TERMS AND CONDITIONS
Commodity Form: Gold Dore Bars
Origin: Ghana, Guinea, Burkina Faso, Benin, and other agreed upon locations in Africa.
Purity: 92% or better in Dore Bar form
Delivery 1st Trial Tranche: 200 (TWO HUNDRED) kgs CIF AIR FREIGHT Cargo as mutually agreed
Delivery Shipment CIF:
1,000 (ONE THOUSAND) kgs per month, every month, for the 12 (TWELVE) month period. Delivery of each shipment to the Buyer will not be later than the fifteenth day of each month. The first delivery will be accomplished within the first 25 (TWENTY FIVE) days of XXXXX 2020, pending Seller approval of Buyer’s documents. 1,000 (ONE THOUSAND) kgs per month, every month, for the 12 (TWELVE) month period. Delivery of each shipment to the Buyer will not be later than the fifteenth day of each month. The first delivery will be accomplished within the first 25 (TWENTY FIVE) days of XXXXX 2020, pending Seller approval of Buyer’s documents.
Total Quantity: 12 (TWELVE) Metric Tonnes (“MT”)
Destination: Mutually Agreed Refineries inDUBAI (“Destination Refinery”). Preference for Emirates GOLD DMCC, Dubai, U.A.E.
Start Delivery: Within 3-7 (THREE to SEVEN) days after both Parties sign this Agreement and receipt by the Seller of one of the Financial Instruments, as mutually agreed by both Parties and as detailed under the section “PAYMENT” herein, issued by the Buyer’s Bank or Buyer’s Refinery in favor of the Seller.
Price: A base price of 10% (TEN Percent) Gross Discount, and 7% (SEVEN Percent) Net Discount to the Seller, as calculated based on the London Bullion Market
Association (“LBMA”) 2nd price fixing of Gold contained in each Gold Dore bar as measured/determined by Refinery Assay. Such pricing allows for adjustments up or down based upon and in proportion to daily fluctuations in the LBMA spot-market per ounce/per kilo pricing of Gold and shall be in effect on the day each consigned shipment is received, assayed and reported by the Refinery.
Commission: The Total Commission of 3.0% (THREE Percent) is paid by Named Paymasters, who shall distribute the Total Commissions to all the Agents/ Intermediaries pursuant to the Irrevocable Master Fee Payment Agreement (“IMFPA”) as attached hereto as Exhibit C.
Term of this SPA: Bank Comfort Letter (BCL), with Authority to Verify (ATV) and Tear Sheet, for the amount of 200 (TWO HUNDRED) kgs trial delivery.
PAYMENT GUARANTEE AND PROCESS
Buyer will issue a guarantee to Seller’s nominated account in the form of both:
- BCL (Bank Comfort Letter) with Authority to Verify (ATV), plus tear sheet. [For the delivery of trial tranche of 200 (TWO HUNDRED) kgs only].
2. The fully executed SPA will be lodged with all relevant Bank, Warehouse, or Refinery Officers. Proof of Product
3. (“POP”) and Proof of Funds (“POF”) will be exchanged Officer to Officer via MT600 and MT99 (respectively).
4. Each tranche will then be paid via MT103, bank-to-bank transfer, 24 (TWENTY-FOUR) hours to max 48 (FORTY-EIGHT) hours after receiving final assay report.
- CURRENCY: Referenced Currency in this Agreement is to be in DOLLARS (Currency of the United States of America).
- CLEAR TITLE: The Seller confirms and warrants that the Title of the Raw Gold to be sold herein will be free and clear of all liens and encumbrances including from the International Monetary Fund and World Bank Group.
- SELLER’S WARRANTY: The Seller warrants with full legal responsibility under penalty of perjury, that the Seller has full power, right, title authority and ability to enter into this SPA to sell and deliver the Raw Gold Commodity specified herein and that said Commodity has no criminal origin; being fully able to perform all Seller’s obligations under this SPA.
- BUYER’S WARRANTY: The Buyer warrants with full legal responsibility under penalty of perjury that Buyer is ready, willing and able to purchase the said Commodity, with funds, certified as good, clean, clear; with no proceeds from criminal origin; being fully able to perform all Buyer’s obligations under this SPA.
