Dated 19 December 2025 (“Effective Date”)
Between
Plasfer Global Resources – FZCO, a company incorporated under the laws of the United Arab Emirates, with trade licence number [FZCO TRADE LICENCE NUMBER – TO BE CONFIRMED], having its registered office at IFZA Business Park, Building A1, Dubai Silicon Oasis, Dubai – UAE, P.O. Box 342001, Dubai, UAE
Operation Office: Iris Bay, Business Bay – Dubai – United Arab Emirates (“Plasfer”)
and
Counterparty: [counterparty identification, registration number and registered office] (“Counterparty”)
Each a “Party” and together the “Parties”
(“GTC”)
1. Purchase and Sale Transactions, Definitions
1.1 From time to time, the Parties intend to enter into one or more Transactions, each subject to these GTC and the Confirmation issued in respect of each Transaction.
1.2 The commercial terms of each Transaction may, at the request of either Party, be confirmed in writing in a Confirmation substantially in the form of Annex 1 (Base Metal Purchase and Sale Confirmation). Each Confirmation supplements, forms part of, incorporates by reference and is subject to these GTC; however, the absence of a signed Confirmation does not affect the validity or enforceability of any Transaction entered into under these GTC. To the extent of any inconsistency or conflict between a Confirmation and these GTC, the Confirmation prevails.
1.3 The Parties intend to be legally bound by the terms of each Transaction from the moment the Counterparty confirms by email its acceptance of the trade proposal or trade summary received from Plasfer, containing, absent manifest error, the essential terms: Goods, Specifications, Quantity, Payment Amount, Delivery Date and payment terms (if any). The Parties acknowledge and agree that no signature or execution of these GTC or of any trade confirmation is required for the formation of a legally binding contract between them.
1.4 All Transactions are entered into on the basis that these GTC and all Transactions constitute a single agreement between the Parties (collectively, the “Agreement”), the Parties not otherwise entering into them.
1.5 Definitions:
a) “Buyer” means Plasfer or the Counterparty, depending on the capacity in which they entered into a Transaction;
b) “Business Day” means any day other than a Saturday, Sunday or any day on which banks are closed in New York (USA), London (UK) or Geneva (Switzerland);
c) “Confirmation” means a written confirmation of the terms of a Transaction, substantially in the form of Annex 1 (Base Metal Purchase and Sale Confirmation);
d) “Delivery” means the fulfilment by the Seller of the obligations expressed as constituting delivery of the Goods to the Buyer, as specified in the Confirmation and the applicable Delivery Basis; “Deliver” and “Delivered” shall be construed accordingly;
e) “Delivery Basis” is as set out in the relevant Confirmation;
f) “Delivery Date” is the date of Delivery of the Goods set out in the relevant Confirmation;
g) “Delivery Point”, as referred to in Delivery Bases E to I, means the place at which the Seller is required to Deliver the Goods to the Buyer;
h) “Duty” means any customs duty;
i) “EU” means the European Union;
j) “FM Period” has the meaning specified in Clause 10.8, unless another period is specified in a Confirmation;
k) “Goods” means the base metal referenced in a Confirmation and the subject of a Transaction;
l) “Interest Rate” means an annual interest rate equal to the One-Month SOFR Rate or, for currencies other than the US dollar, an interest rate determined on the basis of the rates offered for deposits by three major banks for that currency, as selected by the Non-Defaulting Party. Interest is compounded daily and is payable on demand. “One-Month SOFR Rate” means the one-month SOFR rate administered by the Federal Reserve Bank of New York (or any other entity that assumes the administration of that rate), published by the Federal Reserve Bank of New York at http://www.newyorkfed.org (or any other entity that assumes publication of that rate);
m) “L/C” means any irrevocable documentary letter of credit or standby letter of credit, as applicable;
n) “Member State” means a member state of the EU;
o) “Due” means any amounts owed or otherwise accrued and payable (whether or not such amounts have been or may be invoiced), to be calculated in accordance with the procedures in Clause 11.3 (supplemented by Clauses 11.7 and 11.10) as at the Termination Date;
p) “Payment Amount” is the amount the Buyer must pay the Seller as the total price for the purchase of the Goods specified in the Confirmation, being the Unit Price multiplied by the Quantity or Weight of the Goods sold;
q) “Payment Date” is the date specified as such in the Confirmation;
r) “Seller” means Plasfer or the Counterparty, depending on the capacity in which they entered into a Transaction;
s) “Tax” means any tax, levy, impost or other charge of a similar nature (including any penalty or interest payable in connection with any failure to pay or delay in paying any of the same), import or export duties, excise duties, production or wholesale taxes and any other similar taxes based on turnover, whatever they are called, but excluding a general tax on net income or profits;
t) “Transaction” means an agreement for the purchase and sale of Goods between Buyer and Seller, the terms of which are confirmed by a Confirmation and which is subject to these GTC;
u) “US” means the United States of America;
v) “US Dollars” means the lawful currency of the US; and
w) “VAT” means value added tax, goods and services tax or any other tax of a similar nature (including sales tax or a tax in substitution for or in addition to value added tax) applicable in any jurisdiction.
2. Payment
2.1 On the applicable Payment Date, the Buyer must pay the Payment Amount to the Seller in accordance with the applicable Transaction. The Payment Amount does not include any taxes, charges, fees and expenses (including, without limitation, any charges newly imposed or increased after a Transaction is entered into).
2.2 The Buyer must pay the Payment Amount to the Seller by telegraphic transfer to the bank account specified on the Seller’s invoice in US dollars (or in any other currency that may be agreed between the Parties), in immediately available funds, without any discount, deduction, withholding, rebate, set-off or counterclaim, and free of charge, in accordance with the payment terms, if any, set out in the Confirmation. The Buyer’s obligation to pay the Payment Amount to the Seller is discharged when the relevant Payment Amount is credited to the Seller’s bank account as cleared funds.
2.3 Where the Parties agree that payment of the Payment Amount will be made by L/C, the Buyer must ensure that, no later than five Business Days before the first day of the Delivery Period (“L/C Opening Deadline”), the Buyer causes an L/C to be opened or confirmed by a first-class international bank acceptable to the Seller, in a form and for an amount acceptable to the Seller. Such L/C must be notified to the Seller by the relevant advising bank before the L/C Opening Deadline. The issuing or confirming bank of the L/C must have a minimum rating of A- (Standard & Poor’s), A- (Fitch) or A3 (Moody’s). The Seller is not obliged to Deliver the Goods to the Buyer unless it receives an L/C acceptable under this Clause.
2.4 The Buyer is liable to the Seller for any costs, losses or expenses incurred by the Seller as a result of the late opening of such L/C.
2.5 All issuance costs, including confirmation charges and management fees (if any), relating to the L/C, are for the account of the Buyer.
2.6 The Buyer remains liable for payment of the Payment Amount to the Seller if payment is not made to the Seller under an L/C for any reason.
2.7 Any minor discrepancies in the documents presented by the Seller for payment do not entitle the Buyer to cancel or terminate a Transaction, and the Buyer must pay the Payment Amount to the Seller, in accordance with Clause 2.1, following re-presentation by the Seller of the corrected documents to the Buyer.
