“Affiliate(s)” means any company or legal entity which controls a Party, or is controlled by a Party, or which is controlled by an entity which controls a Party. In the case of SOLEVO, references to “Affiliates” shall be expressly restricted to the SOLEVOSOLEVO Entities (as defined herein after.
“Associated Contract” means, exclusive of the Contract, any other contract(s) concluded between the Parties and or their Affiliates;
“Buyer” means the Party who contracts to buy the Products from the Seller (Buyer may be either SOLEVO or the Counterparty). Buyer also includes any receiving party nominated by the Buyer;
“Contract”, and any derivation thereof (within context), means these GTCs together with (i) any Contract Confirmation or, in the absence of a Contract Confirmation, (ii) any terms agreed between the Parties as may be ascertainable from evidence. Once a Contract Confirmation has been issued by SOLEVO the term Contract shall be limited to the Contract Confirmation, any relevant SOLEVO Shipping Terms and these GTCs, unless otherwise agreed by the Parties in writing.
“Contract Confirmation” means the written document, sent by SOLEVO to the Buyer, confirming the agreement reached between the Parties in respect of any Contract;
“Control”, means the ownership directly or indirectly of more than fifty (50) percent of the voting rights in a company or other legal entity.
“Counterparty” means any contractual counterparty who has concluded a Contract with SOLEVO;
“Delivery”, and any derivation thereof (within context), means the transfer of the Products from the Seller to the Buyer in accordance with the contractual Incoterm. For delivery of Products in warehouse delivery shall occur on the date of the Contract;
“General Terms and Conditions” (“GTCs”) means these General Terms and Conditions of sale and purchase;
“Incoterm(s)” means the International Chamber of Commerce Commercial Terms 2010;
“SOLEVO” means SOLEVO Holding B.V. or any of its Affiliates;
“SOLEVO Entities” (individually an “SOLEVO Entity”) means SOLEVO Holding B.V. and its Affiliates, but excluding any entities outside of the “SOLEVO Group”, which for the purposes of these GTCs comprises only Affiliates directly or indirectly controlled (as defined above) by SOLEVO Holding B.V., but expressly excludes other entities controlling SOLEVO Holding B.V..
“Liability” means any liability, indemnity, cost, damage, loss, charge, expense, penalty, compensation, or other similar burden (inclusive of applicable interest), born by either Party, arising under the Contract, Regulation, at law, or otherwise;
“L/C” means an irrevocable documentary letter of credit or standby letter of credit opened with, or confirmed by, a first class international bank acceptable to SOLEVO, in a form in all respects acceptable to SOLEVO;
“Party” means SOLEVO or any individual counterparty;
“Parties” means SOLEVO and any counterparty;
“Product(s)” means the product as agreed in the Contract;
“Regulation(s)” means any applicable laws, statutes, statutory instruments, rules, regulations, sanctions, boycotts, embargoes, directives or decrees of any state (inclusive of the European Union, and the United Nations), government, instrument of government or public authority and/or, if the context permits, any agreements, concessions and arrangements with any government, instrument of government or public authority;
“Seller” means the Party who contracts to sell the Products to the Buyer (Seller may be either SOLEVO or the Counterparty).
2 SCOPE OF APPLICATION
Unless otherwise expressly agreed these General Terms and Conditions apply exclusively to, and are incorporated by reference into, all Contracts for the purchase and sale of Products by SOLEVO whether such Contracts are concluded orally, in writing, or otherwise. Any contradictory and/or supplementary general conditions shall not apply and are expressly excluded, even in the event that (i) SOLEVO does not expressly object to such conditions, or (ii) if SOLEVO fulfills its obligations unconditionally, in awareness of the contrary or variant general conditions.
These GTCs are intended to be supplemented by a Contract Confirmation. In the event of conflict, ambiguity, or inconsistency between the provisions of the GTCs and the Contract Confirmation, the provisions of the Contract Confirmation shall prevail. In the absence of a Contract Confirmation the Contract shall comprise the GTCs and any other agreed terms, as ascertainable by evidence, or otherwise.
Without limitation, tendering an offer for, placing an order for, accepting an order for, or making or accepting delivery of, Products shall be construed as an acknowledgement and acceptance of these GTCs.
These GTCs apply to all contracts of sale or purchase concluded between SOLEVO and any Counterparty and/or the Counterparty’s Affiliates.
No variation of these General Terms and Conditions shall bind SOLEVO unless agreed in writing by an authorised representative of SOLEVO.
Price shall be as set out in the Contract Confirmation, or as otherwise agreed.
Save as agreed, the price shall not be subject to any additional change, for whatever reason, including, but not limited to market price events, whether foreseen or unforeseen.
