LOUIS DREYFUS COMMODITIES METALS GENERAL TERMS
AND CONDITIONS FOR REFINED METALS 2015
opened with, or confirmed by, a first class international bank
acceptable to LDCM, in a form in all respects acceptable to
LDCM;
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“Material Adverse Change” means, any change which, in the
reasonable opinion of LDCM, may be expected to adversely affect
the Counterparty’s ability to perform any of its obligations under
the Contract including but not limited to any change in: (a) the
credit worthiness and/or credit rating of the Counterparty or its
Affiliate; or (b) the ability of the Counterparty or its Affiliate to
perform any payment obligations under the Contract or any credit
support document under which LDCM is a beneficiary; or (c) the
legality, validity or enforceability of the Contract; or (d) the
ownership or control of the Counterparty.
DEFINITIONS
“Affiliate” means any entity; (i) at least fifty percent (50%) of
whose voting shares are owned or Controlled, directly or
indirectly, by a Party; (ii) which owns or Controls, directly or
indirectly, at least fifty percent (50%) of the voting shares of a
Party; (iii) at least fifty percent (50%) of whose voting shares are
under common ownership or Control, directly or indirectly, with
the voting shares of a Party. "Control"/"to control" in relation to
any Party means (i) the ownership of more than 50% of the voting
rights in the Party or (ii) the right to appoint or dismiss a majority
of the board of directors or other similar managing body of the
Party or (iii) the right to direct the management policies of the
Party";
“Associated Contract” means, exclusive of the Contract, any
other contract(s) concluded between a Louis Dreyfus
Commodities metals company and the Counterparty or its
Affiliate;
“Buyer” means the Party who contracts to buy the Products from
the Seller (Buyer may be either LDCM or the Counterparty);
“Contract”, and any derivation thereof (within context), means
these GTCs together with (i) any Contract Confirmation or, in the
absence of a Contract Confirmation, (ii) any terms agreed
between the Parties as may be ascertainable from evidence;
“Contract Confirmation” means the written document, sent by
LDCM to the Counterparty, confirming the agreement reached
between the Parties in respect of any Contract (inclusive of any
appendices and amendments);
“Party” means individually LDCM or any Counterparty;
“Parties” means LDCM and any Counterparty(ies) collectively;
“Product(s)” means the product as agreed in the Contract;
“Regulation(s)” means any applicable laws, statutes, statutory
instruments, rules, regulations, sanctions, boycotts, embargoes,
directives or decrees of any state (inclusive of the European
Union, and the United Nations), government, instrument of
government or public authority and/or, if the context permits, any
agreements, concessions and arrangements with any
government, instrument of government or public authority;
“Seller” means the Party who contracts to sell the Products to
the Buyer (Seller may be either LDCM or the Counterparty).
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SCOPE OF APPLICATION
2.1
Unless otherwise expressly agreed these General Terms
and Conditions apply exclusively to, and are incorporated
by reference into, all Contracts for the purchase and sale
of Products by LDCM whether such Contracts are
concluded orally, in writing, or otherwise. Any contradictory
and/or supplementary general conditions shall not apply
and are expressly excluded, even in the event that (i)
LDCM does not expressly object to such conditions, or (ii)
if LDCM fulfills its obligations unconditionally, in awareness
of the contrary or variant general conditions.
2.2
These GTCs are intended to be supplemented by a
Contract Confirmation. In the event of conflict, ambiguity,
or inconsistency between the provisions of the GTCs and
the Contract Confirmation, the provisions of the Contract
Confirmation shall prevail. In the absence of a Contract
Confirmation the Contract shall comprise the GTCs and
any other agreed terms, as ascertainable by evidence, or
otherwise.
2.3
No variation of these General Terms and Conditions shall
bind LDCM unless agreed in writing by an authorised
representative of LDCM.
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PRICE
3.1
Price shall be as set out in the Contract Confirmation, or as
otherwise agreed.
“Counterparty” means any contractual counterparty who has
concluded a Contract with LDCM;
“Delivery”, and any derivation thereof (within context), means the
transfer of the Products from the Seller to the Buyer in
accordance with the agreed Contract terms and any applicable
Incoterm;
“General Terms and Conditions” (“GTCs”) means these
General Terms and Conditions of sale;
“Incoterm(s)” means the International Commercial Terms 2010;
“LDCM” means any Louis Dreyfus Commodities metals
company, including without limitation, Louis Dreyfus Commodities
Metals Suisse S.A., LD Commodities Metals Asia Pte. Ltd., and
LD Commodities Metals de Mexico S.A. de C.V.;
“Liability” means any liability, indemnity, cost, damage, loss,
charge, expense, penalty, compensation, or other similar burden
(inclusive of applicable interest) attributable to a Party and arising
under the Contract, Regulation, at law, or otherwise;
“L/C” means an irrevocable documentary letter of credit or
standby letter of credit, or a letter of credit in another agreed form,
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Louis Dreyfus Commodities Metals General Terms and Conditions for Refined Metals 2015
3.2
Parties shall not be obliged to perform any Contract at a
price based on a manifest typing or clerical error.
