ADDITIONAL TERMS
CHEMICAL COMPOSITION: The specific chemical composition of each shipment shall be confirmed through an independent assay report or certificate of analysis, which shall be provided by the Seller to the Buyer prior to shipment.
SHIPMENT INITIATION: Each shipment shall be initiated pursuant to a corresponding Purchase Order issued by Buyer and shall be subject to payment via a Documentary Letter of Credit (“DLC”) issued by Buyer’s designated bank, subject to Seller’s reasonable approval of Buyer’s bank. The Buyer shall not be required to provide an DLC for the first tranche of the Product until Seller provides to Buyer an Assay Report, issued by an internationally recognized and accredited inspection or testing agency, evidencing the quality and specifications of the first shipment of the Product, provided however, an Assay Report shall be provided along with each subsequent shipment of each tranche of the Product to confirm the Product meets the Product Specifications.
(IF APPLICABLE FOR NON-SPOT CONTRACTS) VOLUME ADJUSTMENTS & MODIFICATIONS: Any adjustments or modifications to the volume or delivery schedule shall be subject to mutual agreement between the Parties and confirmed in writing. For avoidance of doubt, the delivery schedule set forth in this Section 2 shall consist of at least twelve (12) shipments of the specified volumes, irrespective of whether such shipments occur within consecutive calendar months, provided however, Buyer shall pay for the quantity actually delivered in each shipment in the manner set forth in this Agreement. Should deliveries occur on an accelerated basis, resulting in the total contract volume being delivered prior to the conclusion of the twelve (12) month term, the Parties acknowledge that the Seller shall have fulfilled its delivery obligations under this Agreement. Seller shall not be in default of this Agreement if multiple deliveries are made within a thirty (30) day rolling period if the total quantity of each Tranche is delivered within such thirty (30) day period.
PRICE CALCULATION: The price of each tranche of the Product supplied under this Agreement shall be determined based on the closing rate stated on the London Metal Exchange (“LME”) for Grade A Copper determined on the preceding trading day that the commercial invoice is issued by the Seller to the Buyer minus the Discount stated on the Contract, provided that, if for any reason the LME is no longer in operation or if the per ton price of copper is not calculated on behalf of or confirmed, acknowledged by, or quoted by the LME, the price shall be determined in a manner endorsed by the LME, failing which the price will be determined by reference to the per ton price of copper on another commodity exchange satisfactory to Buyer, acting reasonably (“Purchase Price”).
CURRENCY: All prices and payments under this Agreement shall be denominated in United States Dollars (USD).
TAXES & DUTIES: Unless otherwise stated, the Purchase Price excludes any applicable taxes, VAT, customs duties, or other governmental levies. Such charges, if applicable, including any fees and charges incurred after delivery shall be the responsibility of the Buyer, unless exempted by applicable law or mutually agreed upon in writing. Any taxes, tariffs and duties whether existing or new on the Product or on commercial documents relating thereto or on the cargo itself, imposed in the country of discharge and/or importing country shall be borne by the Buyer.
METHOD OF PAYMENT: Payment for each subsequent delivery after the first Tranche shall be against a DLC issued by Buyer’s bank (whereby the bank is subject to Seller’s reasonable approval) at least seven (7) business days before the expected shipment date which such date shall be informed to Buyer by Seller, provided however, payment for delivery for the first Tranche shall be against a DLC issued by Buyer’s bank at least forty-five (45) days prior to the expected shipment date for the first Tranche. The same DLC may be used for any one or more subsequent deliveries if such DLC is settled through bank wire transfer for any prior shipment(s) that such DLC was initially issued and used for payment. Seller shall be paid upon compliance with the terms of each DLC, such terms subject to Seller’s approval, for each Tranche.
BANKING FEES & CHARGES: Any costs, expenses, and fees, including, but not limited to, banking fees and charges, related to the issuance of any one or more DLC(s) as required under this Agreement shall be borne solely by the Buyer.