2.8 Where the Parties agree that the Buyer must provide a parent company guarantee to the Seller, such guarantee must be on terms and in a form acceptable to the Seller, in its sole discretion (“Parent Company Guarantee”). Within the period specified by the Seller, the Buyer must deliver an original Parent Company Guarantee to the Seller. The Buyer is liable for any delay resulting from the late issuance of such Parent Company Guarantee.
2.9 Unless otherwise agreed in a Confirmation, where it is not possible to calculate the unit price before the Due Date, the Seller must calculate a provisional price based on all quotations available as at the invoice date and, if the quantity is not yet known, the average contractual quantity. The Seller must, as soon as reasonably possible after all relevant pricing information becomes available, prepare the final invoice or credit note for the difference between the provisional price and the final price. The paying Party must make the final payment within three (3) Business Days of receipt of the final invoice or credit note.
2.10 In the event of late payment by the Buyer, the Seller reserves the right to charge interest on the outstanding amount at a rate of 3.5 per cent above the Secured Overnight Financing Rate (“SOFR”).
The SOFR rate means the period average published by the Federal Reserve Bank of New York (or a successor administrator) for the period closest in duration to the late payment period, as published on the Federal Reserve Bank of New York’s website, five days before the date on which payment in full is made. If the period average is not published on a given calendar day, the period average published on the preceding business day is used. If the Federal Reserve Bank of New York ceases to publish a period average, the annual SOFR rate will be calculated by compounding SOFR in arrears over the late payment period, with a five-business-day lookback period. If SOFR is negative for any calculation period, it is treated as zero for that period.
If SOFR is not available, a reference rate that has been formally designated, nominated or recommended as a replacement for SOFR by any applicable central bank, regulator or other supervisory authority, or a group of them, or any working group or committee sponsored or chaired by, or convened at the request of, any of them (the “Replacement Rate”) replaces SOFR, provided that, if no replacement rate is available, the Seller will select another equivalent rate acting reasonably.
Interest accrues from the due date (inclusive) to the day on which payment is received in the seller’s account (exclusive), calculated on the basis of a 360 (three hundred and sixty) day year, pro rata temporis, on the relevant outstanding amount(s). Such interest is payable to the Seller on demand and accrues until payment, regardless of termination of the contract for any reason. This provision must not be construed as indicating any willingness on the part of the Seller to extend credit as a matter of course and is without prejudice to any rights and remedies the Seller may have under the contract or otherwise.
3. Delivery
3.1 On the applicable Delivery Date, the Seller must Deliver the Goods to the Buyer and the Buyer must accept Delivery of the Goods from the Seller, in accordance with the applicable Transaction.
3.2 The timing of Delivery of the Goods by the Seller is of the essence in relation to each Transaction. The Seller is not liable for any delay in or failure to perform its obligations under these GTC to the extent that such delay or failure is caused by new or increased taxes, duties, charges, fees, expenses and/or non-fiscal measures.
3.3 On Delivery, the Goods must conform to the Quantity, Specifications, Quality and Description set out in the relevant Confirmation.
3.4 Deliveries of identical Goods to be made under Transactions between Seller and Buyer, with a delivery date at the same Delivery Point and on the same Delivery Date, may be netted or settled against each other for the purposes of calculating the quantity/weight of Goods to be Delivered and the corresponding Payment Amounts.
3.5 Without prejudice to Clause 11 of these GTC, where the Buyer or its agent does not accept Delivery of the Goods, the Buyer must indemnify the Seller for all reasonable and documented costs and expenses, including, without limitation, time charter freight, demurrage and detention damages, for which the Seller may be liable as a result of the Buyer’s or its agent’s failure to accept Delivery of the Goods, in accordance with the Transaction.
4. Transfer of Risk and Title
4.1 Risk of loss of or damage to the Goods passes from the Seller to the Buyer upon Delivery, in accordance with the applicable Delivery Basis.
4.2 Title to the Goods passes from the Seller to the Buyer upon payment in accordance with Clause 2 of these GTC (notwithstanding that, on the applicable Payment Date, the Goods may form part of an undivided bulk).
4.3 Until title to the Goods has passed unconditionally from the Seller to the Buyer in accordance with these GTC, the Goods or any part thereof and any documents relating to the Goods or any part thereof Delivered under a Transaction remain the property of the Seller. The Seller retains title to them and the Goods are held in trust by the Buyer until receipt by the Seller of all payments due in respect of such Delivery. If the effectiveness of such retention of title by the Seller is subject to registration or compliance with other formalities under applicable law, the Buyer must take all steps necessary under applicable law, at its own cost and as required by the Seller, to ensure that the Seller’s title is duly reserved and effective.
4.4 Notwithstanding any other provision of the GTC or a Confirmation, where the agreed Incoterm is FCA and the Buyer does not nominate its carrier and does not collect the Goods from the warehouse, risk passes to the Buyer two (2) days after the date of unconditional release.
5. Insurance
Unless otherwise agreed by the other Party, the Party obliged to insure the Goods must do so against “all risks” of direct physical loss or damage with Lloyd’s Underwriters or an insurer with a minimum rating of A- (Standard & Poor’s) or Aa3 (Moody’s). The insurance must be on Institute Cargo Clauses “A” (“All Risks”) terms or equivalent, and must include cover for Strikes, Riots and Civil Commotion and War Risks at sea, in accordance with the corresponding Institute Cargo Clauses or equivalent. Unless otherwise agreed prior to shipment, the Goods must be insured for their invoiced value plus 10% (i.e. 110%). Insurance must be effected in the currency agreed for the Transaction.
6. Inspection for Disputes over Quality, Condition, Description, Specification or Quantity/Weight
6.1 Inspection. Notwithstanding any prior payment, the Goods are subject to inspection and testing by the Buyer from the Delivery Date for a period of 30 calendar days. If, on inspection or testing, the Goods fail to meet any Specification (“Non-Conforming Goods”), without prejudice to any of its other rights or remedies, the Buyer is entitled to claim an amount in accordance with Clause 6.2 of these GTC.
6.2 Claims. The Buyer’s sole and exclusive remedy where the Seller supplies Non-Conforming Goods is a payment to the Buyer by the Seller equal to the Replacement Price less the Price payable by the Buyer, multiplied by the quantity in metric tonnes of Non-Conforming Goods. Any claim relating to Non-Conforming Goods must be made within 30 calendar days of the applicable Delivery Date, failing which the Buyer is deemed to have accepted the Goods. The “Replacement Price” is the price at which the Buyer, having regard to its obligation to take reasonable steps to mitigate its losses and acting at all times in a commercially reasonable manner, acquires replacement Goods of equivalent quantity and quality to the Non-Conforming Goods or, in the absence of such acquisition, the market price for that quantity and quality of Goods on the same delivery terms set out in the applicable Confirmation, determined by the Buyer in a commercially reasonable manner.
7. Taxes
7.1 Any Taxes, existing or introduced after the trade date, on the Goods, imposed in the country of:
a) loading are borne by the Seller; and
b) discharge are borne by the Buyer.
