GENERAL TERMS AND CONDITIONS
1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions. metals Purchase (hereinafter referred to as "GTC") apply to the sale of any types of metals (hereinafter referred to as "the Goods") by VIDLIN INVEST OÜ including its assignees and successors (hereinafter referred to as “the Company” or “the Seller”) to any of its clients (hereinafter referred to as “the Client” or “the Buyer”). These GTC form an integral part of any order, contract, request, accepted quotation or offer of the Company (hereinafter referred to as "the Order"). Only these GTC, the terms of the Order and any documents incorporated by reference in the Order are binding on the Company.
1.2 If any term of these GTC is unenforceable for any reason, the other terms and conditions will not be affected.
1.3 If there is a discrepancy or ambiguity between the conditions in an Order and these GTC, the conditions in the Order will prevail.
2. PRICE, PAYMENT AND INSURANCE
2.1. Each Party should pay their own bank charges and for their own account. The date of payment shall be the date of funds write-off from account of the Company or third-party executing payment on behalf of the Company.
2.2. Hereby the Parties agreed that third-party payment on behalf of the Company is acceptable and would have been considered as made by the Company in fulfillment of its obligations hereunder. While transfer a payment, the Company or a third party, making payments on its behalf, are obliged to refer with the payment documents to the number and date of the Contract as well as to the number and date of Invoice (Invoices) to be settled via the payment is made.
2.3. Title over the Goods is transferred as soon as 100% Goods` value due payment would have been paid to the Seller unless agreed in the Order. In case the Company or his bank fails to transfer the funds in time or the transfer had been delayed (except in cases of Force Majeure or such due date of payment is non-business day (as specified below)) then the Seller is entitled to suspend the next deliveries of Goods not being responsible for the violation of the terms of delivery. The Parties agreed to consider a Business Day as the day on which banks are open for common banking and payments in Frankfurt (EUR) or New York (USD), country of the Buyer and Estonia or such county where the bank of dedicated Company`s account is located.
2.4. In the event of total or partial loss or damage of the Goods during transport after risk of Goods has passed from the Seller to the Company, final settlement for the Goods that has been damaged shall be made based on Certificate of Weight and at the time it would ordinarily have become due for payment in accordance with the terms hereunder. In case of total or partial loss or damage or theft or any other illegal criminal activity before loading, the Seller is fully responsible for any Company`s losses suffered and must provide substitutional Goods within 10 (ten) calendar days after date of respective Event.
2.5. All taxes, fees, duties and other similar charges imposed on, or arising out of, the sale of the Goods to the Company or on the Goods themselves (or value added thereto) prior to the delivery to the Company, shall be for the account of and payable by the Seller and all such items imposed as of the moment of the delivery to the Company shall be for the account of and payable by the Company, according to the applicable law. Any income taxes arising out of or by virtue of this Agreement or its performance shall be for the sole account of the contracting Party on which they are legally imposed.
2.6. In case of Goods` non-delivery caused by reasons solely attributable to the Seller, including, but not limited to, Seller`s gross negligence or willful misconduct (unless the new shipment period has been agreed between the Parties in writing), the Seller shall pay back to the Company within 5 (five) calendar days after 01.01.2021 the last date of scheduled shipment period the total values of any and all intermediary payments received from the Company as well as to reimburse to the Company (upon provision of the Documents) the full amount of overpayment (as sum of documented costs and expenses) associated with purchase of Goods from the market at prevailing market price aimed to replace undelivered Goods. In particular, in case of no return of intermediary payments value and/or overpayment, the default interest at rate of 7% p.a. (based on 360-calendar days) to be accrued from the first date after due date until the date when the full settlement is made between the Parties.
3.1. Loading of following material is strictly prohibited:
- Materials contaminated / coated by pitches, chemicals etc.;
- Dangerous chemical cases and/or chemically contaminated material;
- Radioactivity contaminated materials;
- Explosive, flammable combustible, liquids, solids, gases and their containers;
3.2. The Goods must be totally free of radioactive contamination and poisonous materials not exceeding the level accepted and allowed by International Acceptable Norms, which will be certified by All Cargo Service. The Seller guarantees that the Goods should be loaded in bulk and be suitable for further transportation by international air-freight.
