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GENERAL TERMS AND CONDITIONS FOR THE PURCHASE AND SALE OF METALS AND BULK COMMODITIES 

Introduction

  • These terms and conditions ("Metals GTCs") shall be atached or referenced in the Transacaction Confirmation between Tauber Commodities and the counterparty, each a “Party” and together the “Parties”. Each Party as described in the applicable Transaction Confirmation may be a Buyer or Seller. The Transaction Confirmation together with any exhibits and these Metals GTCs shall constitute the entire agreement of the Parties (the “Agreement”) and supersedes all prior communications, understandings and agreements relating to the subject mater hereof, whether oral or writen. All other terms, conditions and warranties are excluded. 

  • The Parties confirm and acknowledge that by signing the Sales Contract or failing to respond within the applicable time period, they have accepted this Agreement and agree to be legally bound by this Agreement. 

  • In the event of inconsistency between the Metals GTCs and the Transaction Confirmation, the Transaction Confirmation shall prevail. 

Title and Risk 

  • Title to, and all risk of loss of or damage to or by, any Product delivered shall pass as follows: When, delivery is by or to a Vessel as the Product passes the ships rail; when by or into any truck, tank car or pipeline, as the Product enters the receiving equipment, or if received by a common carrier, when accepted by the carrier for shipment; and when into or from storage (other than from a Vessel), as the Product enters into or leaves the last permanent fixtures of the delivering storage facilities. 

Determination of Weight 

  • Seller shall, at its cost, arrange for the determination of the weight of the shipload at the load port by means of draft survey from an independent surveyor before commencement and after completion of loading and shall obtain a certificate of weight from an independent qualified marine surveyor. The determined weight shall be reported on the bill of lading and for all purposes will be final, binding and conclusive as to the weight of the shipload. Buyer shall have the right to have a representative present at such weight determination at Buyer's expense. The certificate of weight/draft survey shall be sent by fax and/or e-mail to Buyer. The Seller has the right to reject any weight claim for Product shipped and already consumed by the Buyer. For rail and truck movements, quantity delivered (a) into or from transport trucks shall be measured by calibration tables, calibrated meters, or scale weights; or (b) into or from rail cars shall be measured by standard rail car calibration tables or calibrated meters, or scale weights. The latest ASTM published standards will apply 

Sampling 

  • Seller shall, at its cost, arrange for the Producer to take a sample of the Product before loaded on board the vessel in accordance with the Producer’s standard procedures and divide it into three (3) equal parts with each part placed in a sealed sample container. One (1) sample shall be delivered to Buyer, and two shall be retained by the Seller or Producer, one for its own analysis and one for a referee analysis, in case such analysis is required by either party. Buyer shall have the right to have a representative present at such sampling at Buyer's expense. 

Analysis 

  • Seller shall arrange for analysis of its own Product samples taken pursuant to Sampling sections, section 6 herein, at its option either at the Producer's lab or in accordance with the Producer's customary analysis procedures. If the sample analyzed conforms to the specifications and/or limits of the Product in accordance with the prevailing producer specifications of the Producer in effect at time of shipment as amended from time to time ("Specifications") it will be conclusively presumed that the entire shipment from which the sample was taken conforms. 

  • 8. Unless a referee analysis is carried out in accordance with section 10, Referee Analysis, below Producer's sample analysis shall be final, binding and conclusive on the parties hereto. 

  • 9. The Product shall be deemed to conform to the applicable Specifications unless Buyer notifies Seller within 30 (thirty) days of receipt of the Product that said Product does not conform to the Specifications and the full details of the non-conformity as evidenced by a surveyors report. Within 14 (fourteen) days of receipt of any notice of non-conformity, Seller shall advise Buyer whether or not it accepts that the relevant Product does not conform with the applicable Specifications. 

Referee Analysis 

  • In case of disagreement between Buyer and Seller about the conformity of any Product supplied under this Agreement, then at the request of either Party the sample retained by Seller/ Producer for referee analysis shall be analyzed in accordance with the Producer's standard analysis procedures by a laboratory mutually agreed upon by the Parties, and the analysis of such laboratory shall be final, binding and conclusive on the Parties. Each Party shall be entitled (at its own cost) to be represented during such referee analysis. The cost of the said analysis will be borne by the Party whose results differ most from those given by the referee laboratory. 