7.2 Withholding. All payments to be made by the Buyer to the Seller must be made without any deduction of Taxes and free and clear of the same, except to the extent required by law. If a Party (the “payer”) is required by law to make any deduction or withholding of any amount due to the other Party (the “payee”) under these GTC on account of Taxes, the payer must cooperate with the payee in a timely manner with respect to compliance with any procedural formalities necessary to enable the payee to benefit from any exemption or reduced rate of withholding under any applicable double taxation treaty.
7.3 VAT.
a) Where VAT is due under the rules applicable at the place of supply of the Goods (the “place of supply”), the Seller must issue a valid tax invoice showing that VAT and the date for its payment. The Buyer must pay that VAT to the Seller in addition to the Payment Amount, and any Duty due must be paid in the same manner required for payment of the Payment Amount.
b) The Buyer must provide the Seller, within 30 calendar days of Delivery of the Goods, with proof satisfactory to the relevant competent authority, so as to permit zero-rating or exemption of the supply of the Goods in accordance with applicable law. If the Buyer fails to provide such proof to the Seller within the applicable time limits, the Seller may issue a further invoice for the amount of any Tax payable on the Goods, together with any interest on late payment and any penalties for which the Seller is or becomes liable as a result of such failure by the Buyer. The Buyer must pay any such invoice to the Seller in full within three Business Days of presentation or, if later, on the date of payment of the Payment Amount.
c) Where the Buyer accepts Delivery of the Goods in the US, the Buyer must, if relevant to the Transaction, provide the Seller with an exemption certificate or other reasonably satisfactory proof of exemption for US Sales and Use Tax purposes or for any other tax purpose. The Buyer must pay or reimburse the Seller for the amount of applicable federal, state and local taxes and duties paid or incurred by the Seller, directly or indirectly, in respect of the quantity of Goods sold and Delivered hereunder and/or their value, and the Buyer indemnifies the Seller against any such tax liabilities.
d) The Buyer indemnifies the Seller in respect of any costs, penalties and interest incurred by the Seller as a result of the Buyer’s failure to pay, or delay in paying, any Tax in accordance with these GTC.
e) If the Seller obtains a credit or refund from the authorities of any Tax that was paid by the Buyer, the Seller must, within five Business Days of obtaining such credit or refund, reimburse the Buyer with the net amount so credited or refunded, less any costs, penalties and interest paid. The Seller must use all reasonable efforts, at the Buyer’s cost, to obtain such credit or refund.
7.4 Customs.
a) The Seller is responsible for obtaining, at its own cost and expense, all licences and authorisations necessary for export of the Goods from the country of loading. The Seller is the exporter of record for all tax purposes (where applicable in the export jurisdiction) and is responsible for compliance with customs procedures.
b) The Buyer is responsible (except where the Goods are sold on a Delivered Duty Paid basis) for obtaining, at its own cost and expense, all licences and authorisations necessary for import of the Goods into the country of destination. Except for Goods Delivered under Delivery Basis H (Delivered Duty Paid) in Annex 2, the Buyer is the importer of record for all tax purposes (where applicable in the import jurisdiction) and is responsible for compliance with customs procedures.
c) All Taxes, duties, charges, import duties and/or other import fees, charges and expenses and/or non-fiscal measures, retroactive or not (including, without limitation, any charges newly imposed or increased after a Transaction is entered into):
(i) arising from export of the Goods, freight or transport under the Incoterm that are necessary for clearance of the Goods out of the customs territory of the country of dispatch, are the responsibility of the Seller; and
(ii) arising from import of the Goods, freight or transport under the agreed Incoterm, are the responsibility of the Buyer.
8. Representations and Warranties
8.1 On entering into these GTC and on each day on which a Transaction is entered into, each Party represents and warrants to the other Party that:
a) it has the necessary corporate capacity, power and authority, is duly authorised and has obtained all consents, approvals, licences and authorisations required by any applicable laws and regulations to enter into this Agreement and any Transaction, and to perform its obligations under them, including to trade the Goods, and all conditions of such consents, approvals, licences and authorisations have been complied with;
b) the execution of these GTC and performance of its obligations under them do not violate or conflict with any applicable law, any provision of its constitutional documents, any order or judgment of any court or other governmental agency applicable to it or any of its assets, nor any contractual restriction binding on it or affecting any of its assets;
c) its obligations under these GTC and any Transaction constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms (subject to any applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application, regardless of whether enforcement is sought in a proceeding in equity or at law);
d) there is no action, suit or proceeding pending or, to its knowledge, threatened against it, at law or in equity or before any court, arbitral tribunal, governmental body, agency or official or any arbitrator, that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transaction, or its ability to perform its obligations under them;
e) in entering into these GTC and any Transaction, it is acting for its own account and not as agent or otherwise as representative of any other party; accordingly, (i) it is and will remain liable for, and the beneficial owner of, the Transaction; (ii) it has made its own independent decision to enter into these GTC and any Transaction on an arm’s length basis and on the basis of such tax, accounting, regulatory, legal and financial advice as it has deemed necessary, and not on the basis of any view expressed by the other Party, except for the representations and warranties expressly set out in these GTC, and it has not received from the other Party any guarantee or assurance as to the expected results of any Transaction; (iii) the other Party is not acting as a fiduciary or adviser to it in relation to these GTC or any Transaction; (iv) it intends to Deliver, or intends to accept Delivery of, the Goods or the property therein, in accordance with the terms of the Transaction; and (v) it has determined that these GTC and any Transaction are fully consistent with its needs, strategy, objectives and financial condition, comply with and are fully consistent with all investment policies, guidelines and restrictions applicable to it, and are suitable and appropriate for it;
f) it fully understands the rights and obligations under these GTC and any Transaction, is familiar with instruments with characteristics similar to those that are the subject of these GTC and any Transaction, and has sufficient sophistication, knowledge, expertise and experience in trading base metals, in financial and business matters to be able to evaluate and understand, and accepts, the terms, conditions, merits and suitability of entering into these GTC and any Transaction, and is also able to assume, and does assume, the financial and other risks of entering into these GTC and any Transaction; and
g) no order has been made, no petition has been presented, no resolution has been passed and no meeting has been convened for its winding-up (or other process by which the business is wound up and the assets of the company in question are distributed among creditors and/or shareholders or other contributories, and/or the business, undertaking and assets of the company are managed by a person appointed for that purpose by a court, governmental agency or similar body), and there are no cases or proceedings under any applicable insolvency, reorganisation or similar laws in any jurisdiction in relation to it, and no receiver (including an administrative receiver), liquidator, trustee, administrator, custodian or similar official has been appointed in any jurisdiction in relation to the whole or any part of its business or assets.
8.2 Each of the representations and warranties set out above is deemed to be repeated by the Parties on each Delivery Date and on each Payment Date.
8.3 In respect of each Transaction, the Seller represents and warrants to the Buyer that, immediately before and at the time of Delivery of the Goods to the Buyer:
a) the Goods are not subject to any mortgage, charge, pledge, lien (other than a general warehouse lien in respect of storage in accordance with any applicable market practice), claim, security interest, right of retention or other arrangement having a similar effect (each an “Encumbrance”) and, at that time, the Seller is the sole legal and beneficial owner of the Goods; and
b) the Seller has the full and unconditional right to make such Delivery and that, on the dates on which title passes from the Seller to the Buyer, ownership passes to, and the Buyer will receive, all rights, title and interest in the Goods, free of any Encumbrance.
