C Incoterms
Sample Contract
CIF/CIFFO/C&F/C&FFO TERMS
Effective 1st June 2014
Contract No.1
Copyright
THE GRAIN AND FEED TRADE ASSOCIATION
GENERAL CONTRACT FOR SHIPMENT OF FEEDING STUFFS
IN BAGS
TALE QUALE – CIF/CIFFO/C&F/C&FFO TERMS
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*delete/specify as applicable Date …………………………………………………………..
1 SELLERS ………………………………………………………………………………………………………………………………………………………………………………………………………
2
3 INTERVENING AS BROKERS …………………………………………………………………………………………………………………………………………………………………
4
5 BUYERS………………………………………………………………………………………………………………………………………………………………………………………………………..
6 have this day entered into a contract on the following terms and conditions.
7
8 1. GOODS ……………………………………………………………………………………………………………………………………………………………………………
9 in new and/or secondhand bags of suitable strength to withstand ordinary wear and tear to port of destination.
10 Such bags to be taken and paid for as goods. Broken cakes and/or meal to be taken and paid for as cakes.
11
12 2. QUANTITY……………………………………………………………………………………………………………………………………………………………………..
13 Sellers have the option of shipping up to 5% more or less. In the event of more than one shipment being
14 made, each shipment shall be considered a separate contract, but the margin on the mean quantity sold
15 shall not be affected thereby.
16
17 3. PRICE AND DESTINATION
18 At the price per tonne of 1,000 kilograms gross weight of……………………………………………………………………………………..
19
20 *cost, insurance and freight to…………………………………………………………………………………………………………………………………….
21
22 *cost, insurance and freight free out to……………………………………………………………………………………………………………………..
23
24 *cost and freight to ……………………………………………………………………………………………………………………………………………………….
25
26 * cost and freight free out to ……………………………………………………………………………………………………………………………………….
27
28 4. BROKERAGE………………………………per tonne, to be paid by Sellers on the mean contract quantity, goods
29 lost or not lost, contract fulfilled or not fulfilled unless such non-fulfilment is due to the cancellation of the
30 contract under the terms of the Prevention of Shipment Clause. Brokerage shall be due on the day
31 shipping documents are exchanged or, if the goods are not appropriated then brokerage shall be due on
32 the 30th consecutive day after the last day for appropriation.
33
34 5. QUALITY
35 *Warranted to contain …………………………………………………………………………………………at time and place of discharge.
36
37 *Official………………………………………………………………… certificate of inspection, at time of loading into the
38 ocean carrying vessel, shall be final as to quality.
39 Condition. Shipment shall be made in good condition.
40
41 6. PERIOD OF SHIPMENT
42 As per bill(s) of lading dated or to be dated ……………………………………………………………………………………………………………..
43 The bill(s) of lading to be dated when the goods are actually on board. Date of the bill(s) of lading shall be
44 accepted as proof of date of shipment in the absence of evidence to the contrary. In any month containing
45 an odd number of days, the middle day shall be accepted as being in both halves of the month.
46
47 7. SALES BY NAMED VESSELS
48 For all sales by named vessels, the following shall apply: –
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49 (a) Position of vessel is mutually agreed between Buyers and Sellers;
50 (b) The word “now” to be inserted before the word “classed” in the Shipment and Classification Clause;
51 (c) Appropriation Clause cancelled if sold “shipped”.
52
53 8. SHIPMENT AND CLASSIFICATION
54 Shipment from……………………………………………………………………………………………………………………………………………………………….
55 direct or indirect, with or without transhipment by first class mechanically self-propelled vessel(s)
56 suitable for the carriage of the contract goods, classed in accordance with the Institute Classification
57 Clause of the International Underwriting Association in force at the time of shipment.
58
59 9. NOMINATION OF VESSEL(S) FOR CONTRACTS CONCLUDED ON C & F/C&FFO TERMS
60 (a) At a date agreed between the Parties but in any event prior to the commencement of loading, Sellers
61 shall nominate the intended carrying vessel(s) to Buyers.
62 (b) Sellers are entitled to substitute the nomination(s) provided that the substituting vessel(s) complies
63 with the terms of this clause.
64
65 10. EXTENSION OF SHIPMENT
66 The contract period for shipment, if such be 31 days or less, shall be extended by an additional period of
67 not more than 8 days, provided that Sellers serve notice claiming extension not later than the next
68 business day following the last day of the originally stipulated period. The notice need not state the
69 number of additional days claimed.