Should any more extensive or new obligation of any kind, affecting the terms of the Contract, be imposed on SOLEVO through Regulation in the country of origin or destination for the Product, or in the Counterparty’s registered jurisdiction, after the conclusion of the Contract, any consequences and additional Liability arising from the above referenced Regulation shall form part of the Contract and shall be assumed by the Counterparty.
Parties shall not be obliged to perform any Contract at a price based on a manifest typing or clerical error.
4 DELIVERY, TITLE AND RISK
Save where specifically provided to the contrary, all trade terms used in the agreement will be governed by and interpreted in accordance with Incoterms. In the event of any discrepancy or inconsistency between Incoterms and the Contract the terms of the Contract shall prevail.
Unless otherwise agreed, title to the Product and/or documents supplied by Seller to Buyer or to Buyer’s agent shall remain the property of Seller until the contractually agreed payment (or first provisional payment) has been received by Seller in full.
Transfer of risk from Seller to Buyer shall be on Delivery in accordance with the relevant Incoterm.
5 QUANTITY AND QUALITY
Unless otherwise stated in the Contract the bill of lading, weight certificate, warehouse weights, or other weight documentation, whichever is applicable, shall be final and binding.
The Contract weight shall include a tolerance of +/- 2%, or another tolerance value as agreed between the Parties (the “Tolerance”). If the Delivered weight is less than the Contract weight, and outside of the Tolerance, then Buyer shall accept the Product and may recover from the Seller, subject to limitation as set out in Clause 14, any Liability Buyer incurs arising out of the short delivery. If the Delivered weight exceeds the Contract weight, and is outside of the Tolerance, then Buyer may reject or accept any quantity of Product in excess of the Contract weight plus Tolerance.
If Buyer disagrees with the weight determined in accordance with the Contract it shall give notice in writing to the Seller within twenty (20) days of discharge, or the arrival of the Products at their final Contract destination.
Quality determination shall be as agreed in the Contract. If the Delivered Product is not of the Contract description or quality, Buyer shall issue a notice to Seller setting out their quality claim within twenty (20) days of discharge, or the arrival of the Products at their final Contract destination.
6 QUANTITY AND QUALITY CLAIMS
Upon receipt of a quantity or quality claim a disagreement shall be deemed to have arisen which shall be resolved in accordance with this clause.
In the event of a dispute arising as to the quality, condition description or quantity/weight of the Product Seller and Buyer shall mutually nominate, within five (5) business days of notice of a dispute being given, an independent surveyor to carry out an independent inspection of the Product.
The nominated surveyor shall inspect, analyse and weigh the Product delivered (as appropriate) in accordance with such methods agreed by the Parties or deemed by the surveyor to be the standard industry practice.
The surveyor shall record its findings as to the Delivered weight and/or Delivered quality in a written report and, in respect of quality or condition issues it shall, if so requested by both Parties, determine an allowance in respect of any quality/condition deviations from the Contract. The surveyors findings, as set out in the report, shall be final, conclusive and binding on the Parties as to the delivered quantity and/or delivered quality. The costs of the surveyor shall be paid jointly by the Parties.
7 PAYMENT AND CREDIT SUPPORT
Due and timely payment is a condition of the Contract.
Payment obligations which arise under Contract shall be made against presentation of a commercial invoice concurrent with any agreed documents contractually required to affect payment. Payment shall be settled by the Party obligated to pay in accordance with the Contract.
Payment under the Contract shall be in compliance with the currency, form and conditions of payment specified in the Contract, without adjustments, discounts, deductions, set-off, or withholdings of any kind.
The Seller may by written notice to the Buyer designate replacement account details for the purposes of making payment under its Contract.
If payment is agreed by L/C then such L/C shall be in place on or before the date agreed between the Parties and if no such date is agreed then 10 (ten) days prior to the start of the Contractual shipment period. The L/C shall be for an amount sufficient to cover the mean price under the Contract plus 10 (ten) percent. All L/C charges are for the account of the Buyer. The L/C shall operate in accordance with its terms but no term within the L/C shall operate to vary the terms of the Contract unless expressly agreed by the Parties in writing.
If SOLEVO is the Seller, and at any time during the term of the Contract the market value of the Products has decreased or increased by more than 20% from the agreed Contract price, or in the reasonable opinion of SOLEVO, sufficient credit for the Contract (or any other Associated Contract) has not been established, or if SOLEVO reasonably doubts the due performance of the Contract (or any other Associated Contract) inclusive of any demurrage obligations, then SOLEVO may upon 2 (two) Geneva banking days’ notice to the Counterparty change the terms of payment to require the Counterparty to provide satisfactory credit support and/or require satisfactory security (“Credit Support”) as a condition precedent to performance by the SOLEVO under Contract, including without limitation requiring an advance payment, a deposit, an executed and enforceable parental guarantee in SOLEVO’s wording, a L/C, or a bank guarantee. In the event the Counterparty fails to provide timely Credit Support SOLEVO shall have no obligation to Deliver (or otherwise perform the Contract) and SOLEVO may immediately upon notice terminate the Contract.
