Cobalt Open Sales System BHP Billiton

Terms & Conditions

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COSS Cobalt Price : $36.25    Sep 2008

General Conditions Of Sale
1. Definitions
1.1. For the purposes of these conditions, unless the context indicates otherwise, the following words have the following meanings:
 
1.1.1. "agreement" means the agreement to which these conditions are annexed, and any appendices thereto;
1.1.2. "material" means the product/s forming the subject matter of the agreement;
1.1.3. "parties" means Seller and Buyer.
1.1.4. “Seller” means the seller specified in the agreement.
1.2. Save where specifically provided to the contrary, all trade terms used in the agreement will be governed by and interpreted in accordance with the most recently published International Rules for the Interpretation of Trading Terms of the International Chamber of Commerce (“Incoterms”).
2. Delivery, Title And Risk
2.1. The material shall be delivered on terms as stipulated in the agreement.
2.2. Title of the material and/or documents supplied by Seller to Buyer or to Buyer’s agent shall remain the property of Seller until the full contractually agreed payment has been received by Seller.
2.3. Transfer of risk from Seller to Buyer shall be on delivery in accordance with the relevant Incoterm.
2.4. Seller reserves the right to withhold any delivery if a petition for bankruptcy or postponement of payments is filed in respect of Buyer.
3. Loss Or Damage
3.1. In the event of a total loss of the material after delivery, Buyer will pay to Seller the amount invoiced equal to the value of the entire shipment based where applicable on Seller's official certificate of weight, sampling, analysis and size grading.
3.2. In the event of only partial loss or damage to the material, the amount to be paid by Buyer in respect of the material lost or damaged will be the difference between the bill of lading weight and the discharge weight of the remaining material and will be based on the analysis and moisture content determined for the remaining material at the port of discharge. If, however, the weight of the remaining material is less than 10% (ten percent) of the total shipment, the provisions of total loss as above will apply.
3.3. In the event of loss or damage, whether partial or total, to a shipment of the material following delivery, Seller will not be obliged to replace the lost or damaged quantity.
3.4. Buyer will be liable to pay for the material that has been lost or damaged at the time it would ordinarily be obliged to effect payment in terms of the agreement, and Seller will not be obliged to await the settlement of any insurance claim.
4. Payment
4.1 Unless otherwise agreed, payment shall be effected in cash upon delivery of the material, in the currency specified, free of any set-off or deduction; payment shall be considered to have been made when the amount has actually been received by Seller. If, notwithstanding this obligation, any amount however small remains unpaid, Buyer shall be required to pay interest as from the due date until the date of actual receipt of payment by Seller. Unless otherwise agreed, the interest to be paid shall be calculated at a rate of LIBOR plus 3% (three per cent) for the period of time that the amounts (including interest) are due but unpaid. For the purpose of this clause, LIBOR shall mean the one month London Inter-bank Offered Rate for the relevant currency as quoted by Reuters at 11h00 (GMT) on the first day of such period or if no such rate is quoted, on the next succeeding day on which such rate is quoted.
4.2 Seller may require prompt payment or change the payment terms in the event of circumstances which, in the reasonable judgment of Seller, have a material adverse effect on the creditworthiness of Buyer and/or Buyer’s ability to perform its obligations.
4.3 In the event of overdue payments, Seller reserves the right to postpone further deliveries until outstanding debts have been settled.
4.4 All bank charges relating to transfer of money shall be for Buyer’s account. All costs relating to non-compliance with this agreement by Buyer, including the cost of collection of payments, shall be for Buyer’s account.
5. Force Majeure
5.1. If either party should, despite all reasonable efforts, be prevented or hindered directly or indirectly by circumstances beyond its control (hereinafter referred to as “force majeure”) from performing all or any of its obligations under the agreement other than the obligation to make monetary payments, the party so affected (the "affected party") will be relieved of performance of its obligations hereunder during the period that such circumstances and the consequences thereof will continue, but only to the extent so prevented or hindered, and will not be liable for any delay or failure in the performance of any of its obligations hereunder or loss or damage whether general, special, or consequential which the other party (the "unaffected party") may suffer due to or resulting from such delay or failure, provided always that notice will be given by the affected party to the unaffected party at the earliest possible opportunity by fax, telephone or cablegram of the occurrence of the event constituting force majeure, together with details thereof and an estimate of the period of time for which it will endure.