8.4 On each trade date, each Party is deemed to represent and warrant to the other Party as follows:
a) if it is the Buyer, that it has obtained any governmental approval necessary for the Buyer to pay the Payment Amount in US dollars (or in the currency of the relevant Transaction) to the bank account designated by the Seller; and
b) that it will not at any time violate or disregard any valid requirements of any governmental authority relating to the purchase, sale and resale of Goods, including, without limitation, any law, executive order, regulation or treaty that is or ought to be known to it, and that no Transaction will knowingly, intentionally or recklessly cause a violation of any law, order or regulation that is or ought to be known to it.
9. Undertakings
9.1 Each Party undertakes to obtain and maintain all licences, consents and authorisations necessary in relation to the loading, storage, transport and (where applicable) import and/or export of the Goods. Failure to obtain and maintain such licences, consents and authorisations is not a defence to failure to perform any part of its obligations hereunder by either Party.
9.2 Each Party acknowledges that it is legally bound by these GTC and by each Transaction, and obliged to perform this Agreement and each Transaction, and is entitled to rely on performance by the other Party from the moment it entered into a Transaction.
9.3 The Parties undertake, to the extent not prohibited by applicable law, not to contest or raise as a defence the validity or enforceability of any Transaction entered into in accordance with these GTC on the basis of laws relating to (i) whether any employee or representative of the Party had authority to enter into a Transaction, (ii) the capacity of either Party, or (iii) the due authorisation of any Transaction by either Party.
9.4 The Seller must, if requested by the Buyer, provide the Buyer with a certificate of origin for the Goods. Unless otherwise agreed by the Parties, the certificate of origin must be authenticated by official stamp and signature of the customs authorities or the chamber of commerce at the port of loading. The Seller must ensure that the Buyer receives the certificate of origin within 30 days of the date of the bill of lading. It is a condition of each Transaction that the Seller complies with its obligations under this Clause 9.4.
10. Force Majeure
10.1 A Party (the “Claiming Party”) is not liable for any failure or delay in performing its obligations under a Transaction, other than payment of money when due, if and to the extent that its performance is prevented, hindered or delayed by an act, event or circumstance or combination of acts, events or circumstances that are beyond the reasonable control of the Claiming Party and that Party has complied with the requirements of Clauses 10.2 and 10.3.
10.2 As soon as an event occurs that a Party considers may subsequently lead it to claim Force Majeure relief under this Agreement, the Claiming Party must notify the other Party, describing the event and the obligations whose performance has been or could be prevented, hindered or delayed by it. Where a Party intends to claim Force Majeure relief under a Transaction, it must notify the other Party of such intention as soon as reasonably possible and must state in that notice:
(i) particulars of the event giving rise to the Force Majeure claim, in as much detail as reasonably available at that date, including the time and date on which the Force Majeure event occurred; and
(ii) the obligations whose performance has actually been prevented, hindered or delayed and an estimate (acting in good faith) of the period during which the affected Party believes performance is likely to be prevented, hindered or delayed (“FM Notice”).
10.3 An FM Notice must subsequently be supplemented and updated no less frequently than monthly during the FM Period, specifying the steps taken to remedy the circumstances causing the Force Majeure and the date on which the Force Majeure is expected to cease.
10.4 The Parties must use reasonable, diligent efforts to resume normal performance of their obligations under any affected Transaction after the occurrence of a Force Majeure event. Pending resumption of normal performance, the Parties must continue to perform their obligations under any Transaction, to the extent not prevented by such Force Majeure event. The Claiming Party may claim Force Majeure relief under this Agreement, provided that the Claiming Party:
a) has taken all reasonable precautions, having regard to all matters within its knowledge before the occurrence of the Force Majeure and all relevant factors, to avoid the effect of the Force Majeure; and
b) has used reasonable efforts to mitigate the effect of the Force Majeure and to perform its obligations under the affected Transaction in any other reasonably practicable manner; and
c) may only declare Force Majeure in respect of individual Deliveries under the affected Transaction, to the extent that those Deliveries are affected by such Force Majeure.
10.5 For these purposes, “Force Majeure” means any event or circumstance beyond the reasonable control of the Party so affected, including, without limitation, any act of God, strike, lockout or other labour dispute, war, riot or civil commotion, any pandemic or epidemic, plague, quarantine or lockdown, any prohibition or restriction of any kind (including, without limitation, quarantine or lockdown implemented in connection with or relating to a pandemic) imposed by any competent regulatory authority, any accidental breakdown of any machinery or facilities necessary for the transport or Delivery of the Goods at the Delivery Point. In no circumstances do the following constitute Force Majeure: (i) force majeure affecting the Seller’s supplier where the Goods that are the subject of a Transaction are of generic quality and not a specific brand, (ii) loss of the Buyer’s markets, (iii) force majeure affecting one or more of the Buyer’s customers (which, for the avoidance of doubt, does not include the Buyer itself), (iv) the Buyer’s economic inability to use or resell the Goods, (v) the Seller’s ability to sell the Goods to a market at a more advantageous price and (vi) the introduction or increase of taxes, duties, charges, fees, expenses and/or non-fiscal measures by the country of import (including, without limitation, the introduction of import duties after a Transaction is entered into). The Buyer may not declare Force Majeure if the quotational period or pricing period for the affected Delivery under the affected Transaction has begun or is known at that time.
10.6 The Seller is not liable for any delay in bringing the Goods or any part thereof to, or in loading the Goods or any part thereof at, the port(s) of shipment or the Delivery Point specified in the Confirmation, nor is either Party liable for any delay where it is required to charter a vessel or engage other means of transport to perform its obligations under the Transaction, in each case where such delay is caused by Force Majeure.
10.7 Following the total or partial cessation of Force Majeure, to the extent applicable, the Claiming Party must use its best efforts to allocate proportionately among its counterparties (including the Non-Claiming Party) its supply of Goods (where it is the Seller) and/or its receiving facility availability to accept Delivery (where it is the Buyer), as applicable, of any undelivered quantity of Goods that has not been affected by, or is no longer subject to, the Force Majeure.
10.8 Unless a different FM Period is specified in a Confirmation, if the Force Majeure continues for a continuous period of more than three months from the FM Notice, the Non-Claiming Party is entitled to terminate the affected Delivery under the affected Transaction (or, where the affected Transaction provides for only one Delivery, the affected Transaction) by notice to the Claiming Party, specifying the termination date for the affected Delivery (or the affected Transaction), such termination date being no later than 30 days after the date on which the termination notice is sent. If such termination notice is sent, the provisions of Clauses 11.3 to 11.7 apply, with the necessary adaptations, in relation to the affected Delivery under the affected Transaction (or the affected Transaction), for which purposes the Claiming Party is deemed to be the Defaulting Party. For the purposes of this Clause 10.8, all references in Clauses 11.3 to 11.7 to Transaction(s) and their termination must be read as references to the affected Delivery under the affected Transaction (or, where the affected Transaction provides for only one Delivery, that affected Transaction), and nothing in this Clause 10.8 must be construed as conferring on a Party the right to terminate any Transaction (or any Delivery under it) other than the affected Delivery under the affected Transaction (or, where the affected Transaction provides for only one Delivery, that affected Transaction), whose performance has been delayed or prevented by Force Majeure. For the avoidance of doubt, early termination of an affected Delivery under an affected Transaction (or of an affected Transaction that provides for only one Delivery) in accordance with this Clause 10.8 does not constitute a Default or an event of default, howsoever defined, in relation to the Claiming Party.