3.3. Goods are to be delivered being ready for export and shall not require any further manipulations and services to be made and/or rendered (such as pricking, cleaning, separation, cutting and carving and other operations aimed to receive the material in good order for further export sales).
3.4. The Goods are to be shipped within agreed period of time (as per the Order) subject to fixation of the vessel and positive pre-shipment inspection made by the Company (or authorized Company`s representative) unless extension of this term would have been required by the Company with reasonable explanation of reason for extension. Before air-freight`s fixture, the Company is entitled to request from the Seller a Notice of Goods readiness and such Notice shall be provided within 1 (one) business days from the Company`s request. In case of non-receipt of such Notice of Goods readiness, the Company is entitled to shift the loading dates (with written notice to the Seller) unilaterally without any damages due.
3.5. The Company (and/or its representatives) is entitled to inspect the Goods before loading and, in case of material difference in quality of material and agreed specification of the Order, is entitled to cancel the shipment and/or stop the loading until further agreement would have been reached between the Parties.
3.6. The delivery date to be determined by the date of B/L to be issued as per Instructions of the Buyer to be received prior to the loading. Any extra costs or expenses caused by incorrect execution of BL shall be reimbursed by the Seller and the Company is entitled (unless agreed between the Parties) to set-off respective amount due for final settlement.
4.1. Hereby the Seller guarantees and confirms to the Company that:
- Seller is the legal owner of the Goods;
- The Goods are not subject to any encumbrance, pledge, mortgage, financial instrument (derivatives, options) or any other third party`s secured or non-secured interest prevailing the Parties of execution of their rights and obligations hereunder as well as and not derived from illegal/criminal sources;
- Goods are unsold and/or not pre-sold to any third party except the Company;
- the Goods are (a) conform with agreed specifications and requirements; (b) are fit for the purpose(s) made known to the Seller; (c) are free from defects in design, materials and workmanship, and (d) comply with all applicable statutory requirements and standards.
4.2. Each Party hereby warrants and represents to the other that it:
- (a) Is duly organized, validly existing, and in good standing under the laws of the country in which it was incorporated, formed or constituted with full corporate power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use and to perform all its obligations under this Agreement;
- (b) Has the absolute and unrestricted right, power and authority to execute and deliver this Agreement and to perform their obligations hereunder, and such action has been duly authorized by all necessary action by each of their directors, officers, managers, owners, principals, boards of directors and managing members, as appropriate.;
- (c) Neither the execution and delivery of an Order will, directly or indirectly (with or without notice or lapse of time) (1) breach any provision of any of the governing documents of each Party, or (2) breach or give any governmental body or other person or entity the right to challenge any of the contemplated transactions or to exercise any remedy or obtain any relief under any legal requirement to which a Party may be subject.
- (d) No representation or warranty by a Party in an Order contains or will contain any untrue statement of a material fact (e) Shall not encumber, secure, pledge or create any security interest and/or sell or transfer or assign or dispose in other ways any contract rights covered herewith without the written consent of the other Party;
- (f) Shall not assign, hypothecate or encumber its interest in an Order.
4.3. The Seller warrants due performance of an Order for a period stipulated into.
5. THIRD PARTY RIGHTS
5.1. The Seller warrants that neither the Goods nor their sale infringes or violates any third-party rights. The Seller indemnifies and holds harmless the Buyer against all claims, damages, loss or expense arising out of any infringement of third-party rights. The Seller must, at its own expense if so, requested by the Buyer, defend the Buyer against all such claims.