5.2. The term ”force majeure” will include strike, labour dispute, lock-out, fire, explosion, flood, riot, war, accident, act of God, embargo, legislation, regulation or directive having the force of law, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbance, compliance with any order or instruction of any port, transportation, local or other authority, non-availability or shortage of electricity, coal, fuel or raw material, failure of Seller’s supplier to supply, breakdown or malfunction of plant or, without any limitation, any other cause beyond the control of the affected party, whether similar or dissimilar to the causes enumerated above.
5.3. The affected party will use all reasonable endeavours to terminate the circumstances giving rise to the force majeure, and upon termination of the event giving rise thereto, will forthwith give notice thereof by fax, telephone or cablegram to the unaffected party.
5.4. Notwithstanding any other obligations of this clause 5, Buyer will be obliged to accept delivery of and pay for any material which has been booked aboard a vessel prior to Seller being advised by Buyer of any force majeure.
5.5. If at any time delivery of the material under this agreement is suspended in accordance with this clause for a period of 180 consecutive days or more, the unaffected party may forthwith by notice in writing to the affected party terminate this agreement. Termination of this agreement pursuant to this clause shall not prejudice any other rights which the Seller and the Buyer may then have against each other.
5.6. Nothing in this agreement will require either party to settle an industrial dispute under particular conditions or deal with an industrial dispute in a particular way.
6. Default
6.1. In the event of either party (the “defaulting party") committing a breach of any of the provisions of this agreement, the party not in breach (the “aggrieved party") will be entitled to give the defaulting party notice in writing to remedy the breach.
6.2. If the defaulting party fails to comply with that notice within 21 (twenty one) days of the date of posting thereof, the aggrieved party will be entitled to cancel this agreement or to claim specific performance, in either event without prejudice to the aggrieved party's rights to claim damages.
6.3. If Buyer fails to pay the amount due by it by due date, or applies for suspension of payments or is put into liquidation, trusteeship or receivership, Seller will be entitled to recover material which has been delivered but has not been paid for, and to withhold delivery of further material.
7. General
7.1. The material supplied by Seller in the condition in which it is sold is considered not to constitute a hazard to health or safety, provided that it is handled, used and stored in accordance with normally accepted safe working practices applicable to the material. Buyer should, for its own safeguard, consult the producer’s Material Safety Data Sheet, relevant codes of practice and factory inspectorates with regard to adequate hygiene, safety and environmental standards and enforcement thereof, with respect to handling,processing and storing of the material, its products and wastes of any sort.
7.2. Buyer accepts the inherent risks associated with the material as set out in clause 7.1 and will accordingly have no claim of any kind against Seller 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 material unless the damage is the result of a breach of contract by or gross negligence or wilful intent on the part of Seller.
7.3. No warranties are given other than that the material will conform to the specifications stated in the agreement within any tolerance stated and any implied or statutory warranties are excluded. The limitations on Seller’s liability as set out in this agreement shall be to the maximum extent permitted by applicable law.
8. Claims
8.1 Any claim by Buyer relating to this agreement shall be notified in writing to Seller within 15 (fifteen) days after receipt of the material by Buyer.
8.2 Full particulars of such claim shall be given in writing to Seller within 15 (fifteen) days after the above-mentioned notification. In addition, Buyer shall submit a sworn surveyor’s report should the quality or amount of the material delivered be in dispute.
8.3 If Buyer fails to comply with the stipulations of this clause 8, Buyer will be deemed to have waived that claim and such claim shall have no legal validity whatsoever.
8.4 Seller shall be entitled to refuse to accept any material that is returned without its prior written consent, even if such material is returned undamaged and is covered by the legally required documents.
8.5 Material returned under this agreement by Buyer and accepted by Seller as defective shall, at Seller’s option, either be replaced without charge or the price paid for this material credited to Buyer.
8.6 Seller’s liability in respect of any fault or negligence proven shall not exceed the invoice amount of the material delivered, increased by any transportation charges and import duties paid by Buyer in respect of the delivery of the said material.
9. Tax and Import Duties
  Unless otherwise agreed, all taxes and import duties on the material delivered under this agreement and not dealt with otherwise in the conditions of this agreement shall be for Buyer’s own account.
