国际煤炭交易合同样本.doc

CONTRACT DATE: January 12, 2010Contract No.: 6473189SALE AND PURCHASE CONTRACT AGREEMENTINDONESIAN STEAM COAL 6300 REJECT 6100 KCAL CFRThis Sale and Purchase Agreement (hereinafter referred to as the “AGREEMENT”) is made and entered into as of January 12, 2010, by and between: 1. International Trading Corp. a company incorporated under the laws of Canada and having its registered, Parkway Place (IBM Tower), 251 Consumer Road 12th floor, Toronto, Ontario, Canada, M2J 4R3, (Hereinafter referred to as SELLER).AND2. ._ and having its registered office at. (hereinafter called ”BUYER”).(hereinafter referred to individually as the “Seller or Buyer” and collectively as the “PARTIES”.)WITNESSETH:WHEREAS, the SELLER is the legal entity and beneficial owner of Coal as specified in this Agreement (the “Coal”);WHEREAS, the SELLER agrees to sell Coal to the BUYER and BUYER agrees to purchase Coal from the SELLER, with the consideration and the terms and conditions set out in this Agreement;NOW THEREFORE, the Parties have agreed to enter into this Agreement under the terms and conditions as set out herein:ARTICLE 1 - DEFINITIONSIn this Agreement unless the context otherwise permits the following terms shall have the meanings stated below: Coalmeans coal produced at South Kalimantan, Indonesia. “Ton(s)”, “Tonne(s)”, and “MT”means metric tonne of 1,000 Kgs as defined in “International System of Units”. A fraction of a tonne(s) in any calculation shall be rounded up to the three decimals. “Dollars”, “US$”, “$”, “Cents”where used shall refer to the currency of the United States of America. A fraction of a cent in any calculation shall be rounded up to the nearest cent if such fraction is one half of a cent or more, and otherwise shall be rounded down. FOBTmeans Free on Board in accordance with Incoterms 2000, Spout and Trimmed in BUYERs vessel at the Anchorage Point. Anchorage Pointmeans the anchorage at any main point of Kalimantan, Indonesia. Destination port, Shandong Province (China.) Bill of Ladingmeans receipt given by the vessel for the coal shipment and is a document of title. ETAmeans expected time & date of arrival. ASTMmeans the American Society for Testing and Materials ISOmeans the International Organization for Standardization. KCalmeans Kilocalorie (s) as defined in the “International System of Units”. mmmeans Millimeter as defined in “International System of Units”. Laytimemeans time allowed to load the cargo on to the vessel. Major Indonesian Holidaysmeans 2 days of Idul Fitri, 1 day of Idul Adha, 1 day of Independence Day, 1 Day of Christmas Day. Working Daymeans a day upon which business is regularly transacted and unless expressly stated, the term “day” shall be deemed to mean “working calendar day”. Weather Working Daymeans day of 24 consecutive hours on which work in loading coal on board a vessel may be carried out without loss of time due to the weather. Pratiquemeans permission to do business at a port by a ship that has complied with all applicable local health regulations. Statement of Factsmeans a statement prepared by the ships agent at the port of loading which shows the date and time of arrival of the vessel and the commencement and completion of loading. It details the quantity of cargo loaded each day, the hours worked and the hours stopped with the reasons of stoppages. Time Sheetmeans a document which records all daily particulars relating to the loading or discharging of cargo as well as the duration of and reason for any stoppage of work and is used as a basis for the calculation of demurrage/dispatch. ARTICLE 2 QUANTITY AND SHIPMENTThe agreed for the first shipment as trial volume 50,000 MT per months and 100.000 MT for the next three month, and then from number 5 shipment start 120.000 MT +/- 10% per month until 12 month, shipment will be within 30 days after seller bank receives L/C from buyer. ARTICLE 3 - SPECIFICATIONThe quality of coal to be supplied hereunder shall be free of foreign matters and in accordance with the following specification as measured in accordance with American Society for Testing and Materials (ASTM) method: GuaranteedRejectionTotal MoistureARB:15% Max18 %Inherent MoistureADB:8-12% MaxAsh