevent fulfilment whether by shipment or by any other means whatsoever and to that extent this contract or any unfulfilled portion thereof shall be cancelled. Sellers shall advise Buyers without delay with the reasons therefor and, if required, Sellers must produce proof to justify the cancellation.

23. Extension of despatch

The period of despatch stipulated in the contract, if 31 days or less, shall, if claimed by the consignor be extended for not more than eight days, provided the consignor gives notice claiming an extension not later than the next business day following the last day of the originally stipulated period; the notice need not state the number of additional days claimed, and shall be passed on by intermediary Sellers to their respective buyers in due course after receipt.

If such notice be given and despatch be made within the extended period of eight days, the sellers under their contract shall make an allowance to their buyers to be deducted in the invoice from the contract price, based on the number of days by which the originally stipulate period is exceeded, in accordance with the following scale: 1 to 4 days, 1/2 %; 5 or 6 days, 1%; 7 or 8 days, l 1/2 % of the gross contract price: but if notwithstanding such notice, the consignor defaults in loading, then the contract shall be deemed to have called for loading during the originally stipulated period plus eight days, at contract price less 1 1/2 %, and any settlement for default shall be calculated on that basis.

If any allowance becomes due under this clause, the contract shall be deemed to be the original contract price less the allowance and any other contractual differences shall be settled on the basis of such reduced price.

24. Force majeure, strikes etc

Sellers shall not be responsible for delay occasioned by the prevention of forwarding the goods to the station or private siding of loading, including strike etc., or any cause comprehended in the term "force majeure". If delay in despatch is likely to occur for any of the above reasons, Sellers shall give notice to Buyers by cable, telex or other method of rapid written communication within 7 consecutive days of the occurrence, or not less than 21 consecutive days before the commencement of the contract period, whichever is later. If despatch be delayed for more than one calendar month, Buyers shall have the option of cancelling the delayed portion of the contract, such option to be exercised by Buyers giving notice to be received by Sellers not later than the first business day after the expiry of the extended loading period. If Buyers do not exercise this option, such delayed portion shall be automatically extended for a further period of one month. If despatch under this Clause be prevented during the further one month's extension, the contract shall be cancelled. Buyers shall have no claim against Sellers for delay or non-fulfilment under this Clause, provided that Sellers shall have supplied to Buyers, if required, satisfactory evidence justifying the delay.

25. Advice of despatch

Advice of despatch specifying the date of the consignment note(s), approximate quantity loaded and wagon number(s) shall be sent by cable, telex or other means of rapid written communication by Sellers to their Buyers, either direct or, through their representative or agent within two business days of date of consignment note, such advice to be given by subsequent Sellers in due course after receipt. Failure by Sellers to pass such advice to their Buyers will not constitute a default, except as provided for in Clause 27, but Sellers will be responsible to their Buyers for proved extra expenses incurred as a consequence. Sender shall not be responsible for any error in transmission or other previous error in transmission which has been repeated in good faith.

26. Proof of despatch

Copy consignment note to be considered proof of date of despatch in the absence of evidence to the contrary. Each consignment in whole or part fulfilment of this contract to be considered a separate contract, but the margin on the quantity sold not to be affected thereby.

27. Non-business days

Saturdays, Sundays and the officially recognised and/or legal holidays of the respective countries and any days which The Grain and Feed Trade Association may declare as Non-Business Days for specific purposes, shall be Non-Business Days. Should the time limit for doing any act or giving any notice expire on a Non-Business Day, the time so limited shall be extended until the first Business Day thereafter. The period of despatch shall not be affected by this clause.

28. Default

In default of fulfilment of contract by either party, the following provisions shall apply:

(a) The party other than the defaulter shall, at their discretion have the right, after giving notice by letter, telegram or telex to the defaulter to sell or purchase, as the case may be, against the defaulter, and such sale or purchase shall establish the default price.

(b) If either party be dissatisfied with such default price or if the right at (a) above is not exercised and damages cannot be mutually agreed, then the assessment of damages shall be settled by arbitration.

(c) The damages payable shall be based on the difference between the contract price and either the default price established under (a) above or upon the actual or estimated value of the goods, on the date of default, established under (b) above.

