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CONTRACT FOR THE SALES AND PURCHASE OF
INDONESIAN STEAM COAL
No. …..Coal 63-61/XX-XMN/XI/2010
Company : PT. Surya Timur Nusantara
Tel /Fax : +62 21 XXXXXXXX / +62 21 XXXXXXXX
Contact Person :
Mobile : +62812…….
Tel /Fax :
Contact Person :
This contractual agreement is made on the 12th day of November 2010 between PT. Surya Timur Nusantara. ( herein after called the Seller) and XXXXXXXXXXXXXX. ( herein after called the Buyer).
Whereas the seller is in a position to supply the Steaming Coal of Indonesia to the buyer with the following terms and conditions hereby agreed by and between both parties:
1． Product and Origin
1.1 Steam coal, origin is Indonesia.
1.3 Load port
Main Port/Anchorage of South Kalimantan, Indonesia at sellers’ option.
1.4 Destination port:
Port of Xiamen, Fujian, China.
2．Product Quality and Specifications
2.1 The Seller guarantees that the Product to be supplied will conform to the Specifications as stated in Clause 2.2. The Product shall be delivered and analyzed according to ISO Standards and shall confirm the specifications before Loading. The description of all percentages is referred to the percentage weight.
2.2 There shall be no stone, coke and other non-coal ingredients in the Product. Otherwise, the Buyer has the full right to refuse receiving the product and all the losses shall be in the account of the Seller.
Item Guarantee Rejection
Gross Calorie Value (Air Dried Basis) 6300 6100
Total Moisture (as received basis)
17 % >18%
Inherent Moisture (air dried basis)
Ash (air dried basis)
Volatile Matter (air dried basis)
35% - 45% Approx
Total Sulfur (air dried basis)
Net Calorific Value
(as received basis) 5500 kcal/kg < 5300kcal/kg
HGI 35 – 55 Approx
Size 0 - 50mm (90%)
3. Rejection for the Quality
3.1 For Net Calorific Value (ARB)
This Unit Price of the product is based on contractual specification Net Calorific Value 5500Kcal/kg (ARB)= If the Actual Net Calorific Value inspected by the independent inspection organization falls below, the right of Rejection is granted to the Buyer.
If the Actual Net Calorific Value exceeds 5500Kcal/kg (ARB), the Unit Price shall be added by USD1.00/MT for every 100Kcal/kg difference on a pro rata basis as bonus price.
If the actual Net calorific value is lower than 5500Kcal/kg (ARB), the unit price shall be deducted by USD1.00/MT for every 100Kcal/kg.
There will be no further bonus price if the Actual Net Calorific Value exceeds 5700Kcal/kg (ARB).
3.2 For Total Moisture (ARB)
In the event the Total Moisture exceeds 17%, then weight shown on Invoice will be formulated as follows:
Weight shown on Invoice = BL Weight × [(100 – Actual TM (ARB))]/ (100-17)
The cargo will be refused if Total Moisture (ARB) exceeds 18%.
3.3 For Total Sulfur (ADB)
The right of Rejection is granted to the Buyer if sulfur content in the product inspected by the independent inspection organization is greater than 1.0%.
3.4 For Ash content (ADB)
The right of Rejection is granted to the Buyer if the ash content in the Product inspected by the independent inspection organization is in excess of 16% by weight.
4. Product Quantity & Price
Quantity: The first month trial Shipment 40,000 MT ± 10% and quality to conform standard after, in begin of Second month delivery quantity for 40,000 MT ± 10 %, 13 Months for total Contract Quantity of approximately 520,000 MT±10% .
The monthly shipment will be shipped as per contractual shipment schedule and the amount to execute. And each shipment shall arrive at destination port within 30 days after receiving Buyer’s valid L/C.
The price shall be adjusted every three month base to the market price mutually agreed by both parties.
4.1 Shipload: 40,000 Mts per shipload ±10% at Buyer’s option.
Price: USD 73.00/metric ton FOB Mother Vessel South Kalimantan, Indonesia.
First shipment will be shipped out on November ,2010, subject to the receipt of buyer’s workable L/C 35 days before shipment, following shipment as per monthly schedule and subject to receipt of buyer L/C 30 days before each shipment.