- PAYMENT TERMS:
- PURCHASE PRICE:
The agreed Purchase Price in US dollars is based on the London Bullion Market Association (“LBMA”) 2nd price fixing taken as average of 2 (TWO) days prior to verification confirmation at Buyer’s Assay Refinery (“LBMA Market Price”), with a Gross Discount of 10% (TEN Percent) (“Gross Purchase Price”) and Net Discount of 7% (SEVEN Percent) (“Net Purchase Price”) to the Buyer. In the event that the LBMA is not operating on that scheduled day, the price calculation used shall be based on the second LBMA fixing of the NEXT MARKET OPENING DAY.
At the Conclusion of the Procedure of Transaction for each Tranche, pursuant to Clause 5 – PROCEDURE OF
TRANSACTION below, The Buyer shall remit the LBMA Market Price less the Net Discount of 7% (SEVEN Percent) as the Net Purchase Price to Seller’s nominated bank account, within a maximum of 48 (FORTYEIGHT) banking hours after conclusion of verification of the Raw Gold. It is estimated that the first tranche delivery payment shall occur within 25 (Twenty-Five) days from the execution of this Agreement by both Parties.
The total Commissions for all Agents/Intermediaries of 3.0% (THREE Percent) (“Commissions”) being the difference between the Gross Purchase Price and the Net Purchase Price, shall be included within that portion of the Net Purchase Price remitted to designated Paymasters, who shall further distribute fees to all Agents/ Intermediaries pursuant to the IMFPA, attached hereto as Exhibit C.
- DELIVERY TERMS:
The delivery of the Raw Gold shall be done in 3-7 (THREE to SEVEN) business days and shipped to the Destination Refinery. The cost of all exports taxes and relevant documentation shall be borne by the Seller.
The cost of all import taxes shall be borne by the Buyer.
All invoices and relevant documents including export documents and Airway bill shall be emailed to the Buyer 2 (TWO) days in advance before shipment commences for Buyer’s preparation for clearing custom purposes at the destination Airport. The Seller shall be responsible for the transfer of the Raw Gold to the Destination Airport, located within DUBAI as mutually agreed. The Buyer shall be responsible for the transfer of the Raw Gold from the Destination Airport to the Buyer’s refinery location as mutually agreed.
- TERMS OF DELIVERY:
The Raw Gold shall be delivered at the Destination Refinery as mutually agreed.
The Seller shall at its own expense arrange transportation and insurance of the Gold through the Airlines upon the receipt and VERIFICATION of the BCL from the Buyer.
The Seller shall act only within the framework of laws and regulations of all local, state, federal, internal, government authorities and shall comply with all of the applicable United Nations and European Economic Community Conventions.
The Seller undertakes the obligation to resolve all relevant duties, taxes and export licenses to be levied in the jurisdiction of Origin of the Raw Gold.
Buyer undertakes to pay all costs regarding weighing, verification and sampling of the Raw Gold at the Destination Refinery.
- TRANSPORTATION AND ACCEPTANCE:
The Buyer shall take preliminary control of any shipment of the Raw Gold at the Destination Airport and Buyer’s
Refinery, and conduct testing on the Quality and Quantity according to this Agreement by using its own equipment.
The Raw Gold shall be delivered by the freight forwarding company or in any other way as agreed between the
The Seller or Seller’s representative shall accompany the first two Raw Gold deliveries to the Destination Refinery and be present during custom clearance, weighing, verification and sampling until the entire first two Transactions have been executed.
- ACCEPTANCE,ANALYSIS, AND RESULTS:
The tolerance of discrepancies in the results of weighing, verification and sampling should not exceed 0.2 (ZERO POINT TWO) percent.
If the results of the samples analysis are within the agreed tolerance, the Parties shall recognize the arithmetical average of the results of samples as a basis of mutual settlements on the pricing and subsequent payments to Seller to enable title and ownership to pass to the Buyer.
If the results of analysis are beyond the limits of discrepancies, the Parties shall agree on a re-analysis of samples and a date of re-exchange of their results. During this sample re-analysis, the Seller has the right within a reasonable time but no longer than 10 (TEN) business days to bring sufficient additional Raw Gold to the Destination Refinery to ensure that the Buyer has sufficient gold to satisfy the Agreement quantities as agreed to for each shipment. This additional Raw Gold will be delivered pursuant to the same terms and conditions of this SPA.