70 Sellers shall make an allowance to Buyers, to be deducted in the invoice from the contract price, based on
71 the number of days by which the originally stipulated period is exceeded, in accordance with the following
72 scale: –
73 1 to 4 additional days, 0.50%;
74 5 or 6 additional days, 1%;
75 7 or 8 additional days 1.50% of the gross contract price.
76 If, however, after having served notice to Buyers as above, Sellers fail to make shipment within such 8
77 days, then the contract shall be deemed to have called for shipment during the originally stipulated period
78 plus 8 days, at contract price less 1.50%, and any settlement for default shall be calculated on that basis. If
79 any allowance becomes due under this clause, the contract price shall be deemed to be the original
80 contract price less the allowance and any other contractual differences shall be settled on the basis of such
81 reduced price.
82
83 11. APPROPRIATION
84 (a) Notice of appropriation shall state the vessel’s name, the presumed weight shipped, and the date or the
85 presumed date of the bill of lading.
86 (b) The notice of appropriation shall within ………………. consecutive days from the date of the bill(s) of
87 lading be served by or on behalf of the Shipper direct on his Buyers or on the Selling Agent or Brokers
88 named in the contract. The Non-Business Days Clause shall not apply.
89 (c) Notice of appropriation shall, within the period stated in sub-clause (b) be served by or on behalf of
90 subsequent Sellers on their Buyers or on the Selling Agent or Brokers named in the contract, but if notice
91 of appropriation is received by subsequent Sellers on the last day or after the period stated in sub-clause
92 (b) from the date of the bill of lading, their notice of appropriation shall be deemed to be in time if served:
93 (1) On the same calendar day, if received not later than 1600 hours on any business day, or
94 (2) Not later than 1600 hours on the next business day, if received after 1600 hours or on a non95
business day.
96 (d) A notice of appropriation served on a Selling Agent or Brokers named in the contract shall be
97 considered an appropriation served on Buyers. A Selling Agent or Brokers receiving a notice of
98 appropriation shall serve like notice of appropriation in accordance with the provisions of this clause.
99 Where the Shipper or subsequent Sellers serves the notice of appropriation on the Selling Agent, such
100 Selling Agent may serve notice of appropriation either direct to the Buyers or to the Brokers.
101 (e) The bill of lading date stated in the notice of appropriation shall be for information only and shall not
102 be binding, but in fixing the period laid down by this clause for serving notices of appropriation the actual
103 date of the bill of lading shall prevail.
104 (f) Every notice of appropriation shall be open to correction of any errors occurring in transmission,
105 provided that the sender is not responsible for such errors, and for any previous error in transmission
106 which has been repeated in good faith.
107 (g) Should the vessel arrive before receipt of the appropriation and any extra expenses is incurred
108 thereby, such expenses shall be borne by Sellers.
109 (h) When a valid notice of appropriation has been received by Buyers, it shall not be withdrawn except
110 with their consent.
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111 (i) In the event of less than 95 tonnes being tendered by any one vessel Buyers shall be entitled to refund
112 of any proved extra expenses for sampling, analysis and lighterage incurred thereby at port of discharge.
113
114 12. PAYMENT
115 (a)Payment….……………% of invoice amount by cash in ………………………………..………………………………………………….
116 * In exchange for and on presentation of shipping documents;
117 * In exchange for shipping documents on or before arrival of the vessel at destination, at Buyers’ option;
118 Sellers, however, have the option of calling upon Buyers to take up and pay for documents on or after
119
120 …………………… consecutive days from the date of the bill(s) of lading.
121 (b)Shipping documents – shall consist of – 1. Invoice. 2. Full set(s) of on board Bill(s) of Lading and/or
122 Ship’s Delivery Order(s) and/or other Delivery Order(s) in negotiable and transferable form. Such other
123 Delivery Order(s) if required by Buyers, to be countersigned by the Shipowners, their Agents or a
124 recognised bank. 3. For CIF/CIFFO terms Policy (ies) and/or sales Insurance Certificate(s) and/or
125 Letter(s) of Insurance in the currency of the contract. The Letter(s) of Insurance to be certified by a
126 recognised bank if required by Buyers. 4. Other documents as called for under the contract. Buyers agree
127 to accept documents containing the Chamber of Shipping War Deviation Clause and/or other recognised
128 official War Risk Clause.