3.3
Under Contract the Parties may agree to affect payment
against a provisional price prior to the final price being
fixed. Unless otherwise agreed, or in the event the Parties
cannot mutually agree upon the provisional price, the
provisional price shall be calculated as the average of the
official LME cash settlement price for the Products for the
five (5)market trading days immediately prior to the
provisional price invoice date.
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DELIVERY, TITLE AND RISK
4.1
Save where specifically provided to the contrary, all trade
terms in the Contract will be governed by and interpreted in
accordance with Incoterms. In the event of any
discrepancy or inconsistency between Incoterms and the
Contract the terms of the Contract shall prevail.
4.2
Unless otherwise agreed in the Contract, title to the
Product shall transfer to the Buyer upon Seller’s receipt of
full payment. Or in the event the Contract calls for
provisional payments title shall transfer to the Buyer upon
Seller’s receipt of the first provisional payment.
4.3
In circumstances where LDCM is the Buyer of Product
delivered in-warehouse and (i) the Counterparty cannot
provide LDCM with evidence of title as set out in clause
16.1, or (ii) LDCM has demonstrable reason to believe title
to the Product is not free and clear of competing claims of
title, then LDCM may reject the delivered Product. Upon
such rejection the Counterparty may either establish the
title of the Product to the satisfaction of LDCM or replace
the Product.
4.4
Transfer of risk from Seller to Buyer shall be on Delivery in
accordance with the relevant Incoterm.
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LOSS OR DAMAGE
5.1
In the event of a total loss of Product after risk has passed
the Buyer shall pay against Seller‘s invoice for the entire
shipment value of Product based on Seller's certificate of
weight, sampling, and analysis.
5.2
In the event of partial loss of the Product after risk has
passed, the amount to be paid by Buyer in respect of the
Product lost or damaged will be the difference between the
bill of lading weight and the discharge weight of the
remaining contractual Product and will be based on the
analysis determined for the remaining Product at the port
of discharge.
5.3
In the event of loss or damage, whether partial or total, to a
shipment of Product following transfer of risk, Seller will not
be obliged to replace the lost or damaged quantity.
5.4
Buyer will be liable to pay for Product that has been lost or
damaged in accordance with the Contract, and Seller will
not be obliged to await the settlement of any insurance
claim.
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QUANTITY AND QUALITY
6.1
Unless otherwise stated in the Contract the Seller’s weight
certificate, or supplier’s weight certificate, whichever is
applicable, shall be final and binding.
6.2
Quality determination shall be as agreed in the Contract.
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QUANTITY AND QUALITY CLAIMS
7.1
The Buyer shall notify the Seller in writing of any claim or
challenge, and the details of such claim or challenge,
relating to the quality or quantity of any shipment of
Product within 30 (thirty) days of the Buyer’s receipt of the
relevant Product. All claims must be accompanied with
necessary documentary evidence of non-conformance
including photographs, shipment details, lot numbers,
marks and identifications of the relevant Products. The
validity of any such quantity or quality claim is conditioned
upon the Buyer maintaining the relevant Product in its
Delivered state, un-consumed and segregated from other
possible contaminating materials pending the final
determination of the claim.
7.2
Buyer’s right to claim against the weight of any shipment of
Product is limited to circumstances where the Delivered
weight differs by more than 0.2% from the weight results
evidenced by the Seller under clause 6.1.
7.3
Any claim in respect of quality or weight, or challenge to
the results evidenced by the Seller shall be treated as
waived and absolutely barred if timely notice, details of
such claim, and pre-conditions for such claim have not
been strictly observed in accordance with clause 7.1.
7.4
Where the Buyer makes a compliant claim in respect of
quality the Parties shall agree to appoint an independent
inspector to inspect and sample any shipment of Product in
accordance with current international standard practices.
The independent inspector shall analyse the quality of the
Product and issue a certificate stating the results of its
analysis. The independent inspector’s certificate of
analysis shall be submitted by email to both Parties
simultaneously. The independent inspector’s certificate of
analysis shall be final and binding on the Parties (save for
fraud or manifest error).
Where the independent
inspector’s certificate of analysis determines that the
quality of the Product is not in accordance with the terms of
the Contract, the Seller shall bear the costs of the
independent inspector. Where the independent inspector
determines that the quality of the Product is in accordance
with the terms of the Contract, the Buyer shall bear the
costs of the independent inspector.
7.5
Where the Buyer makes a compliant claim in respect of
quantity the Parties shall agree to appoint an independent
inspector to weigh the shipment of Product. The
independent inspector shall submit its weight results by
email to both Parties simultaneously. Where the
independent inspector determines that the Delivered
weight of the relevant shipment of Product is more than
0.2% above or below the weight results evidenced by the
Seller under clause 6.1, the independent inspector’s
results shall be final and binding on the Parties (save for
fraud or manifest error) and the Seller shall bear the costs
of the independent inspector’s weight determination.
Where the independent inspector determines that the
Delivered weight of the shipment of Product is not more
than 0.2%) above or below the weight results evidenced by
the Seller under clause 6.1, the weight results obtained
pursuant to clause 6.1 shall apply and the Buyer shall bear
the costs of the independent inspector’s weight
determination.
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PAYMENT AND CREDIT SUPPORT
8.1
Due and timely payment is a condition of the Contract.