ContentADB:12% Max14 %Volatile MatterADB:38% - 44% approxFixed CarbonADB:by differenceTotal SulphurADB:0.70% Max 1%Gross Calorific ValueADB:6300 Kcal/kg 6100 Kcal/kgHGI:42-45 ApproxSize 0 50 mm:85 %& 15%ARTICLE 4 - PRICEThe Base Price for the shipment is US82 (Eighty Nine Dollars Only) (all inclusive) per Metric Ton CFR XXXXX port, Shangdong China at one safe Anchorage Point, Any main port of Kalimantan, Indonesia, including all export duties, basis 6300 kcal/kg gross air dried, Total Moisture as received 15%, Ash Content 12% air dried and Total Sulphur 1.0% air dried. The Base Price will be reviewed for every shipment, every three months review price will bass on Coal index price Indonesia (), when sign contract date both party will confirm price of coal Index Price Indonesia with state in this contract ($FOB).ARTICLE 5 - WEIGHT AND PRICE ADJUSTMENT5.1. WEIGHT ADJUSTMENTa) If the Total Moisture (“TM”) of the coal as shown in the Certificate of Analysis is higher than the Guaranteed TM in 15%, the certified weight shall be adjusted in accordance with the following formula, fractions prorate:Adjusted certified barge weight = Certified barge weight x 1 (Actual TM Guaranteed TM)/100(“Certified barge weight”, we always use “certificate weight B/L”, reconsider after discussion)b) If the Certified Total Moisture (as received basis) of the shipment is below or equal to 15%, then the Adjusted Weight is equal to Certified Weight. c) If the Total Moisture (AR) is above the rejection limit as specified in Clause 3 Typical Specification, the Buyer shall have the right to reject the cargo or to apply an additional cumulative penalty of 0.25 USD/mt for each 1% above the rejection limit fractions prorate.5.2. PRICE ADJUSTMENTGross Calorific Value (ADB)If the certified gross calorific value on air dried basis (“GCV (ADB)”) of the coal as shown in the Certificate of Analysis is below or above the Guaranteed CV in kcal/kg, the Base Price under shall be adjusted as follows, fractions pro rata: Adjusted Price = Base Price x (Actual GCV (ADB)/Guaranteed CV kcal/kg (ADB)If the GCV (ADB) is bellow the rejection limit as specified in Clause 3 Typical Specification, the Buyer shall have the right to reject the cargo or to apply an additional penalty of 0.05 USD/mt for each 100 Kcal/Kg bellow the rejection limit fractions prorate. Ash (ADB)If the ash content of the coal on air dried basis as shown in the Certificate of Analysis is higher than Guaranteed ash content in 12%, the Adjusted Price shall be reduced by USD 0.03 per metric ton for each 1% above the Guaranteed ash content, fractions pro rata.If the ash content is above the rejection limit as specified in Clause 3, the Buyer shall have the right to reject the cargo or to apply an additional cumulative penalty of 0.03 USD/mt for each 1% above the rejection limit fractions prorate.ARTICLE 6 - CARGO WEIGHT DETERMINATION6.1. The cargo weight of each shipment shall be calculated using draft surveys and shall be determined at the Anchorage Point. The draft surveys shall be conducted by PT. Sucofindo or any other mutually agreed inspection agency. The PT. Sucofindo or any other mutually agreed inspection agency shall provide the corresponding Certificate of Weight for each shipment at Anchorage Point. The weight so determined shall be final and binding upon SELLER and BUYER for the purpose of this agreement, and shall form the basis of settlement unless adjustment is required in accordance with Article 5 hereof.6.2. A fraction of a tonne shall be rounded up if such fraction is not less than one half of one tonne, and shall be rounded down otherwise.6.3. The costs of draft surveys at Anchorage Point shall be for the account of SELLER. ARTICLE 7 - SAMPLING, COAL QUALITY ANALYSIS AND UMPIRE ANALYSIS7.1. The final sampling and analysis of the coal shipments shall be conducted at the Anchorage Point by PT. Sucofindo or any other mutually agreed inspection agency.7.2. All sampling will be carried out in accordance with ASTM standard or ISO standard using mechanical sampler, wherever possible. Sample taken by PT. Sucofindo or any other mutually agreed inspection agency shall be divided into 2 parts to provide:- 1 (one) sample being