Unless otherwise expressly provided in this Contract, the price specified in this Contract (whether fixed or fixed pursuant to the terms of this Contract) is exclusive of VAT.
The Parties recognize that VAT may be due on individual Deliveries made under this Contract at different rates in different countries and the Parties agree to supply all necessary information required to issue invoices compliant with the VAT laws of the country in which the Delivery occurs, and all necessary information required to file complete and accurate returns with the appropriate taxing authorities.
If VAT is not to be assessed on the Delivery, the Buyer shall be responsible for supplying all necessary documentation which Seller needs to not assess VAT on the Delivery. If the Buyer fails to provide such documentation to the Seller, the Seller may assess VAT on the Delivery at the rate applicable in the country in which the Delivery is assessed for VAT. If the Seller assesses VAT on the Delivery, the Buyer shall pay VAT as specified in the Seller’s invoice.
If the Seller initially charged VAT on the Delivery but the Buyer subsequently presents documents to Seller which allow or the Delivery to be free from VAT, the Seller shall: (a) return the amount of VAT in respect of the Delivery actually recovered from the relevant taxing authority in the currency in which it is received and within 3 (three) working days of receipt by the Seller of payment from such taxing authority; and (b) present to the Buyer a supplemental invoice on which no VAT is assessed on the Delivery.
The Counterparty shall indemnify and hold SOLEVO harmless for any Liability incurred by SOLEVO as a result of VAT charged or not charged on any Delivery in reliance upon the Counterparty’s presentation, or non-presentation of documents to determine the VAT status of the Delivery.
9 EXCISE, CUSTOM DUTIES, AND TARIFFS
Without prejudice to VAT provisions set out in the Contract, any taxes, tariffs and duties whether existing or new on the Product or on commercial documents relating thereto imposed in the country of origin or shipment shall be borne by the Seller. Any taxes, tariffs and duties whether existing or new on the Product or on commercial documents relating thereto imposed in the country of destination shall be borne by Buyer.
The Counterparty shall provide SOLEVO with all information and documents required by SOLEVO to observe the Regulations relating to excise, custom duty, or tariffs. In the case of Delivery of Products subject to excise, custom duty,
or tariffs the Counterparty undertakes to observe the applicable Regulations. In the case of Deliveries of Products under duty suspension, the Counterparty shall, in particular, be required to observe all applicable procedures and Regulations.
The Counterparty shall, upon first request of SOLEVO, indemnify and hold harmless SOLEVO from and against any Liability (including claims for excise duty, custom duty or any other payments) arising from the Counterparty’s breach of obligations under this clause.
Each Party undertakes to obtain and maintain a sufficient liability insurance policy with a reputable insurance company, as from the effective date of the Contract, covering all the risks associated with its activities, arising out of or as a consequence of its obligations under the Contract. Each Party shall provide the other Party, upon request, with an insurance certificate.
11 DEFAULT AND TERMINATION
The Party in default shall be the “Defaulting Party” and the other Party, not in default, shall be the “Non-Defaulting Party”.
Under the Contract (i) and (ii) below shall individually, or collectively, be defined as an “Event(s) of Default”:
(i) the Defaulting Party is in breach of any duty or obligation under the Contract, including but not limited to; failure to perform the Contract (a) the failure by the Defaulting Party to discharge any obligation, or pay any amounts owing when due without adjustments, discounts, deductions, set off, or withholdings of any kind; and/or (b) the failure by the Defaulting Party to take Delivery during a period, or at an agreed date, of any Products as provided for in the Contract; and/or (c) the Defaulting Party loses or does not possess any licence, or consent which is necessary to perform the Defaulting Party’s Contract duties and obligations; and/or (d) any material litigation or other proceedings are commenced or threatened against the Defaulting Party which the Non-Defaulting Party, in its sole discretion, believes might adversely affect the Defaulting Party’s ability to pay any amounts due, or otherwise to perform its Contract duties and obligations; and/or (e) performance of the Contract becomes contrary to any Regulations imposed by any government, or any quasigovernmental entity having jurisdiction over the Defaulting Party whose performance is affected;
(ii) the Defaulting Party, or any Affiliate of the Defaulting Party, is generally not paying its debts as they become due, files or consents by answer or otherwise to the filing against it of any petition or case seeking relief under any bankruptcy, liquidation, insolvency or similar law (collectively “Insolvency Laws”), becomes bankrupt or insolvent, has an asset value less than its liabilities (taking into account contingent and prospective liabilities), has any petition or proceedings under Insolvency Laws commenced against it, makes a general assignment for the benefit of its creditors, applies for, or consents to, the appointment of a custodian, receiver, trustee, conservator or other officer(s) with similar powers over it or over any substantial part of its property.