11. Default, Early Termination and Liquidation
11.1 Each of the following events constitutes an event of default in relation to a Party (“Default”):
a) a Party fails to pay the Payment Amount in full on the applicable Payment Date under any Transaction, if such failure is not remedied by the third Business Day after payment is demanded by written notice;
b) a Party fails to Deliver or fails to accept Delivery of the Goods on the applicable Delivery Date;
c) a Party otherwise breaches any material term of this Agreement or of a Transaction;
d) a representation made, repeated or deemed made or repeated by a Party under this Agreement proves to be incorrect or misleading in any material respect when made, repeated or deemed made or repeated;
e) a Party is unable or admits its inability to pay its debts as they fall due, suspends payment of any of its debts, institutes or has instituted against it proceedings (provided such proceedings are not dismissed within 15 days) seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or, by reason of actual or anticipated financial difficulties, commences negotiations with any of its creditors with a view to rescheduling its liabilities, or if any corporate action or proceeding or other procedure is commenced in relation to any of the foregoing, or if a liquidator, receiver, administrator, administrative receiver or other similar official is appointed in respect of that Party or any of its assets, or if any analogous step is taken in any jurisdiction; or
f) a Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and (i) the resulting, surviving or transferee entity does not assume all obligations of that Party under this Agreement; and (ii) the creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of that Party immediately before such action;
g) the Seller has reasonable grounds to believe that the Buyer may be unable or unwilling to perform its obligations hereunder;
h) the Buyer’s failure to comply with any payment guarantee, L/C, Parent Company Guarantee or credit support instrument in accordance with this Agreement;
i) any default under any L/C, Parent Company Guarantee or other credit support instrument, or any failure by the issuer of such L/C, Parent Company Guarantee or credit support instrument to pay when required, or the occurrence of any event set out in Clause 11.1e) in relation to the issuer of such L/C, Parent Company Guarantee or credit support instrument; and
j) the Buyer’s failure to comply with any term or condition of any agreement with the Seller other than this Agreement.
The Party to which any Default applies is the “Defaulting Party” and the other Party is the “Non-Defaulting Party”.
11.2 If at any time a Default has occurred and is continuing, the Non-Defaulting Party may, in its sole discretion and at any time, by written notice to the Defaulting Party specifying the nature of the Default, take any or all of the following actions:
a) suspend performance of its obligations and/or any rights of the Defaulting Party under any or all Transactions then in effect (including, without limitation, where the Buyer is the Defaulting Party, the Seller withholding or rescheduling Delivery of any of the Goods, or where the Seller is the Defaulting Party, the Buyer rejecting Delivery of the Goods from the Seller, withholding payment of all or part of any Payment Amount or rejecting the Goods after Delivery); and/or
b) in relation to Transactions where the Defaulting Party is the Buyer and the Seller has delivered any Goods to the Buyer, take possession of and/or collect the Goods and/or otherwise enforce any retention of title and/or enforce any guarantee provided by or on behalf of the Defaulting Party and/or draw on amounts due under any L/C, Parent Company Guarantee or other credit support instrument provided by the Defaulting Party or its guarantor under this Agreement; and/or
c) terminate this Agreement and any or all Transactions then in effect, designating an early termination date (“Early Termination Date”) in the written notice (“Termination Notice”). The Early Termination Date may not be earlier than the effective date of the Termination Notice nor later than twenty (20) calendar days after and including the date on which the Termination Notice is sent.
11.3 If a Termination Notice is sent designating an Early Termination Date, no further payments or deliveries are required in respect of any terminated Transaction, without prejudice to the other provisions of the Agreement. On the Early Termination Date, or as soon as reasonably practicable thereafter, the Non-Defaulting Party must calculate the financial amount resulting from the early termination of each terminated Transaction and must notify the Defaulting Party in writing of the resulting net amount (positive or negative) (the “Termination Amount”). The Defaulting Party may request in writing and, upon such request, the Non-Defaulting Party must provide in writing detailed support for the calculation of the Termination Amount.
11.4 The Termination Amount is an amount equal to the sum of (without duplication):
a) any amount due and payable in respect of any payment or Delivery that should have been made on or before the Early Termination Date by one Party to the other Party under the terminated Transactions but was not made; plus
b) any costs, fees, charges, expenses, brokerage commissions and other similar transaction, transport and/or storage costs and expenses reasonably incurred by the Non-Defaulting Party in exercising its termination rights under this Agreement, including, without limitation, in terminating any arrangement under which the Non-Defaulting Party had hedged its obligations or market positions, or in entering into new arrangements replacing the terminated Transactions (“Costs”); less
c) an amount equal to the present value of the economic benefit, if any (excluding Costs), to the Non-Defaulting Party resulting from the termination of its rights and obligations in respect of the terminated Transactions, including in respect of the payment and Delivery obligations of the Parties for the terminated Transactions that, but for the designation of an Early Termination Date, would have been required after that date (assuming satisfaction of any applicable conditions precedent) (“Gains”); plus
d) an amount equal to the present value of the economic loss, if any (excluding Costs), to the Non-Defaulting Party resulting from the termination of its rights and obligations in respect of the terminated Transactions, including in respect of the payment and Delivery obligations of the Parties for the terminated Transactions that, but for the designation of an Early Termination Date, would have been required after that date (assuming satisfaction of any applicable conditions precedent) (“Losses”).
11.5 The Non-Defaulting Party must calculate the Termination Amount acting in good faith and in a commercially reasonable manner (such calculation being conclusive and binding in the absence of fraud or manifest error), comparing the value of:
a) the remaining term, Quality/Specification, Quantity/Weight and Unit Price of the Goods under each terminated Transaction (had it not been terminated) with
b) the remaining term, equivalent quality/specification, equivalent quantities/weight and equivalent market prices of equivalent goods that could be realised under a replacement transaction for each terminated Transaction that would place the Non-Defaulting Party in a position equivalent to that it would have been in had this Agreement not been terminated.
11.6 The Non-Defaulting Party may use values quoted by a bona fide third party active in the base metals markets or that could reasonably be expected to be available in such markets under a replacement transaction for each terminated Transaction. The Non-Defaulting Party is not required to enter into replacement transactions in order to make such determination.
11.7 If the Termination Amount is a positive number, the Defaulting Party must, within five Business Days of receipt of the notice given under Clause 11.2c), pay the Termination Amount to the Non-Defaulting Party. If the Termination Amount is a negative number, the Non-Defaulting Party must pay the absolute value of the Termination Amount to the Defaulting Party within ten days of the Non-Defaulting Party delivering notice of such amount to the Defaulting Party. Notwithstanding the foregoing, the Non-Defaulting Party is not required to pay the Termination Amount to the Defaulting Party until it receives confirmation, satisfactory in its reasonable discretion, that all other obligations of any kind of the Defaulting Party to make any payments to the Non-Defaulting Party or any of its Affiliates under this Agreement or any other agreement, instrument or commitment between the Defaulting Party and the Non-Defaulting Party or any of its Affiliates, that are Due as at the Early Termination Date, have been fully and finally satisfied.