Failure to Meet Specifications 

  • If any Product delivered or to be delivered hereunder did not meet the Specifications as of the time of shipment ("Non-Conforming Product"), Buyer and Seller will endeavor to reach agreement on what actions should be taken with respect thereto. If and to the extent that Buyer and Seller reach any agreement with respect to any action to be taken with respect to any Non-Conforming Product, the provisions of this clause shall be deemed to be modified accordingly (but only to the extent necessary to reflect such agreement and only in respect of such Non-Conforming Product). 

  • In respect of any Non-Conforming Product delivered hereunder, Buyer shall take delivery subject to a negotiated payment to Buyer by Seller of compensation as hereinafter provided. The Parties shall confer in an endeavor to agree upon the compensation to be paid to Buyer by Seller to compensate Buyer for any loss in value of the Product atributable to the Product not meeting the Specifications. If the Parties are unable to agree upon an amount of compensation payable by Seller, the question shall be referred to arbitration pursuant to the section titled Governing Law and in that arbitration the arbitrators shall be bound by the provisions of this section and Limitation of Liability. 

Limitation of Liability 

  • EXCEPT AS PROVIDED FOR IN THIS AGREEMENT NEITHER PARTY SHALL BE LIABLE, REGARDLESS OF ITS OWN NEGLIGENCE, FOR ANY PROSPECTIVE OR SPECULATIVE PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES. THE LIABILITY OF EITHER PARTY WITH RESPECT TO THE AGREEMENT OR ANY ACTION IN CONNECTION HEREWITH WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE SHALL NOT EXCEED THE PRICE OF THE PRODUCT SOLD HEREUNDER OR THE PRICE OF THAT PORTION OF SUCH PRODUCT ON WHICH LIABILITY IS ASSERTED PLUS REASONABLE DIRECT COSTS. Notwithstanding anything to the contrary in this agreement, Seller's liability for any loss or damage arising out of or in any way connected with this agreement shall not exceed the purchase price and applicable transportation costs for the particular Product upon which such liability is based, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. 

  • The provisions of these Limitation of Liability sections shall survive the termination of the Agreement and/or applicable Transaction Confirmation. 

Shipment and Delivery

  • All shipment dates are approximate. The date of the bill of lading shall constitute conclusive evidence of the date of shipment. In case of failure of performance by Buyer hereunder, Seller may defer or suspend further shipments or deliveries, or, at its option, cancel the Agreement as to any Product which has not been shipped or delivered. Any losses, liabilities, costs, or expenses resulting from such deferral or cancellation shall be for Buyer's account. 

Total or Partial Loss 

  • In the event of total or partial loss or damage of the Product during transport after risk of loss or damage to the Product has passed from Seller to Buyer (as set out in section 4 titled "Title and Risk,"), final settlement for the Product that has been lost or damaged shall be made based on the weights determined in accordance with the section 5, titled "Determination of Weights," as applicable, and at the time it would ordinarily have become due for payment in accordance with the terms of this Agreement. For the purpose of this provision in case of total loss the estimated date of arrival of the shipment at the delivery destination shall be considered the shipment's arrival date. 

Claims 

  • Claims as to shortage in quantity or defects in quality shall be made in writing to the other Party within thirty (30) days after the completion of Cargo voyage and shall include full documentation in the case of all claims. Any other claims, including, but not limited to, demurrage, taxes, fees, charges, customs duty or duty drawbacks, shall be made in writing to the other Party within ninety (90) days after the date of delivery and shall include full documentation in the case of all claims. Otherwise any such claim shall be deemed to have been waived. The Party receiving the claim shall respond to the claim within ninety (90) days of receipt of the claim and supporting documentation. Each Party waives and neither Party shall make any claims whatsoever arising under the Agreement for prospective or speculative profits or other special, indirect, incidental, consequential, punitive or exemplary damages. Each Party shall be entitled to offset any claim for demurrage due from the other party from any amounts due the other party, or the affiliates of such Party which shall be a Party to this Agreement, or any transaction hereunder, arising from the Agreement, or any transaction hereunder. 

Insurance 

  • Unless otherwise specified in the Transaction Confirmation, each party shall be liable for insurance on the Product in accordance with their own insurable interest. 