If the results of the re-analysis of samples are beyond the boundaries of agreed limits of discrepancies and in the event that the Parties are unable to find a compromise on the percentage of gold in the supplied Raw Gold consignment, then the application shall be made for analysis of samples by an independent arbitration laboratory (“Arbitration Analysis”) that is mutually agreed upon by the Parties to this SPA.
If the result of the Arbitration Analysis of samples is between the results of analysis of both Parties or coincides with any of them, the arithmetic average of the Arbitration Analysis sample and the nearest sample shall be used for calculation of pricing and final payment to enable title and ownership to pass from the Seller to the Buyer. Both Parties will bear their own respective costs during this process until final settlement, subsequent to which any reimbursement of costs will fall under the terms and conditions of this SPA.
Both Parties recognise that during the refinery process at the Buyer’s Refinery, there may be additional metals that could be extracted during this process and it is up to the Seller with the Buyers assistance in good faith to negotiate with the Buyer’s Refinery for payment on these additional metals to the Seller.
The Raw Gold packaging must be selected by the Seller in such way that the quality of the Raw Gold will not disperse during transportation and storage.
The Parties independently of each other shall seal each piece of Gold.
Packaging and sealing of the Raw Gold should ensure absence of any foreign or accidental access to the product and shall be under the control of an internationally recognised and secure transportation company. Otherwise, no special requirements for the type and size of packaging or sealing shall be imposed.
The shipment and delivery shall be identified with all assigned Agreement reference codes and numbers including the name of the Recipient Company and the Officer of the Recipient Company.
- Delivery shall be accompanied by the following export documents that Seller must provide to the Buyer prior to arrival of the Raw Gold to the destined storage facility.
- Certificate of Origin, 1 (One) original and 3 (Three) copies
- Certificate of Purity
- Certificate of Ownership, 1 (One) original and 3 (Three) copies
- 4 (Four) Copies of Commercial Invoices in favour of Buyer, 2 (Two) originals and 2 (Two) original copies showing Agreement reference codes, description of goods, packing list, unit price, total amount, and gross/net weight of goods.
- Receipt of the paid customs duties and taxes.
- The Government issued Export Permits, 3 (Three) copies issued
- Copy of the Airway Bill marked with “Air Freight pre-paid”, 1 (One) original and 3 (Three) copies
- Customs and Excise tax-paid Receipts
- Declaration that the product is free, clear, of non-criminal origin, unencumbered and free of any liens, transferable and exportable (Movement Certificate)
- Certificate of Analysis report issued by a local gold assay laboratory recognised world wide
- AGREEMENT TERM:
This Agreement is valid starting for 12 (TWELVE) months duration (“Term”).
Either Party may terminate this agreement by giving the other Party 3 (THREE) months’ written notice with evidence and proof of unfulfilled Agreement obligation of the other Party.
- TITLE &OWNERSHIP:
The title and ownership of the Raw Gold, as well as all documents, shall be transferred from the Seller to the Buyer upon Buyer bank’s verified confirmation of cleared payment by Buyer into Seller’s account, evidenced by payment confirmation.
- BINDING AUTHORITY:
This Agreement is binding on the Parties hereto, their assigns and successors and is signed with full authority to execute the Transaction.
- JURISDICTION AND CHOICE OF LAW:
- Any action or legal proceeding related to this Agreement shall be adjudicated under the laws of the United Kingdom (“UK”).
- Any dispute arising out of or in context with this Agreement or related to any extended Agreement concluded as a result of this Agreement shall be settled by Arbitration. The seat of the Arbitration tribunal shall be under the laws of Arbitration as interpreted in UK and the English language shall be the language of this Agreement and any Arbitration Proceedings.
Any and all notices required to be given by one Party to the other, in regard to this Agreement, shall be in writing by Posting the same through registered post at the address or addresses as stated herein and copied by fax or Email, directly to the Parties concerned at the contact details contained in this Agreement.
- FACSIMILE COPIES:
This Agreement shall be accepted to be legal and binding, by both Parties, once executed by both Parties and sent by fax and/or E-mail directly to the Parties concerned at the numbers and/or E-mail addresses contained within this Agreement.