Suspension of the Non-Defaulting Party’s performance obligations under the Contract shall be effective immediately upon notice of an Event of Default. Without prejudice to lesser termination time limits as set out in the Contract the Defaulting Party shall have five (5) running days (or a longer time limit chosen at the Non-Defaulting Party’s sole discretion) after notice of an Event of Default to remedy the Contract default. If the Event of Default remains unremedied at the end of the default notice time period the Contract shall be immediately terminated without notice.
In any event, the Defaulting Party shall immediately provide written notice to the Non-Defaulting Party of the occurrence or expected occurrence of an Event of Default.
If the Counterparty is the Defaulting Party, then, notwithstanding any other provision of the Contract to the contrary, SOLEVO shall be free to assign to any third party any and all of SOLEVO’s rights under the Contract, whether present or future, actual or contingent, including, without limitation: (i) any and all rights to require the due and punctual observance, discharge and performance by the Counterparty of all the Counterparty’s obligations and Liabilities under the Contract;(ii) all rights to money received or receivable by SOLEVO from Counterparty under the Contract as a Liability, or otherwise; (iii) the right to claim for any Liability, or any other available remedy, under the Contract. Notwithstanding any other provisions in the Contract to the contrary if the Counterparty is the Defaulting Party then SOLEVO shall have the right, exercisable in its sole discretion at any time, to adjust, discount, deduct, set-off, or withhold (collectively “Set Off”) any or all amounts which SOLEVO owes to the Counterparty (under Contract, Associated Contract, or otherwise) against any or all amounts which the Counterparty or any Affiliate of the Counterparty owes to SOLEVO (whether under Contract, Associated Contract, or otherwise). If an obligation is unascertained, SOLEVO may, in good faith, estimate the amount of that obligation and Set Off amounts owed in respect of the estimate, subject to the relevant Party accounting to the other Party when the obligation is ascertained.
A Party shall pay interest daily on any amount due and owing by that Party under the Contract and not paid on the due date. Interest shall be calculated at the LIBOR US DOLLAR monthly rate plus 5% per annum (pro rata for part thereof)
and shall be compounded monthly.
13 FORCE MAJEURE
Prevention, curtailment, delay, hindrance, interference with, or reduction of, a Party’s ability to perform the terms, provisions or conditions of this Contract shall not give rise to any claim by a Party hereto against the other, or be deemed to be a breach of this Contract if the same is proven to be caused by, or arise out of; (i) war (whether declared or not), hostilities, sabotage, blockade, revolution, or disorder; (ii) expropriation or nationalization; (iii) cutoff of energy supplies to facilities for the production of the Product; (iv) disruption of rail transportation of Product to the load port, and consequent delays; (v) breakdown or damage to storage or loading facilities; (vi) prevention of loading by terminal or port authorities; (vii) embargoes or export restrictions; (viii) acts of God, explosion, fire, frost, earthquake, storm, lightning, tide, tidal wave or perils of the sea; (ix) accidents of navigation or breakdown of or injury to vessels; (x) accidents to or closing of harbours, docks, straits, canals or other assistances to or adjuncts of shipping or navigation; (xi) strikes, lockouts or other labour disturbances; (xii) or any other event, matter, or occurrence of the same class or kind as those set out above; which is not reasonably within the control of the Party affected thereby (the “Relying Party”) and which the Relying Party is unable to reasonably prevent, avoid or overcome (a “Force Majeure Event”). Force Majeure Events shall apply equally to SOLEVO, and to SOLEVO’s supplier(s) of Products.
The Relying Party shall immediately after the Force Majeure Event becomes known to the Relying Party give notice in writing to the other Party of the Force Majeure Event and the effects, or the reasonably anticipated effects, on the Relying Party’s ability to perform; including as much detail as available, as well as the relief sought by the Relying Party. Force Majeure Event relief is conditional upon and effective from the time the other Party receives notice. During the Force Majeure Event both Parties will jointly use reasonable commercial efforts to mitigate the effects of the Force Majeure Event.
Unless otherwise agreed by the Parties in writing, the appropriate relief for a Force Majeure Event shall be as follows: (i) due to a Force Majeure Event which prevents and renders impossible the Relying Party’s Contract performance during the current shipment or Delivery period either Party may immediately terminate the affected performance obligations under the Contract without Liability. Subsequent performance obligations under the Contract (inclusive of but not limited to future shipment or Delivery period obligations) shall survive such termination. If the Force Majeure Event continues unabated into subsequent shipment or Delivery periods preventing and rendering impossible future performance obligations as they become due, then either Party shall be free, at that time, to terminate those affected performance obligations; (ii) due to a Force Majeure Event which curtails, delays, hinders, interferes with, or reduces the Relying Party’s Contract performance for the current shipment or Delivery period either Party may immediately suspend the affected performance obligations under the Contract without Liability. If the Force Majeure Event continues unabated into the next shipment or Delivery period either Party may terminate the unperformed obligations from the previous shipment or Delivery period, and concurrently suspend the performance obligations for the current shipment or Delivery period.