ISPS Code 

  • The Vessel Party, warrants that any vessel which it nominates in connection with this contract complies with the requirements of the ISPS Code and/or the US Maritime Transportation Security Act 2002 ("MTSA") (if applicable). The Terminal Party warrants that any port at which the goods sold under this contract are or are intended to be discharged complies with the requirements of the ISPS Code and/or MTSA (if applicable).

  • The Vessel Party shall be responsible for loss, damages, expense or delay (excluding consequential loss, damages, expense or delay) arising out of or in connection with the failure of the vessel or its owners or charterers to comply with the requirements of the ISPS Code or, if applicable, MTSA and any time thereby lost shall not count as used laytime or time on demurrage. The Terminal Party shall be responsible for loss, damages, expense or delay (excluding consequential loss, damages, expense or delay) arising out of or in connection with any failure by the discharge port to comply with the requirements of the ISPS Code and/or MTSA and any time thereby lost shall count as used laytime or time on demurrage. 

Force Majeure 

  • If either Party is rendered unable, in whole or in part, by Force Majeure or any other cause of any kind not reasonably within its control to perform or comply with any obligation or condition of the Agreement, upon giving notice and reasonably full particulars to the other party, such obligation or condition shall be suspended during the continuance of the inability so caused and such party shall be relieved of liability and shall suffer no prejudice for failure to perform the same during such period, provided however, obligations to make payments then due for Products delivered hereunder shall not be suspended and the cause of suspension (other than strikes and lockouts) shall be remedied as far as possible with reasonable dispatch. Setlement of strikes and lockouts shall be wholly within the discretion of the party having difficulty. The term "Force Majeure" shall include, without limitation by the following enumeration, acts of God and the public enemy, storm, fire, explosion, accidents, breakdowns, strikes and any other industrial, civil, or public disturbance, acts of terrorism, inability to obtain materials, supplies, permits or transportation facilities, periodic shutdown or turnaround of plants, terminals or equipment for general inspection, repair and maintenance beyond the reasonable control of either party or delay, breakdown or destruction of plants, terminals or equipment, including plants, terminals or equipment of suppliers of Product affected by force majeure events beyond the reasonable control of either party, any act or omission by parties not controlled by the party having difficulty, or any other cause beyond the reasonable control of either party and any laws, orders, rules, regulations, acts of restraint of any government or governmental body or authority, civil or military. Seller shall not be obligated to remedy any cause; make up deliveries omited by reason thereof; acquire additional Product from any source; supply any additional Product; or deliver Product from a terminal other than the designated terminal or terminal customarily used, and this Agreement shall not be extended thereby, but the quantities adjusted accordingly. The term “Force Majeure” shall not include, without limitation by the following enumeration, periodic shutdown or turnaround of plants, terminals or equipment for general inspection, repair and maintenance within the reasonable control of either Party or delay, breakdown or destruction of plants, terminals or equipment, including plants, terminals or equipment of suppliers of Product affected by force majeure events, within the reasonable control of either Party. 

Payment 

  • Payment shall be made as specified in the Transaction Confirmation. In the event not specified in the Transaction Confirmation, invoices are to be paid in full by Wire Transfer/EFT, in immediately available funds, before 2:00 P.M. Central Time (CT). Payments are to be made by Wire Transfer /EFT ten (10) days after receipt of invoice for invoices of $10,000.00 or more. Invoices that are less than $10,000.00 may be paid by check within thirty (30) days after receipt of invoice. An invoice issued, and its supporting documentation, must be received before 12:01 p.m. CT to be deemed received that day. Invoices received after 12:01 p.m. CT are deemed received the next business day. The receipt date equals day zero when calculating the payment due date. Payments due on a Saturday or a Friday bank holiday shall be deemed due the preceding business day. Payments due on a Sunday or a Monday bank holiday shall be deemed due the following business day. Payments due on a Tuesday, Wednesday or a Thursday bank holiday shall be deemed due the following business day. If payment is not received as specified by the Contract, interest may be charged on the unpaid balance at a rate equal to the lesser of eighteen percent (18%) per annum or the maximum non-usurious rate (the “Interest Rate”). The parties agree that the laws of the State of New York shall apply with respect to interest charges for late payment.