Contract for Pulses for Human Consumption, Bulk/Bags - FOB Terms

Contract for pulses for human consumption, Bulk/bags - FOB terms

Date: ____________

Sellers: ____________

Intervening as brokers: ____________

Buyers: ____________

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

1. Goods: ____________

2. Packing

If in bags, in new and/or secondhand bags of suitable strength to stand ordinary wear and tear to port of destination. Bags of each mark shall be of uniform weight and shall be property marked.

If in bulk, Sellers shall have the option of shipping up to 10% in bags for safe stowage. Such bags to be taken and paid for as goods.

3. Quantity:

____________ 5% more or less at Buyers' option. In event of the quantity contracted for being for a full and complete cargo and/or cargoes the margin of contract quantity shall be 10% more or less, excess or deficiency over 5% shall be settled at the F.O.B. price on date of last bill of lading; value shall be fixed by arbitration unless mutually agreed. In the event of more than one delivery being made each delivery shall be considered a separate contract, but the margin on the mean quantity sold shall not be affected thereby.

4. Price

at: ____________ per tonne of 1000 kilograms delivered Free on Board Buyers' Vessel(s)

5. Brokerage:

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

6. Quality

¹Specifications: ____________

Any excess or deficiency as the case may be, shall be allowed for by Sellers at contract price.

²____________ to be certified by an independent internationally recognised body at origin. Should Sellers fail to provide a certificate which is independent; (e.g. those based upon samples not independently drawn, or those which fail to identify the goods shipped with the goods inspected), Buyers have the option to instruct their representatives to draw and seal delivery samples within 10 days of arrival, for the purposes of re-grading and/or analysis. Sellers' representatives to be in attendance at sampling when duly appointed immediately after receipt of notice from Buyers of their intention to sample. In such case Buyers and Sellers agree to accept the result of re-grading/analysis. Charges for sampling, re-grading and/or analysis to be borne half by Buyers and half by Sellers.

F.A.Q.³of fair average quality of the season's shipment at time and place of loading, to be assessed upon the basis of, and by comparison with The Grain and Feed Trade Association's official F.A.Q. Standard of the month during which the bill of lading is dated. In the event of no F.A.Q. Standard being established by the Association, the Arbitrator(s) shall in his/their discretion decide what is the fair average quality. An average sample of the delivery shall be taken and sealed jointly at port of loading by the Representatives of the Shipper and the Representatives of the Buyers and shall be forwarded immediately to the Association for the purpose of establishing the F.A.Q. Standard. The expenses of such sampling and forwarding shall be paid half by the Sellers and half by the Buyers. Place of loading under this contract shall be understood as the port or group of ports adopted by the appointed Standards Committee in making the Standard. If the difference between the delivery and the F.A.Q. Standard shall not amount to 0.50% on contract price, no allowance for quality shall be due; otherwise the Buyers shall be entitled to the full difference in value.

⁴ Sample at time and place of shipment about as per sealed sample marked ____________ in possession of ___________; the word "about" when referring to quality shall mean the equivalent of 0.50% on contract price. The goods are 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. Goods must be sound, uniform, free from live, and practically free from dead insect infestation Delivery to be made in good condition.

7. Export licence

To be obtained by: ____________

Ocean Vessels: Shipment by first class power-engined ship(s) classed not lower than Lloyds 100A1 or equivalent classification in any register which is a member of The International Association of Classification Societies, excluding tankers and vessels which are either classified in Lloyd's Register or described in Lloyd's Shipping Index as "Ore/Oil" Vessels.

(b) Coaster(s): Per good grain-carrying full powered engine driven power vessel(s) excluding tankers and vessels which are either classified in Lloyd's Register or described in Lloyd's Shipping Index as "Ore/Oil" Vessel(s)

Buyers to ensure that the vessel(s) hold(s) are clean, easily accessible and if necessary, cargo duly protected.

9. Delivery

Buyers shall tender vessel(s) in readiness to load between both dates inclusive. Sellers shall be entitled to receive at least consecutive days notice of probable readiness of vessel and of the estimated tonnage required. Vessel(s) to load in accordance with the custom at the port of loading unless otherwise stipulated. Bill of lading shall be considered proof of delivery in the absence of evidence to the contrary. Buyers have the right to substitute the nominated vessel. In case of re-sales a provisional notice shall be passed on without delay, where possible, by telephone or facsimile and confirmed by telex or telegram on the same day. In any event, all notices shall be passed on by telegram or telex without delay. The Notices Clause shall not apply.