A Force Majeure Event shall not operate to suspend any payment obligation(s) accrued by a Party prior to the written notice of a Force Majeure Event.
Notwithstanding the foregoing provisions of this Clause should a Force Majeure Event continue unabated for six (6) months the other Party, upon notice to the Relying Party, shall be free to terminate the Contract without Liability.
Notwithstanding the foregoing provisions of this Clause a Force Majeure Event shall not include any event arising out of the acts of any government or sovereign entity which owns, directly or indirectly, any interest in the Relying Party.
14 LIMITATION OF LIABILITY
Except as specifically provided in the Contract (including but not limited to any indemnity agreed by the Counterparty), in no event, including the negligent act or omission on its part, shall either Party be liable to the other, whether under Contract, tort, breach of statutory duty or otherwise, in respect of any indirect or consequential losses or expenses including (without limitation) if and to the extent that they might otherwise not constitute indirect or consequential losses or expenses, loss of anticipated profits, plant shut-down or reduced production, loss of power generation, blackouts or electrical shutdown or reduction, goodwill, use, market reputation, third party claims, business receipts or contracts or commercial opportunities, whether or not foreseeable.
Notwithstanding the above provision or any other provision to the contrary, SOLEVO shall be entitled to recover any losses suffered in connection with any hedging or derivative instrument which may relate to the Products. Such losses, if suffered by SOLEVO, shall always be deemed to be foreseeable and recoverable.
Without prejudice to any other lesser time limit set out in the Contract or any other provisions requiring compliance within a given period, all of which shall remain in full force and effect, any claim whatsoever between the Parties shall be deemed and treated as waived and absolutely time barred unless such claim has been commenced by the claimant within one (1) year from the date of Delivery, or in the absence of Delivery, from the date (or expiry of the date range) against which it is claimed the Products were contracted to be Delivered.
If SOLEVO is the Seller, the Buyer and/or its nominated carrier shall strictly adhere to the health, safety and loading procedures at SOLEVO’s facilities.
SOLEVO may, at their sole discretion, perform an inspection of the means of transport prior to Delivery. Such inspection is a separate, non-contractual service performed for the Buyer without consideration flowing to SOLEVO. No liability shall attach to SOLEVO, whatsoever, for manner of performance or non-performance of an inspection of Buyer’s transportation equipment prior to Delivery.
Save where the Buyer provides SOLEVO with written confirmation that the Buyer intends to load at its own risk, SOLEVO may, at its sole discretion, decline to load or permit loading of any means of transport which SOLEVO reasonably determines or judges to be at risk of being contaminated, not suitable for carrying Products, unsafe, or not in compliance with any governmental, and/or health, environmental or safety regulations.
In the event that SOLEVO and the Buyer disagree on the suitability of the means of transport as aforesaid such disagreement shall be resolved on the basis of the findings of an independent surveyor appointed by SOLEVO.
All risks, losses and costs arising from the unsuitability of means of transport shall be borne by the Party responsible for transport of the Product according to the Incoterm applying.
SOLEVO may, from time to time, impose standards upon transportation equipment taking delivery of Products at SOLEVO facilities. Upon reasonable notice in writing to Buyer any loss, damage, and/or delay caused by Buyer’s failure to adhere to transportation equipment standards shall be for Buyer’s account.
16 REPRESENTATIONS AND WARRANTIES
Seller warrants that it has title to the Products sold under the Contract and that the Products will comply with the contractual specification. All other warranties and conditions implied by law are excluded.
Each Party warrants that it has entered into the Contract in a commercial capacity and that with respect to the Contract it is in all respects subject to civil and commercial law in the jurisdictions within which it operates. Each Party hereby consents generally in respect of any legal action, arbitration or other proceedings arising out of or in connection with the Contract to the giving of any relief, or to the issue of any process in connection with such action or proceedings irrespective of the jurisdiction in question. Each Party hereby irrevocably and unconditionally and to the fullest extent permitted by law waives any rights of sovereign immunity which it may have now or which it may subsequently acquire in respect of its position or any property and/or assets (present or subsequently acquired and wherever located) belonging to that Party.