10. Weights And Assays
  Weights and assays established by or on behalf of Seller shall be binding.
11. Safety
11.1 Seller shall be entitled to refuse to effect delivery of the material if the facilities for receipt made available by Buyer fail to comply with Seller’s requirements regarding cleanliness and safety. All costs incurred in the course of any cleaning operations shall be for Buyer’s account. Seller is not liable for damage resulting from the receipt of material in unsuitable storage accommodation. Buyer indemnifies Seller against claims which third parties might have against Seller in this respect.
11.2 Any advice given by Seller concerning storage, transport, use or application of the material delivered shall be entirely without prejudice and Seller shall not be liable for damages resulting either directly or indirectly from observance of such advice.
12. Trade Marks And Patents
12.1 The use in connection with goods manufactured with the delivered material of any trademark that is the property of Seller or any of its suppliers shall not be permitted without the written consent of the proprietor of such trademark.
12.2 In all cases where Buyer places orders for the production of goods in accordance with Buyer’s specifications, Buyer shall indemnify Seller against infringement of rights of third parties.
13. Variation
  No addition to, variation or deletion of any clause of the agreement or these conditions, including this clause 13, consensual cancellation or assignment of this agreement and no waiver of any right arising from this agreement or its breach or termination will be of any force or effect unless reduced to writing and signed by duly authorised representatives of both parties.
14. Whole Agreement
14.1. These General Conditions of Sale (“conditions”) and the agreement to which these conditions apply constitute 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 herein are binding on the parties.
14.2. In the event of any conflict between these conditions and the provisions of the agreement, the latter will prevail.
14.3. If the provisions of these conditions and / or the agreement should be inconsistent with the provisions of any order, delivery instruction or any other document relevant to the agreement issued by Buyer, the provisions of these conditions and / or the agreement will prevail, unless it has been explicitly otherwise agreed between the parties in writing.
14.4. If any term or provision of this agreement shall be found to be void, illegal or unenforceable, the remaining terms and provisions hereof shall be and remain binding on the parties hereto.
15. Assignment
  Except as expressly provided below, no party may assign the agreement in full or in part without the written consent of the other party, which consent will not be unreasonably withheld and no assignment shall be effective until the assignee agrees in writing with the other party to be bound by and to perform the obligations of the agreement assigned to it.
The Seller may assign the agreement in full or in part to any related body corporate and assign the benefit of any payment due to the Seller under the agreement to another party pursuant to the Seller’s trade or other finance arrangement. “Related body corporate” means (a) BHP Billiton Ltd; (b) BHP Billiton Plc; (c) any body corporate Controlled directly or indirectly by BHP Billiton Plc or BHP Billiton Limited; (d) any body corporate Controlled by BHP Billiton Plc and BHP Billiton Limited taking into account the aggregate percentage interests of their respective direct or indirect shareholdings in that body corporate; and (e) any body corporate Controlling or Controlled by that body corporate referred to in (d). “Control” for this paragraph shall mean the ownership directly or indirectly of more than fifty (50) percent of the shares entitled to vote at general meetings of a body corporate, and “Controlled” has a corresponding meaning.
16. Notices
  The parties choose their respective addresses set out in the agreement for all purposes arising out of or in connection with this agreement, at which addresses all processes and notices arising out of or in connection with this agreement, its breach or termination may validly be served upon or delivered to the parties.
17. Dispute Resolution And Governing Law
  All disputes arising out of or in connection with this agreement, including disputes on its conclusion, binding effect, amendment and termination, will be resolved in the manner and on the basis set out in the agreement. The governing law shall be as specified in the agreement.
18. No Consequential Loss
  Notwithstanding anything to the contrary elsewhere in this agreement, no party is in any circumstances liable in respect of any breach of this agreement to any other party for any loss of profit, loss of revenue, loss of use, loss of contract, loss of goodwillor any indirect or consequential loss.
19. Use Of Information
  The buyer consents to the use and publication by the Seller of statistical information relating to a sale, subject to the Seller taking reasonable steps to avoid the direct or indirect identification of the identity of the Buyer. All material provided by the Seller on its various web sites is for informational purposes only and shall not constitute an offer to contract with the Buyer or any other person.