11.8 The Parties acknowledge and agree that, in relation to the Transactions, each Party may have entered into related hedging contracts and that any losses incurred under or in connection with those hedging contracts are deemed to have been reasonably foreseeable by the Defaulting Party on the applicable Trade Date(s) and at the time of its default and/or at the time the relevant Default occurred. The Parties acknowledge and agree that under this Clause 6, the Non-Defaulting Party may recover from the Defaulting Party the losses incurred under or in connection with those hedging contracts.
11.9 The Termination Amount and any amount due under any Transaction bear interest from the due date to the date of actual payment (before and after any arbitral or court decision) at the lower of (x) the Interest Rate plus 3% and (y) the maximum rate permitted by applicable law.
11.10 Any amounts due hereunder may be converted by the Non-Defaulting Party into any currency in which any Due obligation is denominated, at the exchange rate at which the Non-Defaulting Party, acting reasonably and in good faith, would be able to acquire the relevant amount of the currency to be converted.
11.11 Any amount recoverable under this Clause 6 is a reasonable pre-estimate of loss and not a penalty. Such amount is payable for loss of bargain and loss of protection against future risk and, except as otherwise provided in this Agreement, neither Party is entitled to recover any additional damages as a result of the early termination of this Agreement and/or any Transaction.
12. Limitation of Liability
12.1 Without prejudice to Clause 12.3, if no remedy or measure of compensation is expressly provided for in these GTC for any breach of either Party’s obligations to the other under or in connection with this Agreement, then that Party’s liability to the other Party for such breach is limited solely to actual direct damages and, in no event, is either Party liable (except to the extent expressly provided for in these GTC) for loss of profits or other business interruption damages, or special, consequential, incidental, punitive, exemplary or indirect damages, in tort (including negligence), contract or otherwise, of any kind, arising out of or in any way related to the performance, suspension of performance, breach or termination of a Transaction and/or this Agreement. The Parties acknowledge the duty to mitigate damages under a Transaction and this Agreement.
12.2 In particular, and without limiting the generality of Clause 12.1, but without prejudice to Clause 12.3, the Seller is not liable (except to the extent expressly provided for in these GTC) for more than any amount by which the prevailing market price exceeds the price for the Goods to be Delivered under a Transaction, nor is it liable for any loss of profit or revenue, loss of use or increased operating costs of any equipment, deterioration of the Goods, cost of capital or modifications or replacement of the Goods, facilities or services, standstill costs, overhead costs or other losses resulting from the closure of any of the Buyer’s facilities, including, without limitation, claims by the Buyer’s customers for increased costs or losses, service interruption or supply failure.
12.3 Nothing in this Agreement has the effect of limiting, excluding or restricting the liability of a Party arising from its fraud. Any limitation, exclusion or restriction of the liability of either Party in this Agreement applies only to the extent permitted by applicable law.
13. Sanctions and Boycotts
13.1 Notwithstanding any provision to the contrary in this Agreement, nothing herein is intended, and nothing herein must be construed or understood as inducing or requiring Plasfer to act in any way (including refraining from taking any action in relation to a Transaction) that is or would be inconsistent with, penalised and/or prohibited under any applicable law, regulation, decree, ordinance, order, requirement, rule or requirement of the EU, any Member State, Switzerland, Singapore, the United Kingdom, the United Nations, the United Arab Emirates or the US applicable to the Parties relating to trade sanctions, foreign trade controls, export controls, non-proliferation, counter-terrorism, international boycotts and similar laws (the “Trade Restrictions”).
13.2 For the avoidance of doubt, Plasfer is not obliged to perform any obligation otherwise required by a Transaction, including, without limitation, the obligation to (a) perform, Deliver, accept Delivery, sell, purchase, pay or receive money from, to or through a person or entity, or (b) carry out any other acts, if doing so would violate, be inconsistent with, or expose Plasfer to punitive measures under, or cause Plasfer reasonably to fear that it will or may be exposed to punitive measures under, any Trade Restriction.
13.3 Where any performance by Plasfer would violate, be inconsistent with, or expose Plasfer to punitive measures under, or cause Plasfer reasonably to fear that it will or may be exposed to punitive measures under, any Trade Restriction, Plasfer must, as soon as reasonably possible, give written notice to the Counterparty of the foregoing, and thereupon is entitled, in its sole discretion, to:
a) immediately suspend the affected obligation (whether of payment or performance) until such time as Plasfer may, in its sole discretion, lawfully perform such obligation; and/or
b) where the inability to perform the obligation persists (or is reasonably expected to persist) until the end of the period for performance of obligations under a Transaction,
c) become entirely relieved of the affected obligation, provided that, where the relevant obligation relates to payment for Goods already Delivered, the affected payment obligation remains suspended (without prejudice to the accrual of any interest on an outstanding payment amount) until such time as Plasfer may lawfully resume payment; and/or
d) where the affected obligation is acceptance of a vessel, require the Counterparty, as the party responsible for nominating the vessel, to nominate a replacement vessel in accordance with this Agreement, in each case without any liability (including, without limitation, any damages for breach of the Transaction, penalties, costs, fees and expenses).
13.4 Nothing in this Clause must be construed as limiting or preventing the application, where available under the law governing a Transaction, of any doctrine analogous to the English Common Law doctrine of frustration.
13.5 The Parties mutually undertake, represent and warrant that they are not in breach of any Trade Restriction. This undertaking, representation and warranty is deemed to be a continuing condition of each Transaction and this Agreement.
14. Facilitation Payments and Anti-Corruption
14.1 Each Party represents and warrants to the other that neither it nor any of its Representatives has failed to comply with ABC Legislation in relation to this Agreement or the Transactions, or has taken any action that would expose the other Party to fines or penalties under such ABC Legislation.
14.2 Each Party must, and must procure that its Representatives, in performing this Agreement and the Transactions, comply with ABC Legislation and refrain from taking any action that would expose the other Party to fines or penalties under such ABC Legislation.
14.3 Without limiting the foregoing, neither Party must, and each Party must procure that none of its Representatives, in relation to the Agreement or the Transactions, directly or indirectly:
a) provide (or offer, promise or authorise the provision of) any financial or other advantage to:
i. any Representatives (or any family members of such Representatives) of any government, international public organisation or any department, agency or instrumentality of any government or international public organisation,
ii. any Representatives (or any family members of such Representatives) of any state-owned entity,
iii. any Representatives (or any family members of such Representatives) of a political party,
iv. any candidates (or any family members of such candidates) for political office or for any Representative role mentioned above, or
v. any other person at the request of, or for the benefit of, any of the persons and entities listed above; or
b) engage in any activity or conduct that violates (or could reasonably be expected to violate) ABC Legislation.
14.4 Each Party has established and must maintain policies and procedures designed to promote and achieve compliance with ABC Legislation.
14.5 Notwithstanding any provision to the contrary, Plasfer may terminate this Agreement and any Transactions with immediate effect by written notice to the Counterparty if, in its reasonable opinion, the Counterparty has breached any provision of this Clause.
