Description

1. Commodity/Grade/Origin/Specification/Port Location/Customs

Commodity  :  Nickel Ore

Origin​         :  Isabela, Philippines

Specification:  Ni 1.6%   Moisture content  max *5.0   Fe *5% minimum

Location         :  Philippines

 

 

2.  Quantity/Term

Unless otherwise agreed in writing by both parties, the Seller has agreed to sell and deliver, and the Buyer has agreed to purchase and pay for the contractual nickel ore to be delivered under the terms and conditions of this confirmation.

●    The quantity of nickel ore to be shipped pursuant to this  confirmation shall be *0,**0, metric tons plus/minus *0% per shipment.

●    The Seller shall load up to the maximum loadable draft of the vessel provided by the Buyer, which shall not exceed *0,**0 metric tones.

3.      Pricing                             

The applicable price for Lateritic nickel ore in bulk shall be as follows:

For Nickel (Ni) 1.*0% min, Fe *5% minimum, Moisture *5% max is  US$*3.*0 per metric tons FOB MV.

Price Adjustment For Nickel Content for Ni 1.6%

If moisture is higher or lower than *3~*5%, price will be adjusted USD0.*0 per percentage and pro-  rata basis.
 
If Fe is higher or lower than *5% minimum, price will be adjusted USD0.*0 per percentage and pro-rata basis.
For each 0.*0% of Ni content above 1.*0% the price shall be increased by USD 3.*0 per dry metric ton, fraction pro-rata.

For each 0.*0% of Ni content below 1.*0% the price shall be decreased by USD 3.*0 per dry metric ton, fraction pro-rata.

Other adjustments shall be stipulated in the Sales Confirmation for each shipment and should be approved and signed by all parties.  All adjustments shall be settled within *5 days after the departure of the vessel and payment shall be in the form of telegraphic transfer  (TT).  

4.  Rejection of the cargo

Rejection of the cargo may be permitted, if the following situation occurs: 

- Nickel (Ni) content below 1.*0%

Buyer may, at its sole election, receive replacement of the commodity, at Seller’s expense, or receive refund of the payment from Seller, or accept it at a discount price or cancel this agreement.

 

 

5.  Shipping

5.1 The total quantity of the commodity shall be shipped on FOB MV terms basis (Incoterms***0)

5.2 Loading port: Safe loading anchorage area at Dinapigue, Isabela, Philippines

5.3 The loading rate should be at average rate of _______________  tones per weather working day of twenty four (*4) consecutive hours, Saturdays, Sundays and holidays included.

 ​5.4 Destination port: ________________, CHINA

5.5 Dispatch/Demurrage

5.5.1 If loading is not completed within the allowable lay time at the loading port, the seller shall pay to buyer DEM in USD according to Seller’s fixture note. DES is calculated as half as DEM. Dispatch will be paid by the buyer to the seller. Lay time to commence to count *2hours after tended NOR or real loading commerce time if loading start before *2hours after NOR tended.

5.5.2 Loading Port vessel agent appointed by the Buyer.

5.5.3 Performing vessel shall be arranged by the Buyer. The maximum age of the performing vessel shall be *5 years. If the vessel’s age exceeds *5 years, Buyer shall pay OAP (over age premium)

6.  Weight, Quality and Sampling

6.1 Weighing

6.1.1 At the port of loading, weight shall be determined by draft survey by INTERTEK Philippines, INTERTEK/CCIC Philippines shall certify as to the moisture content at time of loading.

6.1.2 At the port of discharge, Buyer shall at its own expense apply the Entry-exit Inspection and Quarantine of the People’s Republic of China (INTERTEK) or INTERTEK/CCIC for weighing. Buyer shall forward to Seller by fax and/or by courier INTERTEK or INTERTEK /CCIC Certificate of Weight and Certificate of quality within *5 days after B/L date.

6.1.3 If the difference of loaded weight on wet basis shown on certificate of weight issued by INTERTEK/CCIC Philippines at the loading port and certificate of quantity issued by INTERTEK at the discharging port is not more than 0.5%(including 0.5%), then the wet weight shown on certificate of weight issued by INTERTEK/CCIC at the loading port shall be final and basis for Seller’s final commercial invoice.
If the aforesaid difference is more than 0.5%, then the arithmetic mean of the two wet weights shall be final and basis for Seller’s final commercial invoice.

6.1.4 If no draft survey is performed at the discharging port, INTERTEK/CCIC Philippines draft survey/Weight Certificate and moisture at the load port shall be final.

 

6.2 Sampling and Analysis

 

6.2.1 At the loading port Seller shall, at Seller’s expense, appoint INTERTEK/CCIC PHILS

ccic Philippines to take samples and conduct analysis of chemical composition for the shipment stipulated in this contract. The analysis result thus determined at loading port shall be used as the basis for the provisional invoice and corresponding payment.