129 (c) In the event of shipping documents not being available when called for by Buyers, or on arrival of the
130 vessel at destination, Sellers shall provide other documents or an indemnity entitling Buyers to obtain
131 delivery of the goods and payment shall be made by Buyers in exchange for same, but such payment shall
132 not prejudice Buyers’ rights under the contract when shipping documents are eventually available.
133 (d) Should Sellers fail to present shipping documents or other documents or an indemnity entitling Buyers
134 to take delivery, Buyers shall take delivery under an indemnity provided by themselves and shall pay for
135 the other documents when presented. Any reasonable extra expenses, including the costs of such
136 indemnity or extra charges incurred by reason of the failure of Sellers to provide such documents, shall be
137 borne by Sellers, but such payment shall not prejudice Buyers’ rights under the contract when shipping
138 documents are eventually available.
139 (e) Should shipping documents be presented with an incomplete set of bill(s) of lading or should other
140 shipping documents be missing, payment shall be made provided that delivery of such missing documents
141 is guaranteed, such guarantee to be countersigned, if required by Buyers, by a recognised bank.
142 (f) Costs of collection shall be for account of Sellers, but if Buyers demand presentation only through a
143 bank of their choice, in that event any additional collection costs shall be borne by Buyers.
144 (g) No obvious clerical error in the documents shall entitle Buyers to reject them or delay payment, but
145 Sellers shall be responsible for all loss or expense caused to Buyers by reason of such error and Sellers
146 shall on request furnish an approved guarantee in respect thereto.
147 (h) Amounts payable under this contract shall be settled without delay. If not so settled, either party may
148 notify the other that a dispute has arisen and serve a notice stating his intention to refer the dispute to
149 arbitration in accordance with the Arbitration Rules.
150 (i) Interest. If there has been unreasonable delay in any payment, interest appropriate to the currency
151 involved shall be charged. If such charge is not mutually agreed, a dispute shall be deemed to exist which
152 shall be settled by arbitration. Otherwise interest shall be payable only where specifically provided in the
153 terms of the contract or by an award of arbitration. The terms of this clause do not override the parties’
154 contractual obligation under sub-clause (a).
155
156 13. DUTIES, TAXES, LEVIES, ETC.
157 Sellers shall customs clear the goods for export. All export duties, taxes, levies, etc., present or future, in
158 country of origin, shall be for Sellers’ account. All import duties, taxes, levies, etc., present or future, in
159 country of destination, shall be for Buyers’ account.
160
161 14. DISCHARGE
162 (a) For CIF/C&F terms, discharge shall be as fast as the vessel can deliver in accordance with the custom
163 of the port, but in the event of shipment being made under liner bill(s) of lading, discharge shall be as fast
164 as the vessel can deliver in accordance with the terms of the bill(s) of lading. The cost of discharge from
165 hold to ship’s rail shall be for Sellers’ account, from ship’s rail overboard for Buyers’ account.
166 (b) For C&FFO/CIFFO terms, the cost of discharge shall be for Buyers’ account.
167
168 Discharge shall be at the average rate of ……………. tonnes per Weather Working Day, Saturdays, Sundays,
169 Holidays Excepted, Unless Used, (WWD SSHEX UU), in which case actual time used to count. Notice of
170 Readiness (NOR) shall be tendered during ordinary office hours on arrival, Whether In Port Or Not,
171 (WIPON), Whether In Berth Or Not, (WIBON), Whether In Free Pratique Or Not, (WIFPON), Whether
172 Customs Cleared Or Not (WCCON) and laytime shall commence at 0800 hours on the next working day.
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173 Rate of demurrage/despatch as per Charter Party. In the event of a time charter, the daily hire rate shall
174 be taken as the rate of demurrage, half despatch.
175 (c) If documents are tendered which do not provide for discharging as above or contain contrary
176 stipulations, Sellers shall be responsible to Buyers for all extra expenses incurred thereby. Discharge by
177 grab(s) shall be permitted unless specifically excluded at time of contract. If shipment is effected by lash
178 barge, then the last day of discharge shall be the day of discharging the last lash barge at the port of
179 destination.