14.6 For the purposes of this Clause:
(i) “ABC Legislation” means any legislation aimed at preventing and/or penalising any corrupt act, money laundering, corruption, trading in influence, bribery or terrorism and/or, more generally, offences against probity applicable at any time in: a. the jurisdictions where the Parties are registered, b. the jurisdictions where the Parties carry on their activities, c. the jurisdictions where the Agreement and the Transactions are performed, d. the EU and its Member States, e. Singapore, f. Switzerland, g. the United Kingdom, h. the United Arab Emirates, and i. the US, and any other applicable national and international legislation enacted to give effect to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or the United Nations Convention against Corruption.
(ii) “Affiliate” means, in relation to any person, a Subsidiary of that person, a Parent Company of that person or any other Subsidiary of that Parent Company.
(iii) “Parent Company” means, in relation to a company, any other company in relation to which it is a Subsidiary.
(iv) “Representative” means, in relation to a given person or body, any Affiliate, and any officer, delegate, agent, director, employee, consultant, other representative or person acting in an official capacity for, exercising a function for, or acting on behalf of, that person or body or Affiliate.
(v) “Subsidiary” means an entity over which a person has direct or indirect control or directly or indirectly holds more than 50% of the voting capital or similar ownership interest; control, for this purpose, means the power to direct the management and policies of the entity, whether through ownership of voting capital, by contract or otherwise.
15. Health, Safety, Environment, Human Rights and Communities
15.1 For the purposes of this Clause:
“HSEHRC Laws” means all health, safety, environment, human rights and community laws and regulations applicable in the jurisdiction(s) with which the Parties are required to comply for the purposes of these GTC.
“HSEHRC Permits” means any licence, authorisation, certification and/or other approval applicable and required under the relevant HSEHRC Laws to carry out operations and business.
“HSEHRC Claims” means any action or proceeding brought against a Party in relation to its breach of the HSEHRC Laws and/or the HSEHRC Permits.
15.2 Each Party represents, warrants and undertakes to:
a) Comply with applicable HSEHRC Laws; and obtain and ensure compliance with the terms and conditions of all HSEHRC Permits necessary; and
b) Ensure that systems are in place to manage personal safety, environmental protection and the safeguarding of potentially affected communities; and
c) Respect the human rights and diversity of employees and/or contractors, including non-discrimination, the prohibition of child and forced labour, slavery and human trafficking; and
d) Not tolerate any workplace harassment, physical or verbal abuse and, at a minimum, comply with legal requirements relating to wages, hours and working conditions.
15.3 Each Party must use reasonable efforts to comply with the high-level standards set out in the United Nations Guiding Principles on Business and Human Rights throughout its value chain, in a manner appropriate to its size and circumstances.
15.4 Each Party must promptly notify the other Party in writing of any material breach of any provision of this Clause and of any material HSEHRC Claims against it.
16. REACH
The Parties agree that each Transaction (unless otherwise agreed) has been entered into on the understanding that the sale, storage and transit of the Goods is at all times intended to fall within an exemption from REACH. The Seller must provide the Buyer, on request, with the information reasonably necessary for the Buyer to establish that such exemption applies, including information on the identification of substances in the Goods and any hazardous properties.
17. Telephone Recordings
For security reasons, the Parties acknowledge and consent that the Parties may electronically record telephone conversations between them, including with any of the employees, officers or agents of the other Party relating to the subject matter of these GTC. The Parties may use such recordings to resolve any disagreements between them, including producing such recordings as evidence in any arbitral or legal proceedings. Each Party agrees to notify its employees, officers, agents and any relevant third parties whose conversations may be recorded.
18. Data Protection
Each Party confirms that the processing of any personal data exchanged under this Agreement is carried out: (i) in compliance with any relevant data protection legislation that may be applicable (such as, by way of non-exclusive example, UAE Federal Decree-Law No. 45 of 2021 on the Protection of Personal Data (“PDPL”) and, where applicable to a Party, Regulation (EU) 2016/679 on the Protection of Natural Persons with regard to the Processing of Personal Data and on the Free Movement of such Data (“GDPR”)) and (ii) on the basis that neither Party is a processor (as defined in the applicable data protection legislation) of the other Party’s personal data.
19. Miscellaneous
19.1 No amendment, addition, modification, change or alteration to this Agreement or to any Transaction is enforceable unless documented by an amendment agreement signed by the authorised signatories of both Parties.
19.2 Without prejudice to Clause 6, the Buyer’s obligation to pay amounts that have become due hereunder survives termination of a Transaction and is not deemed satisfied until the total of the Seller’s invoice(s) is credited in full to the Seller’s bank account. Except as otherwise provided herein, nothing releases the Buyer from the obligation to pay the Purchase Amount for Goods Delivered, when due, as set out in a Confirmation.
19.3 Unless otherwise specified in a Confirmation, if the payment date for amounts due under any Transaction or this Agreement would otherwise fall on a day that is not a Business Day, payment must be made on the preceding Business Day. If the said payment date would otherwise fall on a Saturday, payment must be made on the preceding Business Day. If the said payment date would otherwise fall on a Sunday, payment must be made on the following Business Day.
19.4 A person who is not a party to this Agreement or to a Transaction has no right to enforce any of its terms.
19.5 The provisions of this Agreement and of any Transaction are severable and, if any part of this Agreement or of any Transaction is held to be legally invalid or unenforceable, the remainder of this Agreement and of the relevant Transaction(s) survives and remains in full force and effect.
19.6 Neither Party may disclose the terms of this Agreement or of any Transaction to any third party without the prior written consent of the other Party, except (i) to its Affiliates (as defined in Clause 14.6), (ii) to its professional advisers or financiers, (iii) as may be required or appropriate in response to any court order, subpoena or otherwise in connection with any litigation or to comply with any applicable law, order, regulation, judgment or accounting disclosure standard; provided that, in each case, each such recipient has been informed of this confidentiality obligation, (iv) as may be necessary for the practical performance of a Transaction or any Delivery under it, or (v) to price reporting agencies in relation to all details of any Transaction, but excluding the name and identity of Plasfer or the Counterparty, as applicable.
19.7 Except as provided herein, neither Party may assign any of its rights under this Agreement or any Transaction without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed, except that either Party may assign to an Affiliate, or to an entity in connection with the financing or proposed financing of all or part of that Party’s business, without such consent, provided that the assigning Party remains fully liable for all obligations arising hereunder and for any other liability resulting therefrom.
19.8 The Parties acknowledge and agree that these GTC and any Transaction may be entered into and evidenced by email or other agreed electronic means, and that no handwritten or electronic signature is required for the formation of a legally binding contract. Any reference to signature or execution in these GTC or in any Confirmation must be construed accordingly.
20. Notices
20.1 The contact details of each Party, as set out in each Confirmation, may be used for communications relating to this Agreement.
20.2 Any notice given under this Agreement by one Party to the other Party (“Recipient”) must be (a) delivered by hand, (b) sent by courier or (c) sent by email to the Recipient at the address specified for this purpose in Clause 20.1 or such other address or email address as the Recipient may specify from time to time. Notice details may be changed on seven (7) calendar days’ prior notice to the other Party.