(d) In no case shall damages include loss of profit on any sub-contracts made by the party defaulted against or others unless the arbitrator(s) or board of appeal, having regard to special circumstances, shall in his/their sole and absolute discretion think fit.

(e) Damages, if any, shall be computed on the quantity appropriated if any but, if no such quantity has been appropriated then on the mean contract quantity, and any option available to either party shall be deemed to have been exercised accordingly in favour of the mean contract quantity.

(f) Default may be declared by Sellers at any time after expiry of the contract period, and the default date shall then be the first business day after the date of Sellers' advice to their Buyers.

If default has not already been declared then (notwithstanding the provisions stated in the Despatch clause) if notice of advice is not passed by the 10th consecutive day after the last day for the advice of despatch laid down in the contract, the Sellers shall be deemed to be in default, and the default date shall then be the first business day thereafter.

29. Insolvency

If before the fulfilment of this Contract, either party shall suspend payments, notify any of the creditors that he is unable to meet debts or that he has suspended or that he is about to suspend payments of his debts, convene, call or hold a meeting of creditors, propose a voluntary arrangement, have an administration order made, have a winding up order made, have a receiver or manager appointed, convene, call or hold a meeting to go into liquidation (other than for re-construction or amalgamation) become subject to an Interim Order under Section 252 of the Insolvency Act 1986, or have a Bankruptcy Petition presented against him (any of which acts being hereinafter called an "Act of Insolvency") then the party committing such Act of Insolvency shall forthwith transmit by telex or telegram or by other method of rapid written communication a notice of the occurrence of such Act of Insolvency to the other party to the contract and upon proof (by either the other party to the contract or the Receiver, Administrator, Liquidator or other person representing the party committing the Act of Insolvency) that such notice was thus given within 2 business days of the occurrence of the Act of Insolvency, the contract shall be closed out at the market price ruling on the business day following the giving of the Notice. If such Notice be not given as aforesaid, then the other party, on learning of the occurrence of the Act of Insolvency, shall have the option of declaring the contract closed out at either the market price on the first business day after the date when such party first learnt of the occurrence of the Act of Insolvency or at the market price ruling on the first business day after the date when the Act of Insolvency occurred.

In all cases the other party to the contract shall have the option of ascertaining the settlement price on the closing out of the contract by repurchase or re-sale, and the difference between the contract price and the re-purchase or re-sale price shall be the amount payable or receivable under this contract.

30. Circle

Where Sellers repurchase from their Buyers or from any subsequent buyer the same goods or part thereof, a circle shall be considered to exist as regards the particular goods so repurchased, and the provisions of the Default Clause shall not apply. (For the purpose of this Clause the same goods shall mean goods of the same description, from the same country of origin, of the same quality, and, where applicable, of the same analysis warranty, for despatch to the same destination during the same period of despatch). Different currencies shall not invalidate the circle.

Subject to the terms of the Prohibition Clause in the contract, if the goods are not despatched, or, having been despatched documents are not presented, invoices based on the mean contract quantity (or if the goods have been despatched on the despatched quantity), shall be settled by all buyers and their sellers in the circle by payment by all Buyers to their Sellers of the excess of the sellers' invoice amount over the lowest invoice amount in the circle. Payment shall be due not later than 15 consecutive days after the circle is ascertained. Where the circle includes contract(s) expressed in different currencies the lowest invoice amount shall be replaced by the market price on the first day for contractual despatch and invoices shall be settled between each buyer and his seller in the Circle by payment of the differences between the market price and the relative contract price in currency of the contract.

All sellers and buyers shall give every assistance to ascertain the circle and when a circle shall have been ascertained in accordance with this Clause same shall be binding on all parties to the circle.

As between buyers and sellers in the circle, the non-presentation of documents by sellers to their buyers shall not be considered a breach of contract.

Should any party in the circle prior to the due date of payment commit any act comprehended in the Insolvency Clause of this contract, settlement by all parties in the circle shall be calculated at the closing out price as provided for in the Insolvency Clause, which shall be taken as a basis for settlement, instead of the lowest invoice amount in the circle. In this event respective Buyers shall make payment to their sellers or respective sellers shall make payment to their buyers of the difference between the closing out price and the contract price.