180
181 15. WEIGHING
182 The terms and conditions of GAFTA Weighing Rules No. 123 are deemed to be incorporated into this
183 contract. Unless otherwise agreed, final settlement shall be made on the basis of gross delivered weights
184 at time and place of discharge at Buyers’ expense. If the place of destination is outside the port limits,
185 Buyers agree to pay the extra expenses incurred by Sellers or their agents for weighing. No payment shall
186 be made for increase in weight occasioned by water and/or oil during the voyage. If final at time and place
187 of loading, as per GAFTA registered superintendents’ certificate at Sellers’ choice and expense, (in which
188 case the Deficiency Clause will not apply).
189
190 16. DEFICIENCY
191 Any deficiency in the bill of lading weight shall be paid for by Sellers and any excess over bill of lading
192 weight shall be paid for by Buyers at contract price, (unless the Pro-rata clause applies).
193
194 17. SAMPLING, ANALYSIS AND CERTIFICATES OF ANALYSIS
195 The terms and conditions of GAFTA Sampling Rules No.124 are deemed to be incorporated into this
196 contract. Samples shall be taken at the time of discharge on or before removal from the ship or quay,
197 unless the parties agree that quality final at loading applies, in which event samples shall be taken at time
198 and place of loading. The parties shall appoint superintendents, for the purposes of supervision and
199 sampling of the goods, from the GAFTA Register of Superintendents. Unless otherwise agreed, analysts
200 shall be appointed from the GAFTA Register of Analysts.
201
202 18. INSURANCE
203 18.1 For Contracts Concluded on CIF/CIFFO terms – Sellers shall provide insurance on terms not less
204 favourable than those set out hereunder, and as set out in detail in GAFTA Insurance Terms No.72 viz.:-
205 (a) Risks Covered:-
206 Cargo Clauses (WA), with average payable, with 3% franchise or better terms – Section 2 of Form 72
207 War Clauses (Cargo) – Section 4 of Form 72
208 Strikes, Riots and Civil Commotions Clauses (Cargo) – Section 5 of Form 72
209 (b) Insurers – The insurance to be effected with first class underwriters and/or companies who are
210 domiciled or carrying on business in the United Kingdom or who, for the purpose of any legal proceedings,
211 accept a British domicile and provide an address for service of process in London, but for whose solvency
212 Sellers shall not be responsible.
213 (c) Insurable Value – Insured amount to be for not less than 2% over the invoice amount, including freight
214 when freight is payable on shipment or due in any event, ship and/or cargo lost or not lost, and including
215 the amount of any War Risk premium payable by Buyers.
216 (d) Freight Contingency – When freight is payable on arrival or on right and true delivery of the goods and
217 the insurance does not include the freight, Sellers shall effect insurance upon similar terms, such
218 insurance to attach only as such freight becomes payable, for the amount of the freight plus 2%, until the
219 termination of the risk as provided in the above mentioned clauses, and shall undertake that their policies
220 are so worded that in the case of particular or general average claim the Buyers shall be put in the same
221 position as if the c.i.f. value plus 2% were insured from the time of shipment.
222 (e) Certificates/Policies – Sellers shall serve all policies and/or certificates and/or letters of insurance
223 provided for in this contract, (duly stamped if applicable) for original and increased value (if any) for the
224 value stipulated in (c) above. In the event of a certificate of insurance being supplied, it is agreed that such
225 certificate shall be exchanged by Sellers for a policy if and when required and such certificate shall state
226 on its face that it is so exchangeable. If required by Buyers, letter(s) of insurance shall be guaranteed by a
227 recognised bank, or by any other guarantor who is acceptable to Buyers.
228 (f) Total Loss – In the event of total or constructive total loss, or where the amount of the insurance
229 becomes payable in full, the insured amount in excess of 2% over the invoice amount shall be for Sellers’
230 account and the party in possession of the policy (ies) shall collect the amount of insurance and shall
231 thereupon settle with the other party on that basis.
232 (g) Currency of Claims – Claims to be paid in the currency of the contract.
233 (h) War and Strike Risks Premiums – Any premium in excess of 0.50% to be for account of Buyers. The
234 rate of such insurance not to exceed the rate ruling in London at time of shipment or date of vessel’s
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235 sailing whichever may be adopted by underwriters. Such excess premium shall be claimed from Buyers,
236 wherever possible, with the Provisional Invoice, but in no case later than the date of vessel’s arrival, or not
237 later than 7 consecutive days after the rate has been agreed with underwriters, whichever may be the
238 later, otherwise such claim shall be void unless, in the opinion of Arbitrators, the delay is justifiable.