- FORCE MAJEURE:
The Parties hereto shall not be held liable for any failure to perform, if failure is caused by reasons stated under the “Force Majeure” clause as regulated by the International Chamber of Commerce (“ICC”), Paris, France, which clauses are deemed to be incorporated herein. No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, political unrest, labour dispute, strike, lockout or interruption or failure of electricity [or telephone service] in such circumstances. Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.
- NO ASSIGNMENT:
This Agreement shall be binding upon the Parties and their respective successors and assigns and shall inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Party.
None of the terms or conditions of this Agreement may be waived except in writing by the Party which is entitled to the benefits thereof. No failure or delay in exercisin any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.
If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
- INTELLECTUAL PROPERTY:
If any Both Parties own or possess adequate rights or licenses to use all Intellectual Property necessary to the conduct of their businesses as now conducted, and such Intellectual Property represents all material intellectual propert rights necessary to the conduct of their business as now conducted. The Buyer agrees that it will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of or in any other way exploit any of the content, in whole or in part of the Seller. All logos and publications related to both Parties are trademarks, and both Parties may not copy, imitate or use the content or marks without the Seller’s prior written consent. There are no infringements or other violations of any Intellectual Property by any third party, except for such infringements and violations, which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Buyer agrees to fully defend, indemnify and hold harmless Seller and its affiliates (and each of their officers, directors, employees, agents and representatives) from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature, including reasonable legal and accounting fees, arising out of or in connection with: Buyer’s breach of its obligations, representations or warranties under this Agreement or any other instructional manuals, guidelines, or documentation made available by Seller to Buyer, or Buyer’s violation of any applicable law or the rights of a third party (including any laws related to financial crimes and intellectual property rights).
This Agreement may be terminated, and the transactions contemplated by this Agreement abandoned at any time prior to the closing by agreement of either Party – should either Party have made misrepresentations resulting in the signing of this Agreement, should there be an irrevocable breakdown between both Parties, and should either Party be in material breach of clauses of this Agreement and, following discussion, those breaches and difference are not remediable or reconcilable.
- IF PAYING VIA MT103/72 BANK–TO-BANK PAYMENT:
The Buyer will execute MT103/72 payment to the Seller’s designated Beneficiary Banks 48 (Forty-Eight) hours BEFORE final Assay verification. The Buyer agrees to remit funds to the designated Seller Beneficiaries coordinates. Release of conditional hold with occur 24 (TWENTY-FOUR) to 48 (FORTY-EIGHT) hours
AFTER final assay verification.
XIX. CONFIDENTIALITY AND NON-CIRCUMVENTION:
The Parties will maintain complete confidentiality regarding all terms of the instant Agreement. They will not disclose names, addresses, email addresses, telephone and tele-fax or telex numbers to any contacts by either party to any third party and they each recognize such contacts as the exclusive property of the respective parties and they will not enter into any direct negotiations or transactions with any contacts revealed by the other party.
The Parties will not in any manner solicit, nor accept, any business in any manner from sources or their affiliates, which sources were made available through this Agreement, without the express permission of the party who made available the source. They further undertake not to enter into business transactions with banks, investors, sources of funds or other bodies, unless written permission has been obtained from the other parties to do so.
The Parties agree not to circumvent or attempt to circumvent this agreement in an effort to gain consultant fees, commissions, remunerations or considerations to the benefit of the one or more of the Parties while excluding benefits to any other Party. The circumvention shall be immediately subject to forfeiting of the commissions/consultant fees, or profits for that Party and/or being held liable for liquidated damages in the amount equal to the provable financial harm or loss suffered by the aggrieved Party.
For the sake of this Agreement, it does not matter whether information is obtained from a natural or legal person. The Parties also undertake not to make use of a third party to circumvent this clause. This Agreement is valid for any and all transactions between the Parties herein. The duration of this clause shall survive the cancellation or nullification of the instant Agreement, and will perpetuate for 5 (FIVE) years from the last date of signing.
XX. OTHER CONDITIONS:
Buyer will Both parties agree to follow the instructions described in the procedures section of this SPA.
By signing this Agreement, all signatories hereto acknowledge that they have read and each party fully understands the terms and conditions contained in this agreement and by their initials and signature hereby unconditionally agree to its terms as of the date noted herein.