8.2
Payment obligations which arise under Contract shall be
made against presentation of a commercial invoice
concurrent with any contractually agreed documents
required for payment. Payment shall be settled by the
Party obligated to pay in accordance with the Contract.
8.3
Payment under the Contract shall be in compliance with
the currency, form and conditions of payment specified in
the Contract, without adjustments, discounts, deductions,
set-off, or withholdings of any kind.
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Louis Dreyfus Commodities Metals General Terms and Conditions for Refined Metals 2015
8.4
8.5
If payment is agreed by L/C then such L/C shall be in place
on or before the date agreed between the Parties and if no
such date is agreed then 10 (ten) days prior to the start of
the Contractual shipment period. The L/C shall be for an
amount sufficient to cover the mean price under the
Contract plus 10 (ten) percent. All L/C charges are for the
account of the Buyer. The L/C shall operate in accordance
with its terms but no term within the L/C shall operate to
vary the terms of the Contract unless expressly agreed by
the Parties in writing.
If at any time during the term of the Contract (when LDCM
is Seller) the market value of the Products has decreased
or increased by more than 20% from the agreed Contract
price, or in the reasonable opinion of LDCM, sufficient
credit for the Contract (or any other Associated Contract)
has not been established, or if LDCM reasonably doubts
the due performance of the Contract (or any other
Associated Contract) [inclusive of any demurrage
obligations] LDCM may upon 2 (two) Geneva banking days
notice to the Counterparty change the terms of payment to
require the Buyer to provide satisfactory credit support
and/or require satisfactory security (“Credit Support”) as a
condition precedent to performance by the LDCM under
Contract, including without limitation requiring an advance
payment, a deposit, an executed and enforceable parental
guarantee in LDCM’ss wording,
a L/C, or a bank
guarantee. In the event the Counterparty fails to provide
timely Credit Support then such failure shall be an Event of
Default, and LDCM’s Contract obligations shall be
immediately suspended without notice.
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VAT
9.1
Unless otherwise expressly provided in this Contract, the
price specified in this Contract (whether fixed or fixed
pursuant to the terms of this Contract) is exclusive of VAT.
9.2
The Parties recognize that VAT may be due on individual
Deliveries made under this Contract at different rates in
different countries and the Parties agree to supply all
necessary information required to issue invoices compliant
with the VAT laws of the country in which the Delivery
occurs, and all necessary information required to file
complete and accurate returns with the appropriate taxing
authorities.
9.3
If VAT is not to be assessed on the Delivery, the Buyer
shall be responsible for supplying all necessary
documentation which Seller needs to not assess VAT on
the Delivery. If the Buyer fails to provide such
documentation to the Seller, the Seller may assess VAT on
the Delivery at the rate applicable in the country in which
the Delivery is assessed for VAT. If the Seller assesses
VAT on the Delivery, the Buyer shall pay VAT as specified
in the Seller’s invoice.
9.4
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If the Seller initially charged VAT on the Delivery but the
Buyer subsequently presents documents to Seller which
allow for the Delivery to be free from VAT, the Seller shall:
(a) return the amount of VAT in respect of the Delivery
actually recovered from the relevant taxing authority , in
the currency in which it is received, and within 3 (three)
working days of receipt by the Seller of payment from such
taxing authority; and (b) present to the Buyer a
supplemental invoice on which no VAT is assessed on the
Delivery.
EXCISE, CUSTOM DUTIES, AND TARIFFS
10.1 Without prejudice to VAT provisions set out in the Contract,
any taxes, tariffs and duties whether existing or new on the
Product or on commercial documents relating thereto
imposed in the country of origin or shipment shall be borne
by the Seller. Any taxes, tariffs and duties whether existing
or new on the Product or on commercial documents relating
thereto imposed in the country of destination shall be borne
by Buyer.
10.2 The Counterparty shall provide LDCM with all information
and documents required by LDCM to observe the
Regulations relating to excise, custom duty, or tariffs. In the
case of Delivery of Products subject to excise, custom duty,
or tariffs the Counterparty undertakes to observe the
applicable Regulations. In the case of Deliveries of
Products under duty suspension, the Counterparty shall, in
particular, be required to observe all applicable procedures
and Regulations. The Counterparty shall, upon first request
of LDCM, indemnify and hold harmless LDCM from and
against any Liability (including claims for excise duty,
custom duty or any other payments) arising from the
Counterparty’s breach of obligations under this clause.
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INSURANCE
Each Party undertakes to obtain and maintain a sufficient liability
insurance policy with a reputable insurance company, as from
the effective date of the Contract, covering all the risks
associated with its activities, arising out of or as a consequence
of its obligations under the Contract. Each Party shall provide the
other Party, upon request, with an insurance certificate.