239 Sellers’ obligation to provide War Risk Insurance shall be limited to the terms and conditions in force and
240 generally obtainable in London at time of shipment.
241 (i) Where Sellers are responsible for allowances or other payments to Buyers under Rye Terms or other
242 contractual terms, (and which risks are also covered by the insurance provided by Sellers), the Buyers, on
243 receipt of settlement, shall immediately return to Sellers the insurance documents originally received
244 from them and shall, if required, subrogate to Sellers all right of claim against the Insurers in respect of
245 such matters.
246 18.2 For Contracts Concluded on C & F/C&FFO terms Buyers shall be responsible for obtaining
247 insurance cover as per Clause 18.1 above and shall, if required by Sellers, provide evidence to Sellers prior
248 to the commencement of loading that they have obtained suitable cover. If Buyers refuse or fail to provide
249 evidence Sellers are entitled (but not obliged) to cover insurance on the same terms at the Buyers’
250 expense
251
252 19. PREVENTION OF SHIPMENT
253 “Event of Force Majeure” means (a) prohibition of export or other an executive or legislative act done by or on
254 behalf of the government of the country of origin or of the territory where the port or ports named herein is/are
255 situate, restricting export, whether partially or otherwise, or (b) blockade, or (c) acts of terrorism, or (d)
256 hostilities, or (e) strike, lockout or combination of workmen, or (f) riot or civil commotion, or (g) breakdown of
257 machinery, or (h) fire, or (i) ice, or (j) Act of God, or (k) unforeseeable and unavoidable impediments to
258 transportation or navigation, or (l) any other event comprehended in the term “force majeure”.
259
260 Should Sellers’ performance of this contract be prevented, whether partially or otherwise, by an Event of Force
261 Majeure, the performance of this contract shall be suspended for the duration of the Event of Force Majeure,
262 provided that Sellers shall have served a notice on Buyers within 7 consecutive days of the occurrence or not
263 later than 21 consecutive days before commencement of the shipment period, whichever is later, with the
264 reasons therefor.
265
266 If the Event of Force Majeure continues for 21 consecutive days after the end of the shipment period, then
267 Buyers have the option to cancel the unfulfilled part of the contract by serving a notice on Sellers not later than
268 the first business day after expiry of the 21 day period.
269
270 If this option to cancel is not exercised then the contract shall remain in force for an additional period of 14
271 consecutive days, after which, if the Event of Force Majeure has not ceased, any unfulfilled part of the contract
272 shall be automatically cancelled.
273
274 If the Event of Force Majeure ceases before the contract or any unfulfilled part thereof can be cancelled, Sellers
275 shall notify Buyers without delay that the Event of Force Majeure has ceased. Sellers shall be entitled, from the
276 cessation, to as much time as was left for shipment under the contract prior to the occurrence of the Event of
277 Force Majeure. If the time that was left for shipment under the contract is 14 days or less, a period of 14
278 consecutive days shall be allowed.
279
280 The burden of proof lies upon Sellers and the parties shall have no liability to each other for delay and/or non281
fulfilment under this clause, provided that Sellers shall have provided to Buyers, if required, satisfactory
282 evidence justifying the delay or non-fulfilment.
283
284 20. NOTICES
285 All notices required to be served on the parties pursuant to this contract shall be communicated rapidly in
286 legible form. Methods of rapid communication for the purposes of this clause are defined and mutually
287 recognised as: – either telex, or letter if delivered by hand on the date of writing, or telefax, or E-mail, or
288 other electronic means, always subject to the proviso that if receipt of any notice is contested, the burden
289 of proof of transmission shall be on the sender who shall, in the case of a dispute, establish, to the
290 satisfaction of the arbitrator(s) or board of appeal appointed pursuant to the Arbitration Clause, that the
291 notice was actually transmitted to the addressee. In case of resales/repurchases all notices shall be served
292 without delay by sellers on their respective buyers or vice versa, and any notice received after 1600 hours
293 on a business day shall be deemed to have been received on the business day following. A notice to the
294 Brokers or Agent shall be deemed a notice under this contract.
295
296
297
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298 21. NON BUSINESS DAYS
299 Saturdays, Sundays and the officially recognised and/or legal holidays of the respective countries and any
300 days, which GAFTA may declare as non business days for specific purposes, shall be non business days.