the shipment analysis sample (the “Shipment Sample”);- 1 (one) sample being the Umpire sample (the “Umpire Sample”) which shall be retained by PT. Sucofindo or any other mutually agreed inspection agency until 60 (Sixty) days after completion of loading.These samples shall be clearly labeled (including without limitation sample and container weight) and kept in air tight sealed containers.7.3. The Shipment Sample shall be analyzed by PT. Sucofindo or any other mutually agreed internationally recognized laboratory. This laboratory shall perform an analysis of the characteristic specified in Article 3, and shall issue the Certificate of Sampling and Analysis certifying the results of such analysis.7.4. In the event that either party wishes to challenge the result of such analysis, it shall do so within sixty (60) days from date of Bill of lading (date of completion of loading of the vessel). In such event the Umpire Sample shall be sent to mutually acceptable internationally recognized independent commercial laboratory (the “Umpire Laboratory”). The Umpire Laboratory shall perform analysis of the specifications for the parameters requested by the party called for umpire analysis, and shall issue a certificate (the “Umpire certificate”) certifying the results of such analysis.7.5. In the event that the results of the analysis of the Umpire Sample are deviating beyond the reproducibility limits (set out below) from the analysis reports produced by PT. Sucofindo (or any other mutually agreed internationally recognized laboratory) or should one party prove any inaccuracy in taking the samples or the analyzing, both parties will discuss in good faith to clarify the situation and agree on a new analysis result for invoicing purposes. If agreement cannot be reached on a new analysis, the umpire analysis shall be final and binding on both parties.7.6. The costs for sampling and analysis shall be for the account of SELLER. Cost of additional analysis of the umpire sample shall be borne by the requesting party.ARTICLE 8 - PAYMENT8.1 Payment for the Coal shipped shall be made by an Irrevocable, Confirmed, Transferable, at sight documentary LETTER OF CREDIT (LC) established through First Class Bank for each shipment that acceptable to the SELLER within 7 (seven) banking days after signing this contract (draft LC have to be pre-approved by the Seller), will be made in US Dollars for 100% value covering the relevant shipment quantity +/- 10% and in format acceptable to the SELLER. LC shall be established forty five (45) days prior to the arrival of vessel at load port in favour of SELLER subject to the SELLER confirming their bank details to BUYER for advising the LC. Initial LC shall be for value of 150,000mt covering first and second shipment. Upon completion of loading of the first vessel, BUYER shall issue LC for third vessel shipment. The procedure shall repeat until end of contract.(a) SELLER shall arrange and submit to seller bank for negotiation payment 100% after loading port the document as following after completion of loading at Anchorage Point :(1) 1 Original + 2 Copies of Commercial Invoice(2) 3 Original + 3 Copies of Bill of Lading marked freight payable as per charter party/ Freight Prepaid.(3) 1 Original + 2 Copies of Certificate of Origin issued by Indonesian Chamber of Commerce or any other competent Government authority and stating the name of coal mine.(4) 1 Original + 4 Copies of Certificate of Sampling and Analysis issued by surveyor at Anchorage Point.(5) 1 Original + 4 Copies of Certificate of Draught Survey issued by surveyor at Anchorage Point.(b) SELLER shall submit to BUYER the copy of non negotiable documents stipulated in (1), (2), (3), (4), (5). Above within 7 working days from sailing of the vessel from Anchorage Point.(c) BUYER shall make the remittance of the total amount shown in SELLERs invoice through LC upon receipt of documents referred under clause 12.2 at the counters of issuing bank within 2 working days.