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DEFAULT AND TERMINATION
12.1 The Party in default shall be
other Party, not in default,
Party”. Under the Contract
individually, or collectively,
Default”:
the “Defaulting Party” and the
shall be the “Non-Defaulting
12.1.1 to 12.1.3 below shall
be defined as an “Event of
12.1.1 the Defaulting Party is in breach of or omits to
observe any of the obligations or undertakings expressed
to be assumed by it under the Contract, including but not
limited to; (a) the failure by the Defaulting Party to pay any
amounts owing when due without adjustments, discounts,
deductions, set off, or withholdings of any kind; and/or (b)
the failure by the Defaulting Party to take Delivery during a
period, or at an agreed date, of any Products as provided
for in the Contract; and/or (c) the Defaulting Party loses or
does not possess any licence, or consent which is
necessary to perform the Defaulting Party’s Contract duties
and obligations; and/or (d) performance of the Contract
becomes contrary to any Regulations imposed by any
government, or any quasi-governmental entity having
jurisdiction over the Defaulting Party whose performance is
affected;
12.1.2 the Defaulting Party, or any Affiliate of the
Defaulting Party, is generally not paying its debts as they
become due, files or consents by answer or otherwise to
the filing against it of any petition or case seeking relief
under any bankruptcy, liquidation, insolvency or similar law
(collectively "Insolvency Laws"), becomes bankrupt or
insolvent, has an asset value less than its liabilities (taking
into account contingent and prospective liabilities), has any
petition or proceedings under Insolvency Laws
commenced against it, makes a general assignment for the
benefit of its creditors, applies for, or consents to, the
appointment of a custodian, receiver, trustee, conservator
or other officer(s) with similar powers over it or over any
substantial part of its property;
12.1.3 an Associated Contract, entered into by the
Defaulting Party or one of its Affiliates is in default.
12.2 Suspension of the Non-Defaulting Party’s performance
obligations under the Contract shall be effective
immediately upon occurrence of an Event of Default.
Without prejudice to lesser termination time limits as set
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Louis Dreyfus Commodities Metals General Terms and Conditions for Refined Metals 2015
out in the Contract the Defaulting Party shall have five (5)
running days (or a longer time limit chosen at the NonDefaulting Party’s sole discretion) after notice of an Event
of Default to remedy such. If the Event of Default remains
unremedied at the end of the default notice time period, or
if the Event of Default is not capable of remedy, the
Contract shall be immediately terminated without notice.
12.3 In any event, the Defaulting Party shall immediately
provide written notice to the Non-Defaulting Party of the
occurrence or expected occurrence of an Event of Default.
12.4 If the Counterparty is the Defaulting Party, then,
notwithstanding any other provision of the Contract to the
contrary, LDCM shall be free to assign to any third party
any and all of LDCM’ss rights under the Contract, whether
present or future, actual or contingent, including, without
limitation: (i) any and all rights to require the due and
punctual observance, discharge and performance by the
Counterparty of all the Counterparty’s obligations and
Liabilities under the Contract;(ii) all rights to money
received or receivable by LDCM from Counterparty under
the Contract as a Liability, or otherwise; (iii) the right to
claim for any Liability, or any other available remedy, under
the Contract.
12.5 Notwithstanding any other provisions in the Contract to the
contrary if the Counterparty is the Defaulting Party then
LDCM shall have the right, exercisable in its sole discretion
at any time, to adjust, discount, deduct, set-off, or withhold
(collectively “Set Off”) any or all amounts which LDCM
owes to the Counterparty (under Contract, Associated
Contract, or otherwise) against any or all amounts which
the Counterparty or any Affiliate of the Counterparty owes
to LDCM or its Affiliate (whether under Contract,
Associated Contract, or otherwise). If an obligation is
unascertained, LDCM may, in good faith, estimate the
amount of that obligation and Set Off amounts owed in
respect of the estimate, subject to the relevant Party
accounting to the other Party when the obligation is
ascertained.
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INTEREST
A Party shall pay interest daily on any amount due and owing by
that Party under the Contract and not paid on the due date.
Interest shall be calculated at the LIBOR US DOLLAR monthly
rate plus 5% per annum (pro rata for part thereof) and shall be
compounded monthly.
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FORCE MAJEURE
14.1 Prevention, curtailment, delay, hindrance, interference with,
or reduction of, a Party’s ability to perform the terms,
provisions or conditions of this Contract shall not give rise to
any claim by a Party hereto against the other, or be deemed
to be a breach of this Contract if the same is proven to be
caused by, or arise out of; (i) war (whether declared or not),
hostilities, sabotage, blockade, revolution, or disorder; (ii)
expropriation or nationalization; (iii) cutoff of energy
supplies to facilities for the production of the Product; (iv)
disruption of rail transportation of Product to the load port,
and consequent delays; (v) breakdown or damage to
storage or loading facilities; (vi) prevention of loading by
terminal or port authorities; (vii) embargoes or export
restrictions; (viii) acts of God, explosion, fire, frost,
earthquake, storm, lightning, tide, tidal wave or perils of the
sea; (ix) accidents of navigation or breakdown of or injury to
vessels; (x) accidents to or closing of harbours, docks,
straits, canals or other assistances to or adjuncts of
shipping or navigation; (xi) strikes, lockouts or other labour
disturbances; (xii) or any other event, matter, or occurrence
of the same class or kind as those set out above; which is
not reasonably within the control of the Party affected
thereby (the “Relying Party”) and which the Relying Party is
unable to reasonably prevent, avoid or overcome ( a “Force
Majeure Event”). Force Majeure Events shall apply equally
to LDCM, and to LDCM’ss supplier(s) of Products.