6. Payment terms :
6.1 PERFORMANCE BOND AND LETTER OF CREDIT
Within Five (5) banking working days after the Contract signed, Buyer send the bank approbate LC（SWIFT MT700）application draft to give Seller confirm. Seller will issue the 2% Performance Bond to Buyer issued by Bank after confirmed the application.
Within Five (5) banking working days after receiving Seller's operative Performance Bond, the buyer international Bank shall issue operative Irrevocable, Non-Transferable at sight Documentary Letter of Credit in monthly goods payment Lump sum of US Dollars Sufficient to cover 100% contract value, Letter of Credit Payable at Sight in beneficiary of Seller is available. Payable 95% after presentation of BILL of Shipment. At the arrival of the goods of discharging port, Within 15 working days the Balance of Shipment Value 5% will be paid by LC after clarifying the issued by CIQ certification at the discharging port.
If the CIQ within 15 working days can't inspection completion and will inspection certificate of sends to the issuing LC bank payment .The shall be according to loading port be at CCIC issuing Weight and Quality a inspection certificate shall as final compute payment result.
6.2 Should the Seller greatly breach this Contract; the Performance Bond (PB) will be paid to the Buyer. If the Seller does not provide the goods according to this Contract, the Buyer has the right to keep the Performance Guarantee as compensation. If the Seller cannot finish the shipment as per this Contract, the Buyer reserves the right to expropriate the PB and suspend the Contract. In this case, the Seller shall, within Two (2) banking days after the receipt of Buyer’s request of L/C cancellation, inform the Seller’s bank to send the L/C issuing bank a swift letter agreeing to cancel the L/C to assure the L/C cancellation, otherwise the Seller shall pay an extra Two percent (2%) of the total cargo value to the Buyer other than above mentioned compensation.
6.3 All bank charges of the issuing bank are for the account of Buyer. All bank charges
outside the issuing bank including reimbursement charges are for the account of the Seller.
The L/C should be valid for 45 days from the date of credit issuing.
The L/C shall incorporate the following:
a. Charter party B/L & Third Party Documents acceptable.
b. Partial shipment allowed.
c. Transshipment not allowed
d. Available with any bank by negotiation.
e. T/T reimburse.
6.4 For the payment of each shipment value, the L/C shall be payable by opening bank against Seller’s sight draft. For the 95% amount of the value of shipment accompanied by full set of the “DOCUMENT FOR PAYMENT” 7.1-7.5, and the rest 5% value of the cargo will be issued by full set of the “DOCUMENT FOR PAYMENT” 7.6.
Beneficiary of the L/C: << 信用证受益人>>
7. DOCUMENT FOR PAYMENT
The documents should be presented to negotiate on Bank for 95% Provisional payment as follows:
7.1 Complete set 3/3 of “Clean on Board” shipped Bill(s) of Lading, consignee “TO ORDER” blank endorsed marked “Freight prepaid” and notifying “XXXXXXXXXXXXXX.”
7.2 Signed Provisional Invoice in 3 (three) originals and 3 (three) copies indicating the contract number, L/C number, and value of goods and name of carrying vessel. The Invoice value shall be based upon Result of CCIC Weight Analysis certificate minus excess moisture.
7.3 Certificate of Quality and Certificate of Weight of contracted goods in 3 (three) originals and 3 (three) copies issued by CCIC (Indonesia). The Certificate of Quality to show actual results of the test of chemical composition and all other tests as called for in this contract.
7.4 Certificate of Origin in 1 (one) original and 3 (three) copies to be endorsed / issued by the Indonesia Chamber of Commerce or equivalent authority and detailing loaded quantity, commodity, carrying vessel and suppliers name and address, consignee showing “×××××× Mining Co., Ltd”.
7.5 Beneficiary’s certificate certifying that Beneficiary sent to Buyer by fax 1 (one) set of Non-negotiable documents including B/L, Provisional Invoice, Analysis Certificate, Weight Certificate and Certificate of Origin within 5 (five) working days after B/L date.