20.3 Any notice given under this Agreement is deemed effective as set out in the following table, provided that, if any notice is deemed given after 4:00 p.m. on a Business Day in the place where such notice is deemed given, then such notice is deemed effective at 9:00 a.m. on the following Business Day in that place.
| Method of notice | Date on which the notice is effective |
|---|---|
| Delivered by hand: | the date on which the notice is delivered |
| Sent by courier: | the date on which the notice is received |
| Sent by email: | the date on which the notice is received |
21. Governing Law and Arbitration
21.1 This Agreement is governed by and construed in accordance with the laws of the United Arab Emirates. This Agreement and each Transaction are deemed to have been entered into in Dubai, United Arab Emirates.
21.2 Any and all claims, counterclaims, demands, causes of action, disputes, controversies and other matters in question arising out of or relating to this Agreement or any Transaction, or the alleged breach thereof, or otherwise relating to the subject matter of this Agreement or the relationship between the Parties created by any Transaction, including without limitation any question relating to their existence, validity or termination, must be referred to and finally resolved by: arbitration under the Arbitration Rules of the Dubai International Arbitration Centre (“DIAC”) (the “Rules”). The Rules are deemed incorporated by reference into this Clause 21.
21.3 The number of arbitrators is three, with each Party entitled to nominate one arbitrator. If a Party fails to nominate an arbitrator within 30 days of receiving notice of the nomination of an arbitrator by the other Party, that arbitrator is appointed by DIAC. The third arbitrator is the presiding arbitrator of the tribunal and is nominated by the other two arbitrators already nominated. If such third arbitrator is not nominated within 15 days of the date of nomination of the last-nominated arbitrator, the third arbitrator is appointed by DIAC.
21.4 The seat of the arbitration is the Dubai International Financial Centre (DIFC), Dubai, United Arab Emirates, where all hearings take place, unless otherwise agreed between the Parties. The language is English. The Parties agree that the decision of the arbitral tribunal is final and binding on the Parties. The Parties agree that the arbitration proceedings and any award remain confidential.
21.5 This arbitration agreement is governed by the laws of the United Arab Emirates.
21.6 Nothing in this Clause prevents either Party from seeking interim or similar provisional relief in any court of competent jurisdiction, nor does anything in this Clause prevent either Party from bringing an action to enforce a money judgment in any other jurisdiction.
21.7 The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply to this Agreement or to any Transaction.
Signed by the duly authorised representatives of the Parties on the dates specified below, with effect from the Effective Date.
Plasfer Global Resources – FZCO
Signature: _______________________
Name: _______________________
Title: _______________________
Date: _______________________
[Counterparty]
Signature: _______________________
Name: _______________________
Title: _______________________
Date: _______________________
ANNEX 1
Base Metal Purchase and Sale Confirmation
Date: […]
To: [Counterparty name] (“Counterparty”)
Attention: […]
From: [Plasfer Global Resources – FZCO]
Tel:
Email:
Ref.: Base Metal Purchase and Sale
Transaction No.:
The purpose of this confirmation letter (this “Confirmation”) is to confirm the terms and conditions of the base metal transaction entered into between us on the Trade Date specified below, under which the Seller agreed to sell and deliver and the Buyer agreed to buy and accept delivery of the Goods defined below (the “Transaction”). This Confirmation supplements, forms part of, incorporates by reference and is subject to Plasfer’s General Terms and Conditions for the Purchase and Sale of Base Metals, including the annexes thereto (“GTC”). This Confirmation and the GTC constitute the agreement between the Parties (the “Agreement”). All terms and conditions of the GTC, including the arbitration agreement, govern the Agreement, except as expressly amended in this Confirmation.
This Confirmation is provided for reference and evidentiary purposes only. The validity and enforceability of the Transaction and the arbitration agreement do not depend on the execution or return of this Confirmation. The Transaction is legally binding upon mutual confirmation of the trade summary or trade proposal by email or other agreed electronic means, in accordance with the GTC.
In the event of a conflict between the GTC and this Confirmation, the Confirmation prevails.
The terms of the Transaction agreed by the parties are as follows:
| Trade Date: | […] |
| Buyer: | […] |
| Seller: | […] |
| Goods: | [Metal, LME [Grade A Copper]] |
| Quality/Specification: | [Brand, Form, Grade] |
| Quantity/Weight: | […] Metric Tonnes +/- […]% |
| Unit Price: | [USD per MT] [Average for Month “M”] of the [Daily] [Spot] [Official Settlement, Closing] LME Price per MT for the Metal] |
| Quotational Period: | [M, M+1, M+2] |
| Payment Amount: | [Unit Price of Goods sold x Quantity/Weight sold] |
| Delivery Basis: | [In Warehouse [location/address]] [Incoterms [FOB, CIF, CFR, DDP etc. 2010 as supplemented by the Special Terms below] [+ specify Delivery Point, if applicable – e.g. CIP] |
| Delivery Date/Period: | […] |
| Payment Type/Payment Date: | Provisional Invoice (90%) to be issued […], and Final Invoice (10%) to be issued […] |
| Documents: | [LME Warrants] [Warrants / Warehouse Receipts] [Seller’s Invoice] [Provisional Invoice (90%) and Final Invoice (10%)] [Warehouse release confirmation] [3/3 original Bills of Lading] [Seller’s Weight Certificate(s)] [Certificate of analysis] [Certificate(s) of Origin] |
| Payment Details: | [Seller’s bank account details] |
| Other: | […] |
| Title and Risk: | […] |
| Special Terms: | […] |
No signature is required for the Transaction to be legally binding. The Transaction is effective upon mutual confirmation of the trade summary or trade proposal by email or other agreed electronic means.
We are pleased to have concluded this contract with you.
Yours faithfully
[Plasfer Global Resources – FZCO]
By…………………………
Name:
Authorised signatory
[Counterparty]
Signed and accepted
By:………………………..
Name:
Authorised signatory
Title………………………
ANNEX 2
DELIVERY BASES FOR PHYSICAL BASE METALS SOLD UNDER PLASFER’S GTC
Glossary of Delivery Bases
Each Transaction between the Parties includes delivery terms contained in one of the Delivery Bases set out below, supplemented as necessary in the Confirmation for that Transaction under the headings “Delivery” and “Delivery Point”. The Delivery Bases are as follows:
Delivery In Warehouse (WHS)
Delivery Carriage and Insurance Paid (CIP)
Delivery CIF Liner Terms (CIF LT)
Delivery Cost, Insurance and Freight (CIF)
Delivery Free Carrier (FCA)
Delivery Free On Board (FOB)
Delivered Duty Unpaid (DDU)
Delivered Duty Paid (DDP)
Delivered At Frontier (DAF)
A final Clause J. applies to all Delivery Bases.
Capitalised terms not defined in these Delivery Bases each have the meaning given to them in the Confirmation and/or the GTC, as applicable.
This document is a translated and jurisdiction-adapted version of Plasfer’s General Terms and Conditions for the Purchase and Sale of Base Metals. Plasfer Global Resources – FZCO’s trade licence number will be confirmed and inserted once available. As with any substantial legal and jurisdictional change, Plasfer recommends this document be reviewed by qualified UAE legal counsel before being relied upon in a live Transaction.