Each Party represents and warrants, at the time this Contract is entered into and at all times while this Contract is in effect, that (i) it is a legal entity duly organised for an unlimited duration and is validly existing under the Regulations of its jurisdiction of incorporation and is in good standing (where such concept applies), with full power and authority to own its assets and to conduct its business as presently being conducted; (ii) it has the corporate power and authority to execute, deliver and perform its obligations under this Contract and has taken all necessary corporate and legal actions to authorise the execution, delivery and performance of this Contract in accordance with its terms, and has obtained and/or fulfilled all licenses, registrations, or other necessary requirements for or in connection with the execution or delivery and performance of this Contract; (iii) this Contract, and all other agreements and documents to be executed by the relevant Party pursuant to, or in connection with, this Contract constitute legal, valid and binding obligations, enforceable against the relevant Party in accordance with the Contract terms; (iv) the execution and delivery of this Contract and the obligations hereunder do not and will not conflict with the Regulations by which the Party is governed.
17 TRADE SANCTIONS
Counterparty acknowledges that the Regulations of the European Union, the United States, or other Regulations may prohibit certain transactions with certain prohibited destinations, persons, entities, and vessels (“Trade Restrictions”). Counterparty will take reasonable commercial steps to ensure that it will not source, deliver, transfer or resell Product, directly or indirectly, from or to, any place, person or entity, or allow the Product to be transported by any means, shipper or vessel, that would cause SOLEVO to be in violation of Swiss, European Union, United States, or any other applicable Trade Restrictions. Counterparty agrees that they shall indemnify and hold SOLEVO harmless for any Liability which may arise, whatsoever, suffered by SOLEVO from or as a result of Counterparty’s breach of Trade Restrictions.
Prior to and/or upon Delivery the Counterparty warrants that any documentation tendered to SOLEVO by the Counterparty, or the Counterparty’s agents and/or representatives, shall evidence that any origin or destination of the Product shall not contravene any Trade Restrictions. Without prejudice to SOLEVOS’ rights at law or otherwise, a breach of such warranty shall entitle SOLEVO to refuse Delivery, refuse to accept Delivery, or refuse to continue with any Delivery already underway, with all Liability associated with such breach being for Counterparty’s account.
18 BRIBERY AND ANTI-CORRUPTION
The Counterparty agrees and undertakes to SOLEVO that in connection with this Contract, they will comply with all applicable Regulations relating to anti-bribery and anti-money laundering.
The Counterparty represents warrants and undertakes that they shall not, directly or indirectly, pay, offer, give or promise to pay or authorize the payment of, any monies or other things of value to; (i) a government official or an officer or employee of a government or any department, agency or instrumentality of any government; (ii) an officer or employee of a public international organization; (iii) any person acting in an official capacity for or on behalf of any government or department, agency, or instrumentality of such government or of any public international organization; (iv) any political party or official thereof, or any candidate for political office; (v) or any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities, or (vi) engage in other acts or transactions, in each case if this is in violation of or inconsistent with any applicable anti-bribery or anti-money laundering Regulations of any government, or the applicable country Regulations implementing any OECD Convention intended to combat bribery of foreign public officials in international business transactions.
SOLEVO may terminate the Contract, without Liability, at any time, upon written notice to the Counterparty, if in SOLEVO’ reasonable judgement the Counterparty is in breach of any of the above representations, warranties or undertakings, with all Liability associated with such breach being for Counterparty’s account.
The existence and the provisions of the Contract, and any documents or information about SOLEVO, its Products, distributors or other customers, or any other non-public information, written or oral, with respect to the Contract (“Confidential Information”) shall be kept confidential and shall not be disclosed, in whole or in part, to any person other than subcontractors, officers, directors, employees, or representatives of a Party (collectively, “Representatives”) who have a reasonable need to know such Confidential Information for the purpose of negotiating, executing and implementing the Contract and such Confidential Information shall not be used for any other purpose. Each Party agrees to inform each of its Representatives of the confidential nature of the Confidential Information and to direct such persons to treat such Confidential Information in accordance with the terms of this sub-paragraph. Nothing herein shall prevent a Party from disclosing Confidential Information (i) if required by law or (ii) upon the order of any court or administrative agency, (iii) upon the request or demand of, or pursuant to any Regulation of any regulatory agency or authority, (iv) to the extent reasonably required in connection with the exercise of any remedy hereunder, (v) to a Party’s legal counsel or independent auditors, (vi) to any permitted assignee hereunder, provided that such assignee agrees in writing to be bound by the provisions of this article. Further, nothing herein shall prevent SOLEVO from disclosing Confidential Information in connection with any financing arrangement. These provisions shall apply for the duration of any Contract between SOLEVO and Counterparty and shall survive for three (3) years after the termination of the Contract.
Counterparty agrees that they shall indemnify and hold SOLEVO harmless for any Liability which may arise, whatsoever, suffered by SOLEVO from or as a result of Counterparty’s failure to discharge their obligations under this confidentialityclause.