14.2 The Relying Party shall promptly after the Force Majeure
Event becomes known to the Relying Party give notice in
writing to the other Party of the Force Majeure Event and
the effects, or the reasonably anticipated effects, on the
Relying Party’s ability to perform; including as much detail
as available, as well as the relief sought by the Relying
Party. Force Majeure Event relief is conditional upon notice
and effective from the time of commencement of the Force
Majeure Event. During the Force Majeure Event both
Parties will jointly use reasonable commercial efforts to
mitigate the effects of the Force Majeure Event.
14.3 Unless otherwise agreed by the Parties in writing, the
appropriate relief for a Force Majeure Event shall be as
follows: (i) due to a Force Majeure Event which prevents
and renders impossible the Relying Party’s Contract
performance during the current shipment period either Party
may immediately terminate the affected performance
obligations under the Contract without Liability. Subsequent
performance obligations under the Contract (inclusive of but
not limited to future shipment period Delivery obligations)
shall survive such termination. If the Force Majeure Event
continues unabated into subsequent shipment periods
preventing and rendering impossible future performance
obligations as they become due, then either Party shall be
free, at that time, to terminate those affected performance
obligations; (ii) due to a Force Majeure Event which curtails,
delays, hinders, interferes with, or reduces the Relying
Party’s Contract performance for the current shipment
period either Party may immediately suspend the affected
performance obligations under the Contract without Liability.
If the Force Majeure Event continues unabated into the next
shipment period either Party may terminate the
unperformed obligations from the previous shipment period,
and concurrently suspend the performance obligations for
the current shipment period.
14.4 A Force Majeure Event shall not operate to suspend any
payment obligation(s) accrued by a Party prior to the written
notice of a Force Majeure Event.
14.5 Notwithstanding the foregoing provisions of this clause
should a Force Majeure Event continue unabated for six (6)
months the other Party, upon notice to the Relying Party,
shall be free to terminate the Contract without Liability.
14.6 Notwithstanding the foregoing provisions of this clause, (i)
the Buyer will be obliged to accept Delivery of and pay for
Product which has been booked aboard a vessel prior to
Seller being notified by Buyer of a Force Majeure Event; (ii)
a Force Majeure Event shall not include any event arising
out of the acts of any government or sovereign entity which
owns, directly or indirectly, any interest in the Relying Party.
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LIMITATION OF LIABILTIY
15.1 Except as specifically provided in the Contract (including
but not limited to any indemnity agreed by the
Counterparty), in no event, including the negligent act or
omission on its part, shall either Party be liable to the
other, whether under Contract, tort, breach of statutory
duty or otherwise, in respect of any indirect or
consequential losses or expenses including (without
limitation) if and to the extent that they might otherwise not
constitute indirect or consequential losses or expenses,
loss of anticipated profits, plant shut-down or reduced
production, loss of power generation, blackouts or
electrical shutdown or reduction, goodwill, use, market
reputation, third party claims, business receipts or
contracts or commercial opportunities, whether or not
foreseeable.
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Louis Dreyfus Commodities Metals General Terms and Conditions for Refined Metals 2015
15.2 All claims arising from or in connection with the Contract
shall be limited to an amount not exceeding the agreed
price for the Product sold under the Contract.
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17.1 Buyer and Seller each represent and warrant that:
15.3 Notwithstanding the above provision or any other provision
to the contrary, LDCM shall be entitled to recover any
losses suffered in connection with any hedging or
derivative instrument which may relate to the Products.
Such losses, if suffered by LDCM, shall always be deemed
to be foreseeable and recoverable.
15.4 Without prejudice to any other lesser time limit set out in
the Contract or any other provisions requiring compliance
within a given period, all of which shall remain in full force
and effect, any claim whatsoever between the Parties shall
be deemed and treated as waived and absolutely time
barred unless such claim has been commenced by the
claimant within one (1) year from the date of Delivery, or in
the absence of Delivery, from the date (or expiry of the
date range) against which it is claimed the Products were
contracted to be Delivered.
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neither it nor any person or entity that owns or controls it,
nor any of its subsidiaries, any of its directors, officers or
employees nor, to its knowledge, any of its servants,
agents and representatives is a designated target of trade
sanctions promulgated by the U.S., E.U., U.N.,
Switzerland or any other jurisdiction having a legal nexus
with this Contract (“Sanction Laws”);
17.2 Buyer and Seller each undertake that:
17.2.1
for the purposes of this Contract no originating
country, transit country, destination country, document,
person, entity or means of transportation or payment
associated directly or indirectly with this Contract shall (i)
cause the Buyer or Seller to be in a position of noncompliance with or in contravention of Sanctions Laws, or
(ii) be directly or indirectly associated with Syria, Sudan,
Iran, Cuba and Myanmar, or any other country that is, or
becomes, subject to a comprehensive Sanction Laws
regime;
REPRESENTATIONS AND WARRANTIES
16.1 Seller warrants that it has title to the Products sold under
the Contract. Seller shall employ best efforts to comply
with Buyer’s reasonable request to evidence such title
(through
the
provision
of
documents,
further
representations or undertakings, or otherwise).
16.2 Seller warrants the quality of the Product complies with the
contracted specifications. All warranties and conditions
implied by law, including but not limited to, any warranty of
satisfactory quality and/or fitness for any particular purpose
are expressly excluded and disclaimed.