Sample taken at loading port shall be divided into three parts. One is for seller, the second for the possible need of buyer and the third for possible umpire analysis which shall be sealed and kept by INTERTEK Philippines.

The Buyer may, at Buyer’s expense, appoint a representative to be present at the time of sampling at loading port.

6.2.2 Upon arrival at the discharging port, the Buyer shall, at Buyer\'s expense, arrange INTERTEK or INTERTEK/CCIC at the discharging port to take samples and conduct analysis of elements mentioned in clause 1 for the shipment (Ni, Fe, P, and Moisture).

Sample taken at the discharging port shall be divided into three parts. One is for Buyer, the second for the Seller (to be couriered immediately) and the third for possible umpire analysis which shall be sealed and kept by INTERTEK or INTERTEK/CCIC Phils. at the discharging port.

The seller may, at seller’s expense, appoint a representative to be present at the time of sampling at the port of discharge.

6.2.3 If the difference in percentage of moisture, Ni, and Fe contents are within 5%, 0.*5% and 3% content between INTERTEK/ CCIC Philippines at the loading port and INTERTEK at the discharging port, then as agreed by both parties, the arithmetic mean figure of moisture, Ni, and Fe contents shown on INTERTEK Philippines at the loading port and INTERTEK at the discharging port shall be final. If the aforesaid difference is more than 5%, 0.*5% and 3%, both parties shall attempt to settle the differences amicably. In the event the differences could not be settled amicably, then at the request of the Seller or the Buyer, both load port and discharge port samples for umpire shall be analyzed by an umpire agreed between Buyer and Seller and the Certificate of Analysis issued by such umpire shall be final. Cost of umpire analysis is for the account of the losing party.

6.2.4 If no determination of analysis is exercised at the discharging port by INTERTEK/CCIC Phils., the loading port Certificate of Quality issued by INTERTEK Philippines shall be conclusive as to the specification of the Ore and shall form the basis for Final Invoice.

 

7.  Title and Risk

Risk to the shipment of the cargo shall pass from Seller to Buyer when the subject ore passes the ship’s rail at the Loading Port. Thereafter, the Seller shall be entirely free of risk in connection with the ore. Title shall pass from Seller to Buyer upon receipt of the *8% provisional payment.

8.  Insurance

The Buyer shall, on his own account, provide adequate insurances covering all risks of the cargo.

9.  Terms of Payment

There shall be a provisional payment and final payment for the shipment. *0% pre payment is required upon signing of contract and the balance either TT or LC form. The draft L/C terms and conditions should be properly established and acceptable to the Seller before the L/C is formally opened.

9.1 Provisional Payment

Buyer shall make a down payment in the amount of thirty  percent (*0%) base on the initial value of *0,**0 metric tons after signing of contract, verification of documents and mine site/stockpile inspection and immediately open an irrevocable L/C payable at sight acceptable to the Seller within 5 banking days after the signing date of this contract, covering *0% of the contract value; plus/minus *0%. Such L/C shall allow payment at sight in favor of the Seller. The L/C shall be issued by an international prime bank, to be agreed by both the Buyer and the Seller. All banking charges inside the L/C opening bank shall be for the applicant’s account.

In case the Seller does not receive the original aforesaid L/C acceptable to the Seller within the above indicated date, the Seller has the right to cancel the contract and dispose the cargo under this contract at his sole discretion, and the Buyer shall pay the seller 5% of contract value as compensation for Buyer’s breach of the contract. Besides, if the aforesaid compensation money cannot cover Seller’s losses, the Buyer shall pay the Seller such difference between the aforesaid compensation money and all damages and losses incurred by the Seller arising thereof.

*0% of whole cargo value based on the “Seller’s Invoice Weight”, in the wet state basis, to be drawn by the Seller, with the below documents: (Third party documents acceptable, except invoice and documents definite in this contract)

a)           Complete set 3/3, three originals and three copies of “clean on board” bill of lading to show shipper is _________., blank endorsed marked “Freight payable as per charter party” and made out to order.
b)           Signed provisional commercial invoice in 3 originals and 3 copies for *0% of total cargo value, indicating the value of goods shipped, the contract number, L/C number and the name of the carrying vessel.
c)           Certificate of quality issued by INTERTEK/CCIC Philippines in 1 original and 1 copy showing the actual result of all elements called for in this contract.
d)           Certificate of weight issued by INTERTEK/CCIC Philippines in 1 original and 1 copy certifying the actual surveyed weight of the cargo shipped at the loading port.
e)           Certificate of origin issued by Local Government or Local chamber of commerce in 1 original and 1 copy.
f)      Shipping advice issued by Seller to Buyer indicating contract No., LC No., name of goods, name of vessel, quantity loaded, approximate provisional invoice value and B/L date within 2 days after B/L date.
In order to deal with the marine insurance and previous customs formalities for the Buyer, copies of shipping documents (from a – f ) shall be faxed ten (*0) working days after the date of the Bills of Lading by Seller. Some documents can be faxed in advance.