31. Notices

Any notices received after 1600 hours on a business day shall be deemed to have been received on the business day following. A notice to the Brokers or agent shall be deemed a notice under this contract. All notices given under this contract shall be given by letter, if delivered by hand on the day of writing, or by telegram or by telex or by other method of rapid written communication. In case of resales all notices shall be passed on without delay by buyers to their respective sellers or vice versa.

32. Facsimile

A notice despatched by means of facsimile machines will not be deemed a good notice unless an acknowledgement of its recept is obtained.

33. Sampling

The GAFTA Sampling Rules Form No. 124 shall apply where appropriate.

34. Allowances

(a) Natural Weight

To be ascertained by The Grain and Feed Trade Association or other accepted authority, and any deficiency so determined to be allowed for off the contract price in accordance with Rules No. 65 of the Grain and Feed Trade Association.

(b) Moisture

Any excess in the guaranteed maximum moisture content shall be allowed for off the contract price on the following scale:

- 1% for 1% up to the first 1% excess.

- 1 1/2 % for 1% of the excess over the first 1% up to 2%.

- 2 1/2 % for 1% of the excess over 2% up to 3%.

Fractions in proportion.

If the excess exceeds 3 %, the allowance to be mutually agreed or settled by arbitration.

(c) Admixture

Any admixture of dirt and/or foreign substance in excess of the guaranteed maximum shall be allowed for by Sellers at contract price, but any grain or seed other than the grain contracted for be reckoned as foreign substances at half their quantities. The percentage of admixture to be determined by The Grain and Feed Trade Association or its duly appointed Analysts.

35. Domicile

Buyers and Sellers agree that, for the purpose of proceedings either legal or by arbitration, this contract shall be deemed to have bean made in England, and to be performed there, any correspondence in reference to the offer, the acceptance, the place of payment, or otherwise, notwithstanding, and the Courts of England or arbitrators appointed in England, as the case may be, shall, except for the purpose of enforcing any award made in pursuance of the arbitration clause hereof, have exclusive jurisdiction over all disputes which may arise under this contract. Such disputes shall be settled according to the law of England, whatever the domicile, residence or place of business of the parties to this Contract may be or become. Any party to this Contract residing or carrying on business elsewhere than in England or Wales, shall for the purpose of proceedings at law or in arbitration be considered as ordinarily resident or carrying on business at the offices of The Grain and Feed Trade Association, and if in Scotland, he shall be held to have prorogated jurisdiction against himself to the English Courts; or if in Northern Ireland to have submitted to the jurisdiction and to be bound by the decision of the English Courts. The service of proceedings upon any such party by leaving the same at the office of The Grain and Feed Trade Association, together with the posting of a copy of such proceedings to his address abroad, or in Scotland or in Northern Ireland, shall be deemed good service, any rule of law or equity to the contrary notwithstanding. Where goods forming the subject of this contract are not for consumption in Great Britain or Northern Ireland nothing in the foregoing shall make the sale subject to the provisions of the Agriculture Act for the time being in force.

36. Arbitration

(a) Any dispute arising out of or under this contract shall be settled by arbitration in accordance with the Arbitration Rules, No. 125, of The Grain and Feed Trade Association, in the edition current at the date of this contract, such Rules forming part of this contract and of which bath parties hereto shall be deemed to be cognisant.

(b) Neither party hereto, nor any persons claiming under either of them shall bring any action or other legal proceedings against the other of them in respect of any such dispute until such dispute shall first have been heard and determined by the arbitrator(s) or a Board of Appeal, as the case may be, in accordance with the Arbitration Rules and it is expressly agreed and declared that the obtaining of an award from the arbitrator(s) or a Board of Appeal, as the case may be, shall be a condition precedent to the right of either party hereto or of any persons claiming under either of them to bring any action or other legal proceedings against the other of them in respect of any such dispute.

37. International conventions

The following shall not apply to this contract:

(a) the Uniform Law on Sales and the Uniform Law on Formation to which effect is given by the Uniform Laws on International Sales Act 1967;

(b) the United Nations Convention on Contracts for the International Sale of Goods of 1980; and

(c) the United Nations Convention on Prescription (Limitation) in the International Sale of Goods of 1974 and the amending Protocol of 1980.

Sellers ____________ Buyers ____________

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