16.3 Each Party warrants that it has entered into the Contract in
a commercial capacity and that with respect to the
Contract it is in all respects subject to civil and commercial
law in the jurisdictions within which it operates. Each Party
hereby consents generally in respect of any legal action,
arbitration or other proceedings arising out of or in
connection with the Contract to the giving of any relief, or
to the issue of any process in connection with such action
or proceedings irrespective of the jurisdiction in question.
Each Party hereby irrevocably and unconditionally and to
the fullest extent permitted by law waives any rights of
sovereign immunity which it may have now or which it may
subsequently acquire in respect of its position or any
property and/or assets (present or subsequently acquired
and wherever located) belonging to that Party.
16.4 Each Party represents and warrants, at the time this
Contract is entered into and at all times while this Contract
is in effect, that (i) it is a legal entity duly organised for an
unlimited duration and is validly existing under the
Regulations of its jurisdiction of incorporation and is in
good standing (where such concept applies), with full
power and authority to own its assets and to conduct its
business as presently being conducted; (ii) it has the
corporate power and authority to execute, deliver and
perform its obligations under this Contract and has taken
all necessary corporate and legal actions to authorise the
execution, delivery and performance of this Contract in
accordance with its terms, and has obtained and/or fulfilled
all licenses, registrations, or other necessary requirements
for or in connection with the execution or delivery and
performance of this Contract; (iii) this Contract, and all
other agreements and documents to be executed by the
relevant Party pursuant to, or in connection with, this
Contract constitute legal, valid and binding obligations,
enforceable against the relevant Party in accordance with
the Contract terms; (iv) the execution and delivery of this
Contract and the obligations hereunder do not and will not
conflict with the Regulations by which the Party is
governed.
TRADE SANCTIONS
17.2.2
it and its servants, agents and representatives
will fully comply with all applicable Sanction Laws;
17.3 The Parties acknowledge that Louis Dreyfus Commodities
Metals Suisse S.A. cannot be a party to a Contract where
any party, originating country, transit country, destination
country, document, person, entity or means of
transportation associated with the Contract is directly or
indirectly associated with Syria, Sudan, Iran, Cuba, North
Korea, Myanmar, or any other country that is, or becomes,
subject to a comprehensive Sanction Laws regime
(“Comprehensive Sanction Target”). In the event this
Contract, or part thereof, becomes in any way associated
with a Comprehensive Sanction Target, the Buyer or
Seller (as the case may be) shall be obliged to give the
other party immediate notice. Upon receipt of such notice
Buyer and Seller shall promptly cooperate to avoid any
Contract association with a Comprehensive Sanction
Target (inclusive of assignment or novation of all or part of
the Contract).
17.4 Buyer and Seller agree to cooperate with reasonable
requests for information or documentation to verify
compliance with this clause.
17.5 Performance obligations under this Contract shall be
suspended upon contravention of Sanction Laws. A breach
of warranty or undertaking under this sanctions clause by
either Seller or Buyer shall entitle the non-breaching party
to terminate the Contract without liability. Such termination
shall be without prejudice to the rights and obligations of
the parties in respect of any breach of this Contract
occurring prior to such termination.
18
BRIBERY AND ANTI-CORRUPTION
18.1 The Counterparty agrees and undertakes to LDCM that in
connection with this Contract, they will comply with all
applicable Regulations relating to anti-bribery and antimoney laundering.
18.2 The Counterparty represents warrants and undertakes that
they shall not, directly or indirectly, pay, offer, give or
promise to pay or authorize the payment of, any monies or
other things of value to; (i) a government official or an
officer or employee of a government or any department,
agency or instrumentality of any government; (ii) an officer
or employee of a public international organization; (iii) any
person acting in an official capacity for or on behalf of any
government or department, agency, or instrumentality of
such government or of any public international
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Louis Dreyfus Commodities Metals General Terms and Conditions for Refined Metals 2015
organization; (iv) any political party or official thereof, or
any candidate for political office; (v) or any other person,
individual or entity at the suggestion, request or direction
or for the benefit of any of the above-described persons
and entities, or (vi) engage in other acts or transactions, in
each case if this is in violation of or inconsistent with any
applicable
anti-bribery
or
anti-money
laundering
Regulations of any government, or the applicable country
Regulations implementing any OECD Convention on
intended to combat bribery of foreign public officials in
international business transactions.
18.3 LDCM may terminate the Contract, without Liability, at any
time, upon written notice to the Counterparty, if in LDCM’s
reasonable judgement the Counterparty is in breach of any
of the above representations, warranties or undertakings,
with all Liability associated with such breach being for
Counterparty's account.
19
MATERIAL ADVERSE CHANGE
Should at any time LDCM determine and notify the Counterparty
in writing that in LDCM’s reasonable opinion the Counterparty
and / or any Affiliate are subject to a Material Adverse Change
then LDCM shall be entitled to immediately suspend
performance under the Contract and treat such Material Adverse
Change as an Event of Default for the purposes of clause 12.