5.2 If the Goods become the subject of claims of infringement of third-party rights, the Seller must, after consultation with the Buyer, either obtain the right for the Buyer to use the Goods or modify or replace the Goods to remove the infringement, without prejudice to the Goods’ compliance with the Order
6.1. Subject to the provisions of applicable law, the Parties agree that all information and data acquired or obtained by any Party in respect of the deal(s) contemplated shall be considered confidential and shall be kept confidential and not be disclosed during the term of the Order to any person or entity not a party to this Agreement, except:
- (i) To any affiliate of such Party, if the disclosing Party shall remain liable for any breach of confidentiality by its Affiliate to whom any disclosure has been made;
- (ii) To a governmental agency or other entity when required by any applicable law;
- (iii) To the extent such data and information is required to be disclosed in compliance with any applicable laws, rules or regulations, or pursuant to any legal proceedings or because of any order of any court acting in pursuance of its powers or pursuant to any rules or requests from any regulatory authority;
- (iv) To contractors, prospective providers of financing and insurance and prospective customers to the extent such disclosure is required for such contractor's, financial provider's or insurance provider's work for that Party or such customer's business transaction with such Party, provided that the disclosing Party shall remain liable for any breach of confidentiality by such contractors, prospective providers or financing and insurance and prospective customers to whom any disclosure of such information has been made;
- (v) To the extent such data and information must be disclosed pursuant to any applicable laws, rules, regulation or court order or by a stock exchange having jurisdiction over such Party, or its Affiliates;
- or (vi) To its respective employees, subject to each Party taking customary precautions to ensure such data and information is kept confidential.
6.2 Disclosure pursuant to terms herein shall not be made unless prior to such disclosure the disclosing Party has obtained a written undertaking from the recipient party to keep the data and information strictly confidential and has agreed not to use or disclose the data and information except for the express purpose for which disclosure is to be made.
6.3. The provisions hereof shall not apply to any information that (i) is or becomes publicly available without fault of the receiving Party or any of the persons to whom they make disclosure; and/or (ii) is known by the receiving Party as evidenced by written record before disclosure hereunder.
6.4. The documents under the Order and/or any information contained in such documents will not be passed, under any circumstance, to a whatever company or private persons who are not end buyers or end suppliers without prior specific written consent of the party(s) providing such information.
6.5. Conditions hereof shall survive the termination of the Order for a period of three (3) years after such termination.
6.6. The Parties shall be entitled to all remedies available at law or in equity to enforce or seek relief in connection with the confidentiality obligations contained herein.
7. INSURANCE The Seller must take out and maintain in force all insurance policies necessary to cover its liability under the Order. The Seller must provide the Buyer with evidence of such insurance upon the Buyer`s request.
8. FORCE MAJEURE
8.1. No Party is liable for delay or failure in performing all or part of the Order, to the extent that its performance has been prevented, delayed or hindered due to Force Majeure where Force Majeure means events or circumstances not existing on the effective date of the Agreement, not reasonably foreseeable on such date, beyond the reasonable control of the Party affected, which are not due to the fault, negligence or breach of this Agreement by such Party and cannot be reasonably be avoided; including but not limited to:
- (i) acts or restraints by governments or public authorities;
- (ii) war, revolution, riot or civil commotion;
- (iii) strikes or other industrial action that is nationwide or political in nature;
- (iv) blockage or embargo;
- (v) damage caused by explosion, fire, corrosion, ionising radiation, radioactive contamination, flood, natural disaster, or malicious act and
- (vi) any such circumstances affecting a Buyer’ affiliate (each certified by the relevant Chamber of Commerce as “Force Majeure”). Force Majeure does not include any strike, lockout or other industrial action initiated by, or involving only, workers or employees or subcontractors within the organisation of the Party affected.
8.2. If a Force Majeure Event occurs, the Party directly affected shall advise the other according to the provisions stated in Clause 7 as promptly as possible. In case that either Buyer or Seller declares a Force Majeure Event the Party declaring a Force Majeure Event shall submit a written notice of the Force Majeure Event, with evidence and explanation that its performance has been prevented or delayed. Such written notice with evidence and explanation shall be submitted as promptly as practicable and, in any event, not later than 5 (five) calendar days after occurrence of such Force Majeure Event. Written notice shall also be given when the event ceases. Failure to give either notice makes the Party thus failing liable in damages for loss which otherwise could have been avoided.
8.3. Should the cause of a Force Majeure Event last 30 (thirty) days or less, tonnages outstanding owing to such Force Majeure Event shall be delivered and accepted after the cause of such Force Majeure Eventowing to Force Majeure will be carried over to the end of the Order or otherwise to a mutually agreed upon time period.
8.4. Should the Force Majeure Event last longer than 30 (thirty) days, the Party so advised of the Force Majeure event may, at its option, be entitled to cancel the outstanding tonnage(s) without incurring any liability or penalty.