7.6 Insurance Certificate covering all risk for 110% Invoice Value in favour of the Buyer: One (1) Original and One (1) Copy
7.7 DOCUMENTS REQUIRED FOR FINAL 5% PAYMENT
The balance 5% (five percent) of the cargo value due to seller after provisional payment shall be made under the same L/C against the final invoice delivered to the seller within the L/C validity date. This seller's final invoice is to be basis on the final balanced payment of the inspection results of CIQ at discharging port.
1、 Final invoice in 3 (three) originals and 3 (three) copies.
2、Inspection Certificate of Quality issued by CIQ in one photocopy.
3、Inspection Certificate of Weight issued by CIQ in one photocopy.
8． Inspections of Quality and Weight
8.1 The Seller shall arrange and pay for CCIC/SUCOFINDO of Indonesia to ascertain the weight and issue a Certificate of Weight based on the determination of mass (weight) by survey of the Designated Vessel’s draft and utilizing vessel immersion scale at the Loading Port in accordance with the standard code of practice.
8.2 The CCIC of Indonesia will issue Quality and Weight Certificate to prove the Cargo substantially in accordance with the specifications set forth in Clause Quality (Article 2.2) and Weight of this Contract. The Quality and Weight Certificate issued at loading port CCIC Inspections will the be primary basis for provisioned payment 95%. The CIQ at the discharge port inspection result shall be as final report of assay and settle the final payment.
8.3 The CIQ inspection result at discharging port should be final, Any adjustments to the price last
based on the of shall be settled the according to Article 2 and 3.
8.4 Seller shall use its best endeavors to ensure that each shipment meets the element of quality listed in Clause 2.1 In the event that the quality of any shipment of Coal as determined by analysis of the samples taken during the course of loading indicates the final analysis of the shipment is likely to exceed the elements of quality listed in Clause 2.1, the seller shall endeavor to remedy the problem.
8.5 If coal quality reach rejection standards, Seller and Buyer shall negotiate in good faith to agree an equitable settlement for such shipment (which may include a reduction in price), in case such settlement fails to be achieved within 7 days from the date when the coal is proved to reach rejection standards, in which case, the Purchaser shall be entitled to purchase coal with the same quality and quantity from other seller, and the Seller shall be liable to the Buyer for the additional cost thus incurred and other loss incurred by the Buyer.
8.6 Buy may at Buyer’s expenses, have its representative be present during the draft survey at loading port.
9: ADVISE OF SHIPMENT AND DELIVERY 交货
9.1 The Seller warrants performing delivery of the transacted Commodity on CFR inside customs — outturn quality and quantity basis, to the Buyer’s designated discharging port of China.
9.2 Seller shall ensure timely arrival of the ship to the discharging port in conformity with the approved schedule.
9.5 The vessel’s Master shall advise the Buyer and Ship Owner’s Agent at the discharging port, the ship’s ETA Seventy-two (72) hours before her arrival, her name, tonnage, flag, draughts on board quantities, and actual time of arrival 48, 24, and 12 hours before her arrival to the discharging port.
9.6 Within Seventy-two (72) hours after the vessel departure from loading port, the Seller’s shipping agent shall advise the Buyer by way of telex/cable/fax (Fax and E-mail) indicating the vessel sailing date, name of steamship company, tonnage, age of the vessel, the flags of the vessel, ocean Bill of Lading number, Contract number, net quantity loaded, name of commodity and estimated time of arrival (ETA).
A) Notice: The Seller will instruct the Vessel’s Master to send to the Buyer or his designated Custom Broker an ETA notices every 48 / 24 / 12 hours prior to arrival at the discharging port.
B) Details of Loading Advice: Within Forty-eight (48) hours after vessel sailing from the loading port, the Vessel’s Master shall advise the Buyer of all relevant details concerning the shipment such as gross and net quantity in Metric Tone, the full specification of the Goods, the date of the B/L, and the date of sailing, ETA at the discharging port, the name of the vessel, flag and all other pertinent and customary information. Suitable advance notice by fax as mutually agreed between Buyer and Seller which gives Buyer time to receive each said shipment.
Notice of readiness (NOR) shall be given, on ship’s arrival at the Buyer’s designated discharging port(s), by the ship’s Master to Buyer and/or Agent, by radio, cable or by hand, at any time including Saturdays, Sundays and holidays.