Any notice or other communication to be given under the Contract; (i) shall be in the English language; (ii) may be given in any manner described below; (iii) shall be sent to the Party to whom it is to be given at the address, or in accordance with the electronic messaging details set out in the Contract, or such other address as the Party has previously designated to the other in writing.
Any such notice or other communication shall, unless otherwise specified in the Contract, be effective if: (i) in writing and delivered in person or by courier, at the time when it is delivered; (ii) sent by telex, at the time when the recipient’s answerback is received; (iii) sent by facsimile transmission, at the time when the confirmation of transmission is received; (iv) sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), at the time when that mail is delivered or its delivery is attempted (or the receipt is received); (v) sent by an electronic messaging system, at the time that electronic message is received; except that any notice or communication which is received, or delivery of which is attempted, after close of business on the date of receipt or attempted delivery or on a day which is not a day on which commercial banks are open for business in the place where that notice or other communication is to be given shall be treated as given at the opening of business on the next following day which is such a day.
21 CHANGE OF CONTROL
Notwithstanding anything elsewhere in the Contract to the contrary, no actual or prospective change in the organisation, control or management of SOLEVO (including without limitation, a change to its majority shareholding) shall affect or in any way change or modify the terms and conditions of the Contract which, regardless of such changes, shall continue in full force and effect.
SOLEVO shall be entitled to terminate the Contract immediately and without any further liability if a Change of Control occurs on the Counterparty. For the purpose of this provision “Change of Control” means any change in the legal or beneficial ownership with respect to the Counterparty.
This Contract shall bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign this Contract, in whole or in part, without the other Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed, provided, however, that no such consent shall be required from the Counterparty for; (i) any assignment in connection with a sale, merger, consolidation, or other business combination transaction, or (ii) any assignment to an Affiliate provided that such assignee party assumes all rights and obligations hereunder or (iii) any charge, pledge, security or assignment in favour of any provider of finance to SOLEVO or any of its holding companies.
If any provision or portion of this Contract is held to be invalid or unenforceable in arbitration or by any governmental or judicial authority having jurisdiction over it, the validity and enforceability of the remaining portions or provisions of this Contract shall not be affected.
No amendment, modification or waiver of any provision of this Contract or of any right, power or remedy shall be effective unless made expressly and in writing. No waiver of any breach of any provision of this Contract shall: (i) be considered to be a waiver of any subsequent or continuing breach of that provision; or (ii) release, discharge or prejudice the right of the waiving Party to require strict performance by the other Party of any other provision of this Contract. The granting of any time, forbearance, or indulgence (express or implied) including but not limited to additional time to open a letter of credit or affect due payments, shall not under any circumstances constitute any variation or waiver of any right, power or remedy of any provision of this Contract, regardless of the form of such forbearance or indulgence.
25 THIRD PARTY RIGHTS
Subject to any security granted by SOLEVO in respect of any financing, no term of the Contract is intended to, or does, confer a benefit or remedy on any third party. A person, company or other legal entity that is not a party to the Contract shall not have nor acquire whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise any rights in relation to the Contract. Further, the Parties hereto may rescind or vary the Contract, whether in whole or in part, without the consent of any third party.
SOLEVO shall perform the Contract with the Counterparty. If the Counterparty wishes to nominate a third-party to receive any benefit, or discharge any obligation, under the Contract then upon request from SOLEVO a description of the Counterparty‘s economic relation with the third-party shall be provided to SOLEVO, including originals of certificate of incorporation of that third-party. SOLEVO reserves the right, in its absolute discretion, to reject any nominated third-party or to demand execution of, without limitation, an indemnity and/or tripartite agreement (in SOLEVO’ chosen wording) prior to accepting the nominated third-party. Any Liability associated with nomination of a third-party under this Clause shall be for the Counterparty’s account.
26 TELEPHONE RECORDINGS
The Parties acknowledge and consent that SOLEVO may electronically record telephone conversations between SOLEVO and the Counterparty or any of the Counterparty’s agents, representatives or servants. Parties consent that the electronic record may be used during any form of dispute resolution.
27 CHANGE IN REGULATIONS
The Parties acknowledge that SOLEVO is entering into the Contract in reliance on the Regulations in effect on the date of the Contract which affect directly or indirectly the Contract and/or the Products sold under the Contract, including, but without limitation to the generality of the foregoing, those relating to the production, acquisition, gathering, manufacturing, transportation, storage, trading or delivery of the Products, insofar as such Regulations affect SOLEVO and/or SOLEVO’s supplier(s).