DEFAULT IN PAYMENT: Failure by the Buyer to issue DLC in accordance with the terms set forth herein shall constitute a material breach of this Agreement and entitle the Seller to suspend deliveries or terminate the Agreement for material breach in accordance with the terms herein.
FINAL PAYMENT & TRANSFER OF DOCUMENTS: Following successful inspection and acceptance of the Products at the destination port pursuant to Section 4 of this Agreement, the Buyer shall remit payment of one hundred percent (100%) of the shipment value via telegraphic transfer (TT/MT-103) to the Seller’s designated bank account. Upon confirmation of payment receipt by the Seller’s bank, the Seller shall promptly deliver to the Buyer the complete set of original commercial documents, including but not limited to: (i) Bill of Lading; (ii) Certificate of Origin; (iii) Commercial Invoice; (iv) Packing List; and (v) any additional documents reasonably required and requested by Buyer for the Buyer to have proper title to the Products delivered. Delivery of the documents in the preceding sentence shall constitute a complete transfer of title to the Products delivered, and Buyer shall assume full legal ownership, risk, and responsibility thereafter.
(a) Acceptance Procedure: Upon arrival at the Destination, each shipment shall be subject to inspection by a mutually agreed independent inspection agency (“IIA”) arranged by the Buyer, and at Buyer’s sole cost and expense, to verify conformity with the specifications set forth in this Agreement. If, following the inspection at the Destination, the Product is determined to conform in all material respects to the agreed specifications, the shipment shall be deemed accepted. The Seller or its representative is allowed to be present during the inspection. If the report provided by the IIA reflects the specifications to conform to the terms of Section 1 above then the Parties agree that the report shall be deemed as conclusive proof that the Product conforms to the specifications as required such that Buyer shall be prohibited from rejecting the Product.
(b) Right to Reject Non-Conforming Product: If the IIA report determines, based on inspection at the Destination, that any shipment or portion thereof does not conform to the quality, chemical composition, purity, or other specifications required under this Agreement, the Buyer shall have the right to reject such non-conforming Product in whole or in part. The Buyer shall notify the Seller in writing within three (3) business days of completion of inspection, providing the basis for rejection and supporting documentation.
(c) Remedies for Uncured Non-Conformance: If the Seller fails to cure the non-conformity within thirty (30) days, such period controlling over the the period set forth in Paragraph 8.4(a) herein, the Buyer may, at its discretion:
(a) return the non-conforming Product at the Seller’s expense;
(b) withhold payment for the non-conforming quantity.
BANKING INFORMATION
1.1. The Parties shall provide to the other their respective bank account information for payment and issuance of the DLC(s) which shall be stated on each Invoice and Purchase Order to be issued hereunder. Each Party’s bank account information may change from time to time, however, the Parties shall not be in default hereunder if the bank account information provided on such documentation (i.e., Invoice, Purchase Order) is abided.
1.2. RESPONSIBILITY FOR BANKING DETAILS: Each Party is responsible for ensuring the accuracy and completeness of the banking information provided. Any delays, errors, or costs arising from incorrect or incomplete banking details shall be borne by the Party providing such information. Both Parties agree to treat the other Party’s banking information as confidential and to use it solely for purposes related to this Agreement.
MISCELLANEOUS
2.1. AMENDMENT, MODIFICATION & WAIVER: No provision of this Agreement may be amended, modified, or waived except by a written instrument signed and delivered by both Parties. No failure or delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable law.
2.2. NO WAIVER: Except as herein otherwise specifically provided, the failure of either party to insist on strict performance of any provisions of the Agreement, or to take advantage of any right hereunder, shall not be construed as a waiver of such provisions or right of subsequent performance thereof.
2.3. CONSTRUCTION: For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; and (d) the words denoting the singular include the plural and vice versa. Unless the context otherwise requires, references herein: (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
2.4. ENTIRE AGREEMENT: This Agreement (and attached Exhibits) constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, representations, and warranties, whether written or oral, relating to such subject matter. The captions to headings hereof are for convenience only and shall not be considered in construing this Agreement.