In the calculation of invoice value, two digits after decimal point shall be taken by rounding up the third for invoice amount, weight and chemical contents. 

*0. Taxes, Duties and Charges

Any taxes, duties and other charges imposed on the nickel ore in Philippines in conjunction with this agreement shall be the Seller’s account. However, the Buyer shall indemnify the Seller for any taxes that may be assessed by the Bureau of Internal Revenue which is normally passed on by a seller to a buyer in a sale transaction, such as VAT, but which is deemed inapplicable in the instant Contract in view of the representations of the Buyer that he is purchasing the ore on behalf of a foreign buyer and is therefore not, on that premise, herein imposed by the Seller to the Buyer.

Any taxes, duties and other charges imposed on the nickel ore outside the Philippines in conjunction with this agreement shall be the Buyer’s account.

 

*1. Force Majeure

Neither party shall have any claim for damage whatsoever against the other for failure to carry out any of its obligations (other than its payment obligations) under this agreement as a result of the occurrence of any event beyond its reasonable control and which is not caused by it including but without limiting the generality of the foregoing strike or labour disturbance, fire, riots, power failure caused by natural calamities, typhoons, earthquakes, and war embargoes.

Should the Force Majeure event as above mentioned prevent or hinder or delay the delivery by the Seller or receipt by the Buyer, this agreement shall be deemed suspended so long as delivery by the Seller or receipt by the Buyer is prevented or hindered or delayed by such cause or contingency.

As soon as reasonably possible after the start of Force Majeure event, the affected party shall notify the other party in writing of the Force Majeure event the date on which the Force Majeure event started and the effects of the Force Majeure event on its ability to perform its obligations under this agreement.

Should Force Majeure event renders performance impossible for a period of sixty (*0) days either the Buyer or the Seller, the party not declaring Force Majeure, may cancel this agreement.

Should full performance remain impossible for a continuous period of one year by virtue of the force majeure event, either the Seller or the Buyer, may upon the expiry of such period, terminate this contract by means of one calendar month’s written notice to the other party.

*2. Arbitration

Any dispute arising from this agreement shall be settled as far as possible by friendly negotiations between the Seller and the Buyer. In case, however, the Seller and the Buyer fail to achieve friendly settlement, the parties hereby agree that any dispute arising out or in conjunction with this agreement, including any question with regard to its existence validity or termination, shall be submitted to hk  International Economic and Trade Arbitration Centre for arbitration in accordance with the Rules of Arbitration of the United Nation Commission on International Trade Law (UNCITRAL) and English law shall apply. The award rendered by the arbitrator(s) shall be final and binding upon the parties hereto. Arbitration fee shall be borne by the losing party. Should there be no losing party / winning party, as in the case of a compromise, all expenses shall be shared equally.

*2. Claim for compensation

Buyer may, at their own expenses, arrange for INTERTEK/CCIC inspection of commodity at destination port after discharging, to verify the quantity and quality. If the buyer finds out that, the commodity are not of the required weight and quality, the buyer shall have the right to make a claim on the seller but within sixty-five (*0) days after the B/L date. The claim should be supported by INTERTEK/CCIC survey report conducted based on J.I.S. methods and principles, issued original and copy. The claim is to be settled and solved between both parties of this contract within *5 days after its submission.

*3. Amendments and Waiver

No amendments, variation, addition or substitution to or for this agreement shall be of any force or effect unless such amendments, variation, addition or substitution is in writing. Any waiver must be made in writing.

*4. Non-disclosure of information

A party hereof shall not disclose/use any confidential information arising from this agreement and provided by the other party. 

*5.       Assignment

Each of the Seller and the Buyer may not assign or transfer any of its rights, benefits or obligations under this Contract without the prior written consent of the other Party. 

*6. Governing Law

This Contract shall be governed by and construed in accordance with United Nation Convention on Contract for the International Sale of Goods.  

*7. Cooperation on Further Shipments

The parties agree to cooperate towards an efficient implementation of this Contract and if so thereby execute subsequent contract(s) for additional shipment(s) subject to mutually acceptable terms. 

*8. Special clause

Risks, duties, and rights which resulted from nickel ore’s quality and quantity reasons will be responsible for and solved by its manufacturer.