Turn time Forty-eight (48) hours from (NOR) tendered, unless discharging operation started earlier when the actual time used to count as lay time.
Time spent for customs/health/port authority formalities, pilot age from anchorage area to berth, mooring, or crossing river mouth, shall not to count as lay time.
9.11 DEMURRAGE AND DISPATCH MONEY
Rates of demurrage per day or pro-rata for all time lost and dispatch money per day or pro-rata for lay time saved at the discharging unloading port shall be USD 18, 000 per day or pro rata, for all time lost. Dispatch will be half of Demurrage rate per day or pro rata, for lay time saved. Buyer and Seller shall calculate lay time within Seven (7) days after discharging cargos. Settlement of demurrage and dispatch money shall be made in U.S. dollar within Seven (7) working days after confirmation of the demurrage and/or dispatch calculation.
The disastrous weather (heavy rains, floods, frosts, strong winds, fog etc.) and other natural reasons, if any, cause the delaying of discharging, this process shall not be calculated in the discharging days.
The discharging rate shall be 12,000MT PWWD SHINC.
11: TRANSFER OF TITLE AND RISK AND INSURANCE
11.1 The title with respect to each shipment shall pass from Seller to the Buyers when Seller receives reimbursement of the proceeds from the issuing bank through the negotiating bank against the related shipping documents as set forth in Clause 7 after completion of loading on board, the vessel at loading port, with effect retrospective to the time of delivery of coal.
11.2 All risk of loss, damage or destruction respective the coal delivered shall pass to the Buyer at the time of discharging of the coal from the loading devices in to the vessel at the loading port/anchorage point.
11.3The buyer bears the expense to procure a policy with a first class Marine Insurance Institute to cover ONE HUNDRED and TEN PERCENT (110%) of the value of cargo. The insurance policy will cover all risk loss、damage to the said cargo, including war, hijacking, explosion, etc, The policy shall be effective when the cargo is loaded.
12: LOSS OF CARGO
12.1 In the event of partial loss of cargo after completion of loading onto the vessel and before completion of discharging port, the discharging port inspection results will be the final.
12.2 In the event of a total loss of cargo after completion of loading onto the vessel and before completion of discharge at the discharging port(s), Buyer shall make final payment to Seller on the basis of the analysis at the loading port as set forth and quantity as manifested on the Bill(s) of Lading issued after completion of loading at the loading port as set forth in Clause 7.
13: FORCE MAJEURE
A) Force Majeure as used herein shall mean any cause or condition (whether or not similar to those hereinafter enumerated) beyond the control of the party affected thereby which wholly or partially prevents the performance except payment by the said party of its obligations hereunder including but not limited to: act of God, act of a public enemy, war (declared or undeclared ), civil war, sabotage, revolution, civil disturbance, epidemic, cyclone, tidal wave, landslide, earthquake, flood, storm, fire; adverse weather condition; expropriation; nationalization , act of eminent domain, insurrections; mobs; terrorism; breakdown of or damage to mine, plant, port facilities and Buyer’s facilities (including affiliated companies facilities), labor stoppage, lockouts, slowdowns strikes or disputes; interruptions of transportations, order or acts of civil authorities, necessary for compliance with an applicable law regulation ordinance or resolution or order of court of administrative authority; embargoes; blockade, any restrictions upon, delays in receiving or failures to receive any permits licenses, or approvals from any government agency; explosions, breakage or accident for facilities; and impossibility of obtaining or delay in obtaining necessary equipment, materials or supplies. No parts shall, however, be relieved of liability for failure of performance if such failure is due to causes arising out of its own negligence or to causes which, at reasonable costs, it could, but falls to, remove or remedy with reasonable dispatch. Minor equipment failures which do not substantially impaired the ability to perform shall not be deemed a Force Majeure occurrence.
B) Any waiver/extension of time in respect of the delivery of any installment or part of the goods shall not be deemed to be waiver/extension of time in respect of the remaining deliveries. If operation of such circumstances exceeds Three (3) months, either party will have the right to refuse further performance of the contract in which case neither party shall have the right to claim eventual damages. The party which is unable to fulfill its obligations under the present Contract must within Fifteen (15) days of occurrence of any the causes mentioned in this clause inform the other party of the existence of the circumstances preventing the performance of the Contact. Certificate issued by a Chamber of Commerce or any other competent authority connected with the cause in the country of Seller or Buyer shall be sufficient proof of the existence of the above circumstances and their duration.