301 Should the time limit for doing any act or serving any notice expire on a non business day, the time so
302 limited shall be extended until the first business day thereafter. The period of shipment shall not be
303 affected by this clause.
304
305 22. DEFAULT
306 In default of fulfilment of contract by either party, the following provisions shall apply: –
307 (a) The party other than the defaulter shall, at their discretion have the right, after serving notice on the
308 defaulter to sell or purchase, as the case may be, against the defaulter, and such sale or purchase shall
309 establish the default price.
310 (b) If either party be dissatisfied with such default price or if the right at (a) above is not exercised and
311 damages cannot be mutually agreed, then the assessment of damages shall be settled by arbitration.
312 (c) The damages payable shall be based on, but not limited to, the difference between the contract price
313 and either the default price established under (a) above or upon the actual or estimated value of the
314 goods, on the date of default, established under (b) above.
315 (d) In no case shall damages include loss of profit on any sub contracts made by the party defaulted
316 against or others unless the arbitrator(s) or board of appeal, having regard to special circumstances, shall
317 in his/their sole and absolute discretion think fit.
318 (e) Damages, if any, shall be computed on the quantity appropriated if any but, if no such quantity has
319 been appropriated then on the mean contract quantity, and any option available to either party shall be
320 deemed to have been exercised accordingly in favour of the mean contract quantity.
(f)
329
321 Default may be declared by Sellers at any time after expiry of the contract period, and the default date shall
322 then be the first business day after the date of Sellers’ advice to their Buyers. If default has not already been
323 declared then (notwithstanding the provisions stated in the Appropriation Clause) if notice of appropriation has
324 not been served by the 10th consecutive day after the last day for appropriation laid down in the contract, where
325 the Appropriation Clause provides for 7 or more days for service of the appropriation, or if notice of
326 appropriation has not been served by the 4th business day after the last day for appropriation laid down in the
327 contract where the Appropriation Clause provides for less than 7 days for service of the appropriation, the
328 Sellers shall be deemed to be in default, and the default date shall then be the first business day thereafter.
330 23. CIRCLE
331 Where Sellers re-purchase from their Buyers or from any subsequent buyer the same goods or part
332 thereof, a circle shall be considered to exist as regards the particular goods so re-purchased, and the
333 provisions of the Default Clause shall not apply. (For the purpose of this clause the same goods shall mean
334 goods of the same description, from the same country of origin, of the same quality, and, where applicable,
335 of the same analysis warranty, for shipment to the same port(s) of destination during the same period of
336 shipment). Different currencies shall not invalidate the circle.
337 Subject to the terms of the Prevention of Shipment Clause in the contract, if the goods are not
338 appropriated, or, having been appropriated documents are not presented, invoices based on the mean
339 contract quantity shall be settled by all Buyers and their Sellers in the circle by payment by all Buyers to
340 their Sellers of the excess of the Sellers’ invoice amount over the lowest invoice amount in the circle.
341 Payment shall be due not later than 15 consecutive days after the last day for appropriation, or, should the
342 circle not be ascertained before the expiry of this time, then payment shall be due not later than 15
343 consecutive days after the circle is ascertained.
344 Where the circle includes contracts expressed in different currencies the lowest invoice amount shall be
345 replaced by the market price on the first day for contractual shipment and invoices shall be settled
346 between each Buyer and his Seller in the circle by payment of the differences between the market price
347 and the relative contract price in currency of the contract.
348 All Sellers and Buyers shall give every assistance to ascertain the circle and when a circle shall have been
349 ascertained in accordance with this clause same shall be binding on all parties to the circle. As between
350 Buyers and Sellers in the circle, the non presentation of documents by Sellers to their Buyers shall not be
351 considered a breach of contract. Should any party in the circle prior to the due date of payment commit
352 any act comprehended in the Insolvency Clause of his contract, settlement by all parties in the circle shall
353 be calculated at the closing out price as provided for in the Insolvency Clause, which shall be taken as a
354 basis for settlement, instead of the lowest invoice amount in the circle. In this event respective Buyers
355 shall make payment to their Sellers or respective Sellers shall make payment to their Buyers of the
356 difference between the closing out price and the contract price.