8.5. The fact of commencement of Force Majeure circumstances shall be confirmed by original conclusion of CCI (Chamber of Commerce and Industry) of the country where these circumstances occurred or another competent organization (in power or acting on behalf of or superseding CCI). Non-notification or untimely notice of the commencement of Force Majeure circumstances deprives the Party of the right to refer to the above-mentioned circumstances as a reason for release from responsibility for non-fulfilment of obligations.
9. ASSIGNMENT Neither Party may assign or transfer its rights and/or obligations under the Order (incl. the right to receive payment) without the other party’s prior written consent not be unreasonably withheld or delayed.
10. NOTICES Any notice given under the Order must be in writing (including e-mails) and to be served by personal delivery, pre-paid recorded delivery, first class post or facsimile to the receiving Party's address set out in the Order or such subsequent addresses as may be notified by the Parties to each other.
11. GENERAL TERMS
11.1. The Buyer shall not be liable for any indirect or consequential damages and/or losses of the Seller as well as unrealized profit, whether in contract, tort or otherwise, resulting from the manner of performance and/or non-performance, whether in whole or in part, of any of the obligations arising hereunder.
11.2. The Order becomes legally binding on its effective date and valid up till Termination Date indicated. In case of existence of outstanding non-settled payments obligations and non-fulfillment of other Party’s obligations have arisen during the period of validity of the Agreement – these obligations remain in force until their full execution.
11.3. The failure by one party to require performance of any provision shall not affect that party's right to
require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
11.4. No amendment of this Agreement shall be effective unless made in writing and signed by both Parties
11.5. Unless otherwise specified herein INCOTERMS 2020 and/or any amendments or replacement thereof shall apply. Legal title in each shipment passes from the Seller to the Buyer upon payment.
11.6. If the Seller becomes insolvent or adjudged bankrupt or a receiver or administrator is appointed over the Seller or any of its assets or insolvency or bankruptcy or similar proceedings are commenced in relation to the Seller or its assets, the Buyer may upon written notice (a) terminate the Order, or (b) suspend or defer performance of the Order; and the Seller shall become liable for any and all costs, liabilities and expenses whatsoever incurred by the Buyer due to the exercising its right hereunder. Any exercise by the Buyer of its rights under this clause shall be without prejudice to any other rights or remedies available to Seller or to Buyer under this contract or otherwise. Termination or expiry of the Order does not affect the Buyer`s rights to pursue claims for breaches occurring before termination or expiry.
11.7. The failure or delay by a Party to enforce at any time or for any period any one or more of the terms or conditions of the Order and GTC is not a waiver of them or of the right at any time subsequently to enforce all terms and conditions of the Order. has ceased to exist over a period to be agreed between Buyer and Seller in accordance with their capabilities. Buyer will make reasonable best efforts to accept and Seller will make reasonable best efforts to ship said tonnage in the same contractual year. If no such agreement is reached, tonnages outstanding
11.8. If any provision of the Order and/or GTC is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the Order and/or GTC continues to be valid as to its other provisions and the remainder of the affected provision
11.9. Each Party guarantees that it has not entered into the Order relying on any warranty, representation or undertaking except those expressly set out in the Order.
11.10. No waiver, alteration or modification of any of the terms of the Order is valid or binding unless in writing and signed by the Parties.
12. SETTLEMENT OF DISPUTES
12.1. Any dispute or controversy which may arise should be settled by negotiations within 15 (fifteen) calendar days after the Notice of Claim and, in case of no agreement between the Parties, shall be resolved by The Court of Arbitration of the Estonian Chamber of Commerce and Industry in accordance with the Estonian Rules of International Arbitration.
12.2. The seat of Arbitration shall be in Estonia, the arbitral proceedings shall be conducted in Estonian language. Substantive laws of Estonia shall apply to this Contract.
12.3. Notwithstading on above terms, nothing herein shall limit the right of the Party to take proceedings against another Party in any other court of competent jurisdiction nor shall the taking of proceedings in one or more jurisdictions preclude the Lender from taking proceedings in any other jurisdiction, whether concurrently or not. The Party in default irrevocably and unconditionally waives any objection which it may at any time should the laying of the venue of any proceedings in any court referred to in this paragraph and any claim that any such proceedings have been brought in an inconvenient forum.