20
CONFIDENTIALITY
The existence and the provisions of the Contract, and any
documents or information about LDCM, its Products, distributors
or other customers, or any other non-public information, written
or oral, with respect to the Contract (“Confidential Information”)
shall be kept confidential and shall not be disclosed, in whole or
in part, to any person other than subcontractors, officers,
directors, employees, or representatives of a Party (collectively,
“Representatives”) who have a reasonable need to know such
Confidential Information for the purpose of negotiating, executing
and implementing the Contract and such Confidential Information
shall not be used for any other purpose. Each Party agrees to
inform each of its Representatives of the confidential nature of
the Confidential Information and to direct such persons to treat
such Confidential Information in accordance with the terms of
this sub-paragraph. Nothing herein shall prevent a Party from
disclosing Confidential Information (i) if required by law or (ii)
upon the order of any court or administrative agency, (iii) upon
the request or demand of, or pursuant to any Regulation of any
regulatory agency or authority, (iv) to the extent reasonably
required in connection with the exercise of any remedy
hereunder, (v) to a Party’s legal counsel or independent auditors,
(vi) to any permitted assignee hereunder, provided that such
assignee agrees in writing to be bound by the provisions of this
article. These provisions shall apply for the duration of any
Contract between LDCM and Counterparty and shall survive for
three (3) years after the termination of the Contract. Counterparty
agrees that they shall indemnify and hold LDCM harmless for
any Liability which may arise, whatsoever, suffered by LDCM
from or as a result of Counterparty’s failure to discharge their
obligations under this confidentiality clause.
21
NOTICES
21.1 Any notice or other communication to be given under the
Contract; (i) shall be in the English language; (ii) may be
given in any manner described below; (iii) shall be sent to
the Party to whom it is to be given at the address, or in
accordance with the electronic messaging details set out in
the Contract, or such other address as the Party has
previously designated to the other in writing.
21.2 Any such notice or other communication shall, unless
otherwise specified in the Contract, be effective if: (i) in
writing and delivered in person or by courier, at the time
when it is delivered; (ii) sent by telex, at the time when the
recipient's answerback is received; (iii) sent by facsimile
transmission, at the time when the confirmation of
transmission is received; (iv) sent by certified or registered
mail (airmail, if overseas) or the equivalent (return receipt
requested), at the time when that mail is delivered or its
delivery is attempted (or the receipt is received); (v) sent
by an electronic messaging system, at the time that
electronic message is received; except that any notice or
communication which is received, or delivery of which is
attempted, after close of business on the date of receipt or
attempted delivery or on a day which is not a day on which
commercial banks are open for business in the place
where that notice or other communication is to be given
shall be treated as given at the opening of business on the
next following day which is such a day.
22
CHANGE OF CONTROL
Notwithstanding anything elsewhere in the Contract to the
contrary, no actual or prospective change in the organisation,
control or management of LDCM (including without limitation, a
change to its majority shareholding) shall affect or in any way
change or modify the terms and conditions of the Contract which,
regardless of such changes, shall continue in full force and
effect.
23
ASSIGNMENT
This Contract shall bind and inure to the benefit of each Party’s
permitted successors and assigns. Neither Party may assign
this Contract, in whole or in part, without the other Party’s prior
written consent, which consent shall not be unreasonably
withheld, conditioned, or delayed, provided, however, that no
such consent shall be required by LDCM for; (i) any assignment
in connection with a sale, merger, consolidation, or other
business combination transaction, or (ii) any assignment to an
Affiliate provided that such assignee party assumes all rights and
obligations hereunder.
24
SEVERABILITY
If any provision or portion of this Contract is held to be invalid or
unenforceable in arbitration or by any governmental or judicial
authority having jurisdiction over it, the validity and enforceability
of the remaining portions or provisions of this Contract shall not
be affected.
25
WAIVERS
No amendment, modification or waiver of any provision of this
Contract or of any right, power or remedy shall be effective
unless made expressly and in writing. No waiver of any breach of
any provision of this Contract shall: (i) be considered to be a
waiver of any subsequent or continuing breach of that provision;
or (ii) release, discharge or prejudice the right of the waiving
Party to require strict performance by the other Party of any other
provision of this Contract. The granting of any time, forbearance,
or indulgence (express or implied) including but not limited to
additional time to open a letter of credit or affect due payments,
shall not under any circumstances constitute any variation or
waiver of any right, power or remedy of any provision of this
Contract, regardless of the form of such forbearance or
indulgence.
26
THIRD PARTY RIGHTS
26.1 No term of the Contract is intended to, or does, confer a
benefit or remedy on any third party. A person, company
or other legal entity that is not a party to the Contract shall
not have nor acquire whether by virtue of the Contracts
(Rights of Third Parties) Act 1999 or otherwise any rights in
relation to the Contract. Further, the Parties hereto may
rescind or vary the Contract, whether in whole or in part,
without the consent of any third party.
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Louis Dreyfus Commodities Metals General Terms and Conditions for Refined Metals 2015
26.2 LDCM shall perform the Contract with the Counterparty. If
the Counterparty wishes to nominate a third-party to
receive any benefit, or discharge any obligation, under the
Contract then upon request from LDCM a description of
the Counterparty‘s economic relation with the third-party
shall be provided to LDCM, including originals of certificate
of incorporation of that third-party. LDCM reserves the
right, in its absolute discretion, to reject any nominated
third-party or to demand execution of, without limitation, an
indemnity and/or tripartite agreement (in LDCM’s chosen
wording) prior to accepting the nominated third-party. Any
Liability associated with nomination of a third-party under
this clause shall be for the Counterparty’s account.