357
358 24. PRO RATA
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359 (a) Should any of the above mentioned quantity form part of a larger quantity of the same or a different
360 period of shipment of bags of the same mark, or of a similar quality, whether in bags or bulk or whether
361 destined to more than one port, no separation or distinction shall be necessary.
362 (b) All loose collected, damaged goods and sweepings shall be shared by and apportioned pro rata in kind
363 between the various Receivers thereof at the port of discharge named in the contract, buying under
364 contracts containing this clause. In the event of this not being practicable or any of them receiving more or
365 less than his pro rata share or apportionment, he shall settle with the other(s) on a pro rata basis in cash
366 at the market price and each Receiver shall bear his proportion of the depreciation in market value. The
367 pro rata statement shall be established by the Sellers or their Representatives in conjunction with the
368 Receivers or their Representatives.
369 (c) The above pro rata apportionment between Receivers shall have no bearing on the establishment of
370 final invoices with Sellers and for the purpose of these invoices, the total quantity of loose collected,
371 damaged goods and sweepings shall be regarded as delivered to those Receivers who did not receive their
372 full invoiced quantity.
373 (d) In the case of excess or deficiency, the difference between the invoiced and the total delivered quantity
374 shall be settled at the market price by final invoices to be rendered by Receivers, who have received more
375 or less than that paid for, to their immediate Sellers without taking into consideration the above pro rata
376 apportionment between Receivers.
377 (e) If an excess quantity is delivered to one or more Receiver and a deficient quantity is delivered to one
378 or more Receiver, the excess and deficiency shall be settled between them at the market price. Invoices
379 shall be established with immediate Sellers for any balance resulting from this settlement.
380 (f) All Shippers, Sellers and Buyers of any part of such larger quantity as aforesaid under contracts
381 containing this clause shall be deemed to have entered into mutual agreements with one another to the
382 above effect, and to agree to submit to arbitration all questions and claims between them or any of them in
383 regard to the execution of this clause as aforesaid in accordance with the Arbitration Clause of this
384 contract. Sellers and Buyers shall serve all reasonable assistance in execution of this clause. All Sellers
385 shall be responsible for the settlement by the respective Buyers in accordance with this clause within a
386 reasonable time.
387 (g) The market price wherever mentioned in this clause shall be the market price on the last day of
388 discharge of the vessel in the port of destination, such price to be fixed by arbitration unless mutually
389 agreed.
390 (h) In the event of this clause being brought into operation, any allowances payable in respect of
391 condition, or quality, or under any of the other guarantees contained in this contact, shall be based upon
392 the actual weight received by the Buyers and not on the pro rata weight.
393 (i) In the event of any conflict in terms of apportionment applicable to the port of discharge the method
394 published by GAFTA shall, where applicable, take precedence over sub clauses (b) to (h) above.
395 (j) In the event that sub-clause (a) applies or that the goods subsequently become co mingled, and that the
396 goods were shipped by more than one Shipper and destined for one or more ports of discharge then, after
397 the adjustment between Receivers under the terms of this clause, the Shippers shall settle pro rata
398 between themselves in proportion to their bill of lading quantities. Such settlements shall be made in cash
399 and in the event of two or more discharging ports being involved, then the settlement price shall be the
400 average of the market prices on the last day of discharge in the respective ports.
401
402 25. INSOLVENCY
403 If before the fulfilment of this contract, either party shall suspend payments, notify any of the creditors
404 that he is unable to meet debts or that he has suspended or that he is about to suspend payments of his
405 debts, convene, call or hold a meeting of creditors, propose a voluntary arrangement, have an
406 administration order made, have a winding up order made, have a receiver or manager appointed,
407 convene, call or hold a meeting to go into liquidation (other than for re construction or amalgamation)
408 become subject to an Interim Order under Section 252 of the Insolvency Act 1986, or have a Bankruptcy
409 Petition presented against him (any of which acts being hereinafter called an “Act of Insolvency”) then the
410 party committing such Act of Insolvency shall forthwith serve a notice of the occurrence of such Act of
411 Insolvency on the other party to the contract and upon proof (by either the other party to the contract or
412 the Receiver, Administrator, Liquidator or other person representing the party committing the Act of
413 Insolvency) that such notice was served within 2 business days of the occurrence of the Act of Insolvency,
414 the contract shall be closed out at the market price ruling on the business day following the serving of the
415 notice.