2.5. SEVERABILITY: If any provision of this Agreement is determined to be invalid or unenforceable in any jurisdiction, such determination shall not affect the validity or enforceability of the remaining provisions of this Agreement or affect the validity or enforceability of such provision in any other jurisdiction. If any provision is found to be overly broad or unenforceable, the provision shall be construed to be only as broad as enforceable.
2.6. BINDING EFFECT; ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign, delegate, sublicense, or transfer any of its rights, interests, or obligations under this Agreement, in whole or in part, without the prior written consent of the other Party, and any attempt to do so shall be void ab initio. Each one of the Parties represents that it has the full authority to execute this Agreement and that they are bound by the terms and conditions hereof.
2.7. LICENSES: Buyer represents, warrants, and covenants that all necessary import licenses and all other authorizations required for the Product have been obtained (and/or will be obtained) for the entire quantity covered by this Agreement. Buyer covenants and warrants that such licenses shall remain in force for the full life of the Agreement. No failure by Buyer to comply with this Article shall: amount to frustration, constitute a force majeure event; or otherwise constitute justification for the non-performance by Buyer of any obligations (or part thereof) under this Agreement.
2.8. COUNTERPARTS: This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement. Signatures transmitted by electronically (e.g., email), through scanned or electronically transmitted .pdf, .jpg or .png files, shall have the same effect as the delivery of original signatures and shall be binding upon and enforceable against the Parties hereto as if such electronic or scanned documents were an original executed counterpart.
2.9. FORCE MAJEURE: If either Party is prevented for any period of time from performing any obligation in the manner contemplated at the time the Agreement was entered into by reason of Force Majeure, that party will not be in breach of contract for as long as the Force Majeure conditions and its resultant effects, if any, shall exist. The application of this Section shall not affect any rights or obligations, which may have accrued prior to such Force Majeure, or, if such Force Majeure affects only some obligations, then any other rights and obligations of the Parties shall not be affected. “Force Majeure” means an unforeseen event or circumstances beyond the reasonable control of the Seller presenting undue burden for the Seller to perform its obligations hereunder. Force Majeure may be due to natural disasters, acts of war, terrorism, rioting, epidemic, pandemic, strike action, change of government policies, port congestion, vessel unavailability, or delays caused by banking institutions.
2.10. ATTORNEY’S FEES TO THE PREVAILING PARTY: In any action arising under this Agreement, or in any action to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees and costs, both at trial and on appeal.
2.11. CONFLICT OF TERMS: In the event of any inconsistency or conflict between the terms set forth herein and the terms of the main Contract, the terms of the Contract shall prevail and govern.
2.12. CONFIDENTIALITY: The Parties agree that the "ICC Confidentiality Clause 2016" shall apply to this Agreement. The terms of the ICC Confidentiality Clause 2016 are hereby incorporated into this Agreement by reference and shall govern the confidentiality obligations of the Parties with respect to any and all information exchanged under this Agreement.
2.13. NON-CIRCUMVENTION: The Parties agree that the provisions of “ICC Publication 619" shall apply to this Agreement. The terms of ICC Publication 619 are hereby incorporated into this Agreement by reference and shall govern the non-circumvention obligations of the Parties with respect to the transactions and relationships contemplated herein.
2.14. DISPUTE RESOLUTION: This Agreement and the rights and obligations of the Parties arising therefrom (including any non-contractual claims/issues arising) shall be governed by and construed in accordance with the laws of the Dubai International Financial Centre (DIFC), Dubai, United Arab Emirates. In the event of a dispute not being settled amicably within a period of seven days, any action or proceedings to recover damages in respect of or to settle any disagreement or dispute arising out of or in connection with this Agreement (including the validity, interpretation, performance, or breach of the Agreement) and any dispute relating to any non-contractual obligations arising out of or in connection with the Agreement shall be submitted to and finally settled by DIFC Courts Each party hereby consents to the service of process in any legal proceeding related to this Agreement by the mailing of copies thereof by registered or certified mail, postage prepaid, to the party at its address specified in this Agreement, such service to be effective upon receipt. Refusal of service shall be deemed as delivered as of the date of such attempted delivery.