13.2 EFFECT OF FORCE MAJEURE
A) The Party affected of the termination of Contract caused to such Force Majeure. by Force Majeure shall give prompt written notice to the other party, explaining the particulars thereof in reasonable details. The obligations of the party giving such notice shall be excused to the extern made necessary by such Force Majeure and during the continuance of such Force Majeure and said party shall incur no liability by reason of its failure to perform the obligations to excused; provided, however that the party giving such notice shall use its best efforts to eliminate such Force Majeure as soon as end to the extend reasonably practicable (talking taking into account the costs involved). The affected party shall give prompt written notice，
B) If Buyer is the party affected by the Force Majeure conditions, Buyer shall nevertheless be obligated to accept and pay for any Goods which at the time of commencement of Force Majeure condition is being loaded or has been loaded into a vessel.
13.3 ALLOCATION OF EFFECT
A) Seller shall have the obligation to allocate any Force Majeure affected on Seller’s ability to produce and ship goods by reducing shipments to Buyer’s and other purchaser’s annual quantities under the respective sales agreement.
B) Wholly excused for continuous duration of more than Sixty (60) days, upon written notice to the other party given at any time during the period of Force Majeure condition, the obligations of the unaffected party hereto shall be discharged as to deliveries (or acceptance) which would otherwise have been made during said period. If such Force Majeure condition continues for 180 days, either party may, by written notice to the other, terminate this Contract Agreement in its entirety and both Parties shall be released from further obligations except for obligation accrued prior to such termination, effective as of receipt of notice of termination.
14 : CONFIDENTIALITY AND NON-CIRCUMVENTION AGREEMENT
14.1 The undersigned Parties do hereby accept and agree to the provisions of the International Chamber of Commerce for Non-Circumvention and Non-Disclosure with regards to all and anyone of the Parties in this transaction.
14.2 To include but not limited to the Buyer, Seller, their agents, mandates, nominees, assignees, and all intermediaries party to this Agreement/Contract.
14.3 This Contract Agreement shall be kept in the strictest confidence between them for at least Five (5) years from the date hereof.
14.4 Neither party is entitled to transfer their rights and/or obligations under this Contract to a third party with exceptions of Financial Agent and facilitator of the Seller/Buyer, as it is provided in appendix of the present Contract, and except where the third party is an entity whose majority ownership is the same as the original ownership Contract partner. In any case the transferring party will notify the other party in writing (Including Telex). After signing the present Contract, all previous negotiations and correspondence between the Parties in this connection will be considered null and void.
15 : CLAIMS
15.1 Any claims that either party may have, due to an occurrence, has to be submitted to the other party with in a period of Two (2) months from the date of that occurrence
15.2 In the event that the quality of any one of the delivered batches fails to comply with the contractual specification, then the Buyer shall have the option to accept the said batch at a lower price being negotiated and accepted by the Buyer, prior to the commencement of the discharge operations.
15.3 If within Fifteen (15) calendar days from date of the Inspection Certificate of Quality/Weight issued by CIQ at the discharging port of vessel, the Buyer fails to inform the Seller confirming the non-compliance, the commodity will be deemed to have been accepted by the Buyer, and the Seller will accept no claim.
15.4 All claims will be executed in writing and both parties agree to acknowledge such claims by written acceptance thereof.
15.5 Seller shall be responsible for all legal cost in the event Seller cannot perform or continue after official legal this Contract is signed.
Subject to clause 13 herein, in the event failure by the Seller or Buyer to comply with any of the obligation assumed under this Contract, shall entitle the other party, without prejudice to any other or recourses available to it, to consider such failure as breach of this Contract and to terminate the same, or to unilaterally suspend its performance until such failure is corrected, and in both cases, may claim direct damages for the breach of this Contract.
17 : NOTICE
All notices, requests, demands, and other communications hereunder shall be in writing, and shall be deemed to have been duly given upon delivery to the Party to be notified if delivered by Personnel or registered airmail, or at the date of dispatch for notices by telex, facsimile, cable or radio unless otherwise expressly provided for on this Contract. The address or facsimile number may be changed from time to time; such changes are to be notified in writing.