416 If such notice has not been served, then the other party, on learning of the occurrence of the Act of
417 Insolvency, shall have the option of declaring the contract closed out at either the market price on the first
418 business day after the date when such party first learnt of the occurrence of the Act of Insolvency or at the
419 market price ruling on the first business day after the date when the Act of Insolvency occurred.
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420 In all cases the other party to the contract shall have the option of ascertaining the settlement price on the
421 closing out of the contract by re purchase or re sale, and the difference between the contract price and the
422 re purchase or re sale price shall be the amount payable or receivable under this contract.
423
424 26. DOMICILE
425 This contract shall be deemed to have been made in England and to be performed in England,
426 notwithstanding any contrary provision, and this contract shall be construed and take effect in accordance
427 with the laws of England. Except for the purpose of enforcing any award made in pursuance of the
428 Arbitration clause of this contract, the Courts of England shall have exclusive jurisdiction to determine any
429 application for ancillary relief, (save for obtaining security only for the claim or counter-claim), the
430 exercise of the powers of the Court in relation to the arbitration proceedings and any dispute other than a
431 dispute which shall fall within the jurisdiction of arbitrators or board of appeal of the Association
432 pursuant to the Arbitration Clause of this contract. For the purpose of any legal proceedings each party
433 shall be deemed to be ordinarily resident or carrying on business at the offices of The Grain and Feed
434 Trade Association, England, (GAFTA) and any party residing or carrying on business in Scotland shall be
435 held to have prorogated jurisdiction against himself to the English Courts or if in Northern Ireland to have
436 submitted to the jurisdiction and to be bound by the decision of the English Courts. The service of
437 proceedings upon any such party by leaving the same at the offices of The Grain and Feed Trade
438 Association, together with the posting of a copy of such proceedings to his address outside England, shall
439 be deemed good service, any rule of law or equity to the contrary notwithstanding.
440
441 27. ARBITRATION
442 (a) Any and all disputes arising out of or under this contract or any claim regarding the interpretation or
443 execution of this contract shall be determined by arbitration in accordance with the GAFTA Arbitration
444 Rules, No 125, in the edition current at the date of this contract, such Rules are incorporated into and form
445 part of this Contract and both parties hereto shall be deemed to be fully cognisant of and to have expressly
446 agreed to the application of such Rules.
447 (b) Neither party hereto, nor any persons claiming under either of them shall bring any action or other
448 legal proceedings against the other in respect of any such dispute, or claim until such dispute or claim
449 shall first have been heard and determined by the arbitrator(s) or a board of appeal, as the case may be, in
450 accordance with the Arbitration Rules and it is expressly agreed and declared that the obtaining of an
451 award from the arbitrator(s) or board of appeal, as the case may be, shall be a condition precedent to the
452 right of either party hereto or of any persons claiming under either of them to bring any action or other
453 legal proceedings against the other of them in respect of any such dispute or claim.
454 (c) Nothing contained under this Arbitration Clause shall prevent the parties from seeking to obtain
455 security in respect of their claim or counterclaim via legal proceedings in any jurisdiction, provided such
456 legal proceedings shall be limited to applying for and/or obtaining security for a claim or counterclaim, it
457 being understood and agreed that the substantive merits of any dispute or claim shall be determined
458 solely by arbitration in accordance with the GAFTA Arbitration Rules, No 125.
459
460 28. INTERNATIONAL CONVENTIONS
461 The following shall not apply to this contract: –
462 (a) The Uniform Law on Sales and the Uniform Law on Formation to which effect is given by the Uniform
463 Laws on International Sales Act 1967.
464 (b) The United Nations Convention on Contracts for the International Sale of Goods of 1980.
465 (c) The United Nations Convention on Prescription (Limitation) in the International Sale of Goods of 1974
466 and the amending Protocol of 1980.
467 (d) Incoterms.
468 (e) Unless the contract contains any statement expressly to the contrary, a person who is not a party to
469 this contract has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of it.
Sellers……………………………………………………………………………………. Buyers ……………………………………………………………………………
Printed in England and issued by
GAFTA
THE GRAIN AND FEED TRADE ASSOCIATION
9 LINCOLN’S INN FIELDS, LONDON WC2A 3BP