2.15. NOTICES: All notices, requests, claims, demands, and other communications under this Agreement shall be in writing and shall be deemed duly given upon receipt if (a) delivered personally, (b) sent by electronic mail, or (c) sent by registered or certified mail (postage prepaid, return receipt requested) to the respective addresses of the Parties as set forth below, or to such other address as a Party may designate by written notice as follows:
If to GRAND NEW ENERGY LLC:
Qantab of Muscat Way 7758, Home 3742
Sultanate of Oman
ATTN: Hassan F. Malik
EMAIL: sales@gne-intl.com
Notices shall be deemed effective upon actual receipt date at the address or email of the receiving Party. Refusal of service shall be deemed delivered as of the date of such attempted delivery. Either Party may change its address by giving notice of such effect to the other Party.
2.16. TERMINATION: In the event of either Party’s failure to comply with any of the terms and conditions of this Agreement or to perform or observe the obligations imposed on it, the non-breaching Party shall be entitled to terminate this Agreement with thirty (30) days’ notice. The non-performing Party shall be responsible for all resulting damages available at law or in equity.
2.17. LIMITATION OF DAMAGES: In no event shall Seller be liable to the Buyer for any consequential, incidental, punitive, indirect, or special damages whether arising from or relating to (i) the relationship between the Parties, or (ii) breach of the Agreement, regardless of whether the claim under which such damages are sought is based upon breach of contract, negligence, tort, strict liability, statute, regulation or any other legal theory or law unless caused by the other Party’s gross negligence, willful misconduct, or fraud. Notwithstanding anything to the contrary, this Section 8.2 shall not apply to Buyer’s failure to pay the Purchase Price, or any part thereof, that may be owed to the Seller hereunder.
2.18. DEFINITION OF MATERIAL BREACH: For the purposes of this Agreement, a “Material Breach” shall mean any failure by a Party to fulfill a fundamental obligation under this Agreement, thereby significantly impairing the performance, purpose, or intent of the contractual relationship.
A Material Breach shall include, but is not limited to:
(a) Buyer’s failure to issue a Purchase Order for the Trial Shipment within a reasonable amount of time after the execution of this Agreement;
(b) Buyer’s failure to make payment when due as provided for herein;
(c) Seller’s failure to deliver the Trial Shipment in accordance with the agreed-upon specifications or delivery schedule;
(d) A breach of confidentiality by either Party as provided for herein;
(e) Any action or omission by either Party that significantly undermines the purpose or intent of this Agreement.
2.19. IMPACT OF MATERIAL BREACH:
(a) Written Notice & Time to Cure: In the event of a non-monetary Material Breach (i.e., excepting 8.2(b) above) by either Party, the non-breaching Party shall provide written notice to the breaching Party specifying the breach and demanding its remedy within fifteen (15) calendar days from the date of notice.
(b) Failure to Cure: If the breaching Party fails to cure the Material Breach within the specified cure period, the non-breaching Party shall have the right to suspend performance of its obligations under this Agreement, terminate this Agreement with immediate effect upon written notice, and/or seek damages, injunctive relief, or other remedies as permitted under this Agreement or applicable law.
(c) No Relief: Termination of this Agreement due to a Material Breach shall not relieve the breaching Party of any liability for damages incurred by the non-breaching Party as a result of such breach.
(d) Entitlements of the Non-Breaching Party: The non-breaching Party shall be entitled to recover all direct damages, costs, and expenses arising from the breach, including but not limited to legal fees, losses incurred, and additional costs of sourcing replacement goods or services.
(e) Survival of Obligations: Any obligations under this Agreement that, by their nature, are intended to survive termination (including but not limited to confidentiality, governing law, and dispute resolution provisions) shall remain in effect.
(f) Obligation of Good-Faith: Before pursuing termination or legal remedies, the Parties agree to engage in good faith discussions to attempt to resolve any alleged Material Breach in an amicable and commercially reasonable manner.