18.1 All disputes arising in connection with the present Contract shall be settled in an amicable way firstly. Should the parties reach no agreement, and then the case shall be brought for final settlement under the rules of conciliation and arbitration of the International Chamber of Commerce in Beijing,
19: VALIDATION AND ALTERATION
19.1 This Contract shall become effective when the duly authorized representatives of Seller and Buyer sign thereon. This Contract agreement is invalid if it is not signed and sealed by the Buyer and Seller and mutually exchanged within seven (7) calendar days from the date of issue.
19.2 Any change, modification in or addition to the terms & conditions of this Contract shall become effective when confirmed by both Seller and Buyer in writing.
19.3 The Quantity as set forth of this Contract is temporary. The accurate shipped quantity will be based on the "Charter Party" confirmation by the Buyer. The quantity stipulated in L/C shall be as final and for settlement of the final payment.
20 : ADDITIONAL CONDITIONS
20.1 The Seller must obtain at his own risk and expenses any export licenses or other official authorization, notwithstanding that the same arises from a change in legislation after this Contract.
20.2 The Buyer must obtain at his own risk and expenses any import licenses or other official authorization notwithstanding that the same arises from a change in legislation after this Contract.
20.3 Buyer and Seller mutually warrants that it has exerted and shall continue to exert its best efforts to avoid any action, which might be in any manner detrimental to both interest in the negotiation, execution and performance of this contract.
20.4 The parties hereby agree that all terms, which are not specifically confirmed and agreed upon in this Contract, have to be referred to the general rules of the ICC INCOTERMS Edition 2000 with latest amendments.
20.5 Any notice given by one Party to the other shall be in the Chinese language or English language and sent by facsimile or email. Any notice sent by facsimile or email shall be deemed received on the day of transmission.
20.6 Neither party is entitled to transfer their rights and/or obligations under this contract to a third party with exceptions of Financial Agent and facilitator of the Seller/Buyer, as it is provided in appendix of the present Contract, and except where the third party is an entity whose majority ownership is the same as the original ownership Contract partner.
20.7 Insurance to be arranged and borne by the buyer.
20.8 All taxes, port tax ,duties, levies, dues, etc, of the Coal loaded to the vessel in the loading port would be Seller’s account whereas those imposed in the country out side of the loading country would be Buyer’s account.
21 : GENERAL
21.1 This Contract agreement contains the entire understanding between the parties with respect to the transactions contemplated hereby and can only be amended by a written agreement. Any prior agreement, written or verbal, is deemed merged herein and shall be superseded by this Contract agreement.
21.2 The article and other headings in this Contract agreement are for convenience only and shall not be interpreted in any way to limit or change the subject matter of this Contract agreement.
21.3 All signed appendices, annexes and supplements shall constitute an integral part of the present Contract.
22.4 Conditions that have not been specified in the present Contract shall be governed by INCOTERMS and subsequent amendments related to CFR basis to discharging port.
21.5 EDT (Electronic document transmission) shall be deemed to be valid and enforceable in respect of the provisions of this Contract. Either party shall be in a position to request for a hard copy of any previous electronic transmitted document.
21.6 Both parties agree that the signed and sealed fax or EDT copies of the Contract are fully binding and enforceable until the hard copy of Contract will be exchanged courier.
21.7 All written communication relevant to this Contract will be using the English language.
21.8 Grammatical mistakes, typing errors, if any, shall not be regarded as contradictions.
21.9 The information contained herein shall be kept confidential, and shall not be subsequently disclosed to third parties or reproduced in any way, except to third parties who are necessary to the implementation of the Contract.
22 : BANKING DETAILS
Buyer bank information:
Name of bank
Seller bank information:
Name of bank
IN WITNESS whereof Buyer and Seller hereto have executed this instrument in duplicate on the basis date first herein above has written tow copy of each of them to be retained by respective party in this Contact.
Signature(s) (签署)： Signature(s) (签署)：
Date(日期): Nov.12.2010 Date(日期): Nov.12.2010
Seller’s witness Buyer’s witness
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