27
REACH
31
LAW AND ARBITRATION
31.1 This Contract, and any issues or disputes arising out of or
in connection with it (whether such disputes are contractual
or non-contractual in nature, such as claims in tort, for
breach of statute or regulation or otherwise) shall be
governed by and construed in accordance with English
law.
31.2 Any and all disputes arising out of or in connection with the
Contract, including without limitation any question
regarding its existence, validity or termination, shall be
referred to arbitration in London in accordance with the
Arbitration Regulations of the London Metal Exchange
(“LME Regs”).
The Parties shall exercise reasonable endeavours to ensure that
each has complied with any obligations under EU REACH
legislation arising under the Contract. The Parties shall employ
best efforts to provide, upon request, any cooperation,
documentation, and/or information required for the requesting
Party’s compliance with EU REACH legislation arising under the
Contract. Counterparty agrees that they shall indemnify and hold
LDCM harmless for any Liability which may arise, whatsoever,
suffered by LDCM from or as a result of Counterparty’s failure to
discharge their obligations under this clause and/or EU REACH
legislation.
31.3 Where the amount claimed by the Claimant is less than
USD 500,000.00 excluding interest (or such other sum as
the parties may agree), the reference shall be to a tribunal
of one arbitrator appointed in accordance with the LME
Regs.
28
31.5 Nothing contained in the Contract, or in the LME Regs,
shall prevent the Parties from, at any time, seeking interim
relief via legal proceedings provided that such legal
proceedings shall be limited to (i) applications made in any
jurisdiction for, or ancillary to, the obtaining of security; or
(ii) applications made pursuant to the courts powers under
the English Arbitration Act 1996 in support of arbitration
proceedings, which shall be the sole method for
determining the substantive merits of any dispute or claim
in accordance with LME Regs.
TELEPHONE RECORDINGS
The Parties acknowledge and consent that LDCM may
electronically record telephone conversations between LDCM and
the Counterparty or any of the Counterparty’s agents,
representatives or servants. Parties consent that the electronic
record may be used during any form of dispute resolution.
29
CHANGE IN REGULATIONS
29.1 The Parties acknowledge that LDCM is entering into the
Contract in reliance on the Regulations in effect on the
date of the Contract which affect directly or indirectly the
Contract and/or the Products sold under the Contract,
including, but without limitation to the generality of the
foregoing, those relating to the production, acquisition,
gathering, manufacturing, transportation, storage, trading
or delivery of the Products, insofar as such Regulations
affect LDCM and/or LDCM’ss supplier(s).
29.2 If at any time, and from time to time, during the currency of
the Contract any Regulations are changed or new
Regulations have become or are due to become effective
and the effect of such changed or new Regulation(s) is (i)
not covered by any other provision of the Contract; and (ii)
has or will have a material and/or substantial adverse
effect on LDCM, then LDCM shall have the option to
renegotiate the price(s) or other relevant terms of the
Contract. Such option may be exercised by the LDCM at
any time after such changed or new Regulations are
notified by written notice to the Buyer. Such notice shall
contain the new price(s) and/or terms and conditions
desired by LDCM. If the Parties do not agree upon the new
price(s) or terms and conditions within fifteen (15) running
days after the date of LDCM’ss notice, either Party shall
have the right to terminate the Contract with immediate
effect.
30
CHILD AND FORCED LABOUR
The Counterparty represents that they and their relevant
suppliers; (i) make no use of child labour (as defined by the
International Labour Organisation (ILO) Minimum Age
Convention, 1973 (No. 138 - http://www.ilo.org/ilolex/cgilex/convde.pl?C138) as amended; and (ii) make no use of forced
labour (as defined by the International Labour Organisation (ILO)
Abolition of Forced Labour Convention, 1957 (No. 105 http://www.ilo.org/ilolex/cgi-lex/convde.pl?C105)
31.4 Where the amount claimed by the Claimants is equal to or
greater than USD 500,000.00 excluding interest (or such
other sum as the parties may agree), the reference shall
be to a tribunal of three arbitrators appointed in
accordance with the LME Regs.
31.6 The United Nations Convention on Contracts for the
International Sale of Goods (1980) shall not apply to the
Contract.
32
HEALTH AND SAFETY
32.1 The Product with its contracted specifications does not
constitute a hazard to health or safety, provided that the
Product is handled, used and stored in accordance with
normally accepted safe working practices applicable to the
Product. Parties should, for their own safeguard, consult
the relevant Regulations, codes of practice, safety
brochures, and utilize production and warehouse
inspection regimes to ensure adequate hygiene, safety and
environmental standards; and the enforcement thereof,
with respect to handling, processing and storing of the
Product.
32.2 The Parties accept any inherent risks associated with the
Product and accordingly neither Party shall have a claim of
any kind against the other Party directly or indirectly arising
from death, illness or injury of any person or damage to
any property as a result of direct or indirect exposure to the
Product unless the damage is the result of a breach of
contract by, or gross negligence, or willful intent on the part
of one of the Parties.
33
WHOLE CONTRACT
The Contract constitutes the whole agreement between the
Parties as to the subject-matter hereof and no agreements,
representations or warranties between the Parties other than
those set out in the Contract shall bind the Parties.