10. Extension of delivery

The contract period of delivery shall, if desired by Buyers, be extended by an additional period of 30 consecutive days provided that Buyers give notice in accordance with the Notices Clause not later than the next business day following the last day of the delivery period. In this event Sellers shall carry the goods for Buyers' account and all charges for storage, interest, insurance and other such normal carrying expenses shall be for Buyers' account. Any differences in export duties, taxes, levies etc., between those applying during the original delivery period and those applying during the period of extension shall be for the account of Buyers and Sellers shall produce evidence of the amounts paid for if required by Buyers and in such cases Clause 13 shall not apply. Should Buyers not have taken delivery by the end of this extension period, Sellers shall have the option of declaring Buyers to be in default or shall be entitled to demand payment at contract price plus such charges as stated above, less current F.O. B. charges, against warehouse warrants or certificate of entitlement and the tender of such warehouse warrants or certificate of entitlement shall be considered complete delivery of the contract on the part of the Sellers.

11. Payment

Payment to be by cash in ____________

⁵ (a) in exchange for and on presentation of shipping documents

⁶ (b) by irrevocable Letter of Credit to be made available to Sellers by _____________

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. 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

12. 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.

13. Duties, taxes, levies, etc.

All export duties, taxes, levies, etc., present or future, in country of origin or of the territory where the port or ports of shipment named herein is/are situate, shall be for Sellers' account.

14. Weighing

The whole delivery shall be weighed at time of loading. Sellers and Buyers and/or their Representatives shall have the right of supervision.

15. Sampling

Samples required under this contract shall be taken in accordance with GAFTA Form No. 124, and when required for analysis to be done by the Association's duly appointed Analysts, shall be forwarded to the Association immediately after staling. In the case of F.A.Q., an average sample of the delivery shall be taken and sealed jointly at Port of Loading by the representatives of the Sellers and the Buyers, and shall be forwarded immediately to the Association for the purpose of establishing the F.A.Q. Standard. The expenses of such sampling and forwarding shall be paid half by Buyers and half by Sellers. When superintendents are required for the purposes of supervision and sampling of the goods in accordance with thew Rules, then the parties agree to appoint, from superintendents in the GAFTA Approved Register of Superintendents.

16. Insurance

On terms not less favourable than those set out hereunder, and in detail in The Grain and Feed Trade Association Form No. 72, Insurance.

To be effected by Buyers with first class underwriters and/or approved companies. Buyers% shall supply Sellers with confirmation thereof at least 5 consecutive days prior to expected readiness of vessel(s). If Buyers fail to provide such confirmation, Sellers shall have the right to place such insurance at Buyers' risk and expense.

17. 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 port or ports of shipment 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 he cancelled. Sellers shall advise Buyers without delay with the reasons therefor and, if required, Sellers must produce proof to justify the cancellation.

18. Strikes

1. Should delivery of the goods or any part thereof he prevented at any time during the last 28 days of guaranteed time of delivery, or at any time during guaranteed contract period if such be less than 28 days, by reason of riots, strikes or lock-outs at port(s) of loading or elsewhere preventing the forwarding of the goods to such port(s), then the Shipper shall be entitled at the termination of such riots, strikes or lock-outs to as much time, not exceeding 28 days, for delivery at such port(s) as was left for delivery under the contract prior to the outbreak of the riots, strikes or lockouts, and in the event of the time left for delivery under the contract, being 14 days or less, a minimum extension of 14 days shall be allowed. In the event of further riots, strikes or lock-outs occurring during the time by which the guaranteed time of delivery has been extended by reason of the operation of the provisions of the foregoing paragraph, the additional extension shall be limited to the actual duration of such further riots, strikes or lock-outs. In case of non-shipment under the above conditions the date of default shall be similarly deferred.

2. The Shipper shall give notice by telegram or telex naming the port(s) not later than 3 business days after the last day of guaranteed time for delivery if he intends to claim an extension of time for delivery, such notice shall limit the port(s) for delivery after expiry of contract period to those from which an extension is claimed. All such notices shall be passed on in due course.

3. If required by Buyers, Sellers must provide documentary evidence to establish any claim for extension under this clause.

19. 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.

20. Facsimile

Notwithstanding anything in this contract to the contrary, notices despatched under this contract shall NOT be transmitted by means of facsimile machines.

21. 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 delivery shall not be affected by this clause.

22. 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 all cases the damages shall, in addition, include any proven additional expenses which would directly and naturally result in the ordinary course of events from the defaulter's breach of contract, but shall in no case 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.

(c) Damages, if any, shall be computed on the quantity called for, but if no such quantity has been declared 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.

23. Circle

Where Sellers re-purchase 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 re-purchased, 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 delivery at the same port(s) of delivery during the same period of delivery). Different currencies shall not invalidate the circle. Subject to the terms of the Prohibition Clause in the contract, if the goods are not delivered invoices based on the mean contract quantity, or if the goods have been delivered invoices based on the delivered 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 last day for delivery, or, should the circle not be ascertained before the expiry of this time, then 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 he replaced by the market price on the first day for contractual shipment and invoices shall be scaled 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.

24. 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 re-purchase 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.

25. Domicile

Buyers and Sellers agree that, for the purpose of proceedings either legal or by arbitration, this contract shall be deemed to have been 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.

26. 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 both parties hereto shall be deemed to be cognisant.

(b) Neither party hereto, nor any persons claiming under either of term 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.

27. 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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