If at any time, and from time to time, during the currency of the Contract any Regulations are changed or new Regulations have become or are due to become effective and the effect of such changed or new Regulation(s) is (i) not covered by any other provision of the Contract; and (ii) has or will have a material and/or substantial adverse effect on SOLEVO, then SOLEVO shall have the option to renegotiate the price(s) or other relevant terms of the Contract. Such option may be exercised by the SOLEVO at any time after such changed or new Regulations are notified by written notice to the Counterparty. Such notice shall contain the new price(s) and/or terms and conditions desired by SOLEVO. If the Parties do not agree upon the new price(s) or terms and conditions within fifteen (15) running days after the date of SOLEVO’s notice, either Party shall have the right to terminate the Contract with immediate effect without Liability due to such termination.
28 CHILD AND FORCED LABOUR
The Counterparty represents that they and their relevant suppliers; (i) make no use of child labour (as defined by the International Labour Organisation (ILO) Minimum Age Convention, 1973 (No. 138 – http://www.ilo.org) as amended; and (ii) make no use of forced labour (as defined by the International Labour Organisation (ILO) Abolition of Forced Labour Convention, 1957 (No. 105 – http://www.ilo.org)
29 HEALTH AND SAFETY
The Product with its contracted specifications does not constitute a hazard to health or safety, provided that the Product is handled, used and stored in accordance with normally accepted safe working practices applicable to the Product.
Parties should, for their own safeguard, consult the relevant Regulations, codes of practice, safety brochures, and utilize production and warehouse inspection regimes to ensure adequate hygiene, safety and environmental standards; and the enforcement thereof, with respect to handling, processing and storing of the Product.
The Parties accept any inherent risks associated with the Product and accordingly neither Party shall have a claim of any kind against the other Party directly or indirectly arising from death, illness or injury of any person or damage to any property as a result of direct or indirect exposure to the Product unless the damage is the result of a breach of contract by, or gross negligence, or willful intent on the part of one of the Parties.
30 WHOLE CONTRACT
The Contract constitutes the whole agreement between the Parties as to the subject-matter hereof and no agreements, representations or warranties between the Parties other than those set out in the Contract shall bind the Parties.
31 GOVERNING LAW
This Contract and any non-contractual obligations arising out of or in connection with it and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the laws of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract.
The U.N. Convention on Contracts for the International Sale of Goods (1980); the Uniform Law on Sales and the Uniform Law on Formation to which effect is given by the Uniform Laws on International Sales Act 1967; the United Nations Convention on Prescription (Limitation) in the International Sale of Goods of 1974 and the amending Protocol of 1980; shall individually and collectively not apply to this Contract.
Subject to the below provisions, any and all disputes arising out of or under the Contract, and/or any claim regarding the interpretation or execution of the Contract, and/or any non-contractual obligations arising out of or in connection with the Contract shall be determined by arbitration in accordance with the GAFTA Arbitration Rules, No 125 (“the Rules”), in the edition current at the date of the Contract, and the Rules shall be deemed incorporated into and form part of the Contract, save that in the event of any inconsistency or discrepancy between the Rules and the Contract, the relevant Contract term(s) shall prevail over the inconsistent or discrepant term(s) of the Rules.
Neither Party to the Contract, nor any persons claiming under the Contract shall bring any appeal or enforcement proceedings against the other in respect of any such dispute, or claim until such dispute or claim shall first have been heard and determined by the arbitrator(s) or a board of appeal, as the case may be, in accordance with the Rules and the obtaining of a final award from the arbitrator(s) or board of appeal, as the case may be, shall be a condition precedent to the right of either party to the Contract or of any persons claiming under the Contract to bring any appeal or enforcement proceedings against the other of them in respect of any such dispute or claim.
Nothing contained in this clause shall prevent the Parties from seeking to obtain security in respect of their claim or counterclaim via legal proceedings in any jurisdiction, provided such legal proceedings shall be limited to applying for and/or obtaining security for a claim or counterclaim, it being understood and agreed that the substantive merits of any dispute or claim shall be determined solely by arbitration in accordance with the Rules.
However, notwithstanding the provisions as set out above, in cases where neither the claim nor any counterclaim exceeds the sum of USD 250,000, the arbitration shall be conducted by a sole arbitrator in accordance with the GAFTA Simple Disputes Arbitration Rules, No. 126 (“the Simple Disputes Rules”), in the edition current at the date of the Contract, and the Simple Disputes Rules shall be deemed incorporated into and form part of the Contract, save that in the event of any inconsistency or discrepancy between the Contract and the Simple Disputes Rules, the relevant Contract term(s) shall prevail over the inconsistent or discrepant term(s) of the Simple Disputes Rules.
The unsuccessful Party in any arbitration proceedings arising out of the Contract shall pay the successful Party’s legal costs, as agreed or as assessed by the Tribunal in the event agreement cannot be reached, and the arbitrator(s) or a board of appeal, as the case may be, shall, on application by the successful party, include an order as to such fees in its Award.