(d) The negotiating bank to send confirmation to opening bank by swift that documents have been clean negotiated and the documents to be sent by courier in one lot on the same date of negotiation.SELLERs Bank detail: (BENEFICIARY)Bank : Account No.: 13 Swift Code: BEII Beneficiary : PT. BUYERs Bank detail: Bank : Account No. : Swift Code : Application : (e) Documents must be presented for negotiation within 21 days from date of shipment but within the validity of the credit.8.2 All bank charges incurred by beneficiary are for beneficiarys account and all bank charges incurred by Applicant is for applicants account.ARTICLE 9 - FORCE MAJEURE9.1 DEFINITIONSThe term “Force Majeure” as used herein shall mean any cause(s) beyond the reasonable control of the party involving this Article, which causes may include but are not limited to:(a) Acts of God; lightning; storm; fire; flood; slide; earthquake;(b) Acts of the public enemy; war; insurrection; sabotage; blockade; riot or disorder;(c) Orders or acts of military or civil authority, including, without limitation, any regulation, direction, order made by any governmental authority or person acting therefore, which is complied with in good faith;(d) Strike; lockout; and other industrial or labors disturbance;(e) Explosion; breakdown or malfunction or damage from any cause whatsoever; or accident by force or otherwise to mine railroad, storage facilities, processing plants, terminal of port facilities or coal receiving/processing plant and facilities (provided, however, that such breakdown, malfunction or damage was not caused by, and did not arise as a result of, the intentional act or gross negligence of the party directly affected by thereby, including such partys officers, employees, representatives and any other persons under its control); or unavailability of equipment or energy from others.Provided, however, that the aforementioned cause shall constitute Force Majeure only if, and to the extent that, performance as contemplated in this Agreements is prevented or delayed.9.2 NOTIFICATIONIn the event that either SELLER or BUYER is affected by an event of Force Majeure, the affected party shall forthwith give written notice to the other party stating the circumstances of the Force Majeure event and specifying the nature of the event together with an estimate in good faith of the degree to which and the period for which its performance will be affected thereby. The affected party shall, upon request by the other party, provide evidence as to the occurrence of the event and the period of duration thereof.9.3 SUSPENSION OF OBLIGATIONIf either BUYER or SELLER fails, or it delayed wholly or in part, in carrying out any of its obligations under this Agreement due to Force Majeure, except as otherwise expressly provided herein, the obligations of the entity giving such notice shall be suspended to the extent made necessary during the continuance of such Force Majeure or its effects; and the entity shall incur no liability by reason of its failure to perform the obligations so suspended, provided that the disabling effects of such Force Majeure shall be eliminated by the affected entity as soon as to the extent reasonably possible, further provided that settlement of labor disturbances shall be within the sole discretion of the affected party.Any deficiencies in the supply or purchase of Coal hereunder, excused by Force Majeure are to be made up only following mutual agreement.ARTICLE 10 - ARBITRATIONIn case of any dispute which may arise between BUYER and SELLER in connection with this Agreement or the interpretation, performance or non-performance hereof, and which cannot be settled by mutual accord between BUYER and SELLER, such dispute shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules. Arbitration proceedings, such arbitration shall be conducted in Singapore. The language to be used in the arbitral proceedings shall be in English. The decision of the majority of the arbitrators shall be final and binding on the parties hereto, including the decision as to allocate of the costs of such arbitration, and may be entered in any court having jurisdictionARTICLE 11 - LIABILITIESThe liability of a party in respect of any claim brought by the other based on a failure of the first party to fulfill its obligations hereunder shall be limited in any event to liability for direct loss suffered by the party aggrieved and shal