Without limiting any other rights that may be available to the liquidating party (as hereinafter defined), in the event that Buyer/Seller fails to make payment when due of any amount payable to Seller/Buyer under this contract or any other contract outstanding between Seller and Buyer or in the event that a party here to (the defaulting party) is the subject of a bankruptcy, insolvency or other similar proceedings or fails to pay its debts generally as they become due, the other party hereto (the liquidating party) shall have the right, exercisable in its sole discretion and at any time , to liquidate this and any or all other contracts then outstanding between the parties (whether the liquidating party is the Seller or Buyer hereunder) by declaring any or all such contracts terminated (whereupon they shall become automatically terminated, except for obligation to effect payment), calculating the difference, if any between the price specified therein, and the market price for the relevant commodity (as determined by the liquidating party in a commercially reasonable manner at a time or times reasonably determined by the liquidating party), and aggregating or netting such market damages to a single liquidated settlement payment that will be due and payable upon demand therefore
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LIABILITIES:
In no event shall Seller or Buyer be liable for indirect or consequential damages or for specific performance.
WARRANTIES:
Except for the warranty of the title no conditions or warranties express or implied, of merchantability, fitness or suitability of the material, for any particular purpose or otherwise, are made by Seller other than the material conforms, within any tolerances stated, to the description stated herein.
ASSIGNMENT:
Neither Seller nor Buyer shall assign the whole or any part of its rights and obligations hereunder directly or indirectly without the prior written consent of the other party. However Seller shall have the right to assign to its designated financing bank its rights to the proceeds of the sales price payable hereunder. Upon the giving of written notice to the Buyer, Buyer shall confirm to the Seller’s designated financing bank its acknowledgement and agreement to such assignment.
CHOICE OF LAW:
The construction, validity and performance of the agreement shall be governed by English Law to the exclusion of any other law which may be imputed in accordance with Choice of Law Rules applicable in any jurisdiction.
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The United Nations Convention on Contracts for the International Sale of Goods of Vienna, 11 April 1980, shall not apply to this transaction.
ARBITRATION:
Any dispute arising out of or in connection with this agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of conciliation and arbitration of the London Court of International Arbitration, which rules are deemed by to be incorporated by reference into this section. The tribunal shall consist of one arbitrator. The place of arbitration shall be London. The language of arbitration shall be English. The arbitrator shall give a written record of the award and the reasons therefore. The arbitration result shall be final and binding upon both parties and the arbitration fees shall be borne by the losing party.
DEFINITIONS:
The following terms shall have the following meanings when used in this Contract: a) Wet metric ton or wmt means 2,204.62 pounds avoirdupois, natural state. b) Dry metric ton or dmt means 2,204.62 pounds avoirdupois, dry state. c) Dollars and Cents means the lawful currency of the United States of America. d) A Troy Ounce equals 31.1035 grams. e) A Gram equals 1/1000 of a kilogram. f) A Calendar month refers to a named month in the Gregorian calendar. g) A full calendar week refers to the calendar days Monday to and including Friday. h) A business day refers to any calendar day Monday to and including Friday, which is not a
legal and recognised holiday.
i) Metal Bulletin refers to the publication known as \BULLETIN\which is published
twice a week in London by Metal Bulletin Journal, Ltd.
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j) k)
Date of Arrival shall be the date on which the master of the vessel tenders Notice of Readiness, which date is stated on the Statement of Facts prepared at the Port of Discharge and countersigned by Seller or Seller’s representative Normal Office Hours means 8:00 - 17:00 on Monday through Friday.
23. WAIVER:
No party shall be deemed to have waived any right, power or privilege under this agreement unless such waiver is in writing and duly executed by it. No failure or delay in exercising any right hereunder shall be deemed a waiver thereof by any party. No exercise or partial exercise of any right, power or privilege shall preclude any other or further exercise thereof or of any other right, power or privilege.
24. TAXES, DUTIES, CHARGES AND COMMISSIONS:
If applicable, all duties, taxes, charges and commissions levied or assessed in the country of origin on the material and/or freight shall be for Seller's account; and all similar levies or assessments in the country of destination shall be for Buyer's account. 25. 26.
LICENCE CLAUSE:
Buyer guarantees the timely issuance of any import licences or permits if required.
OFF-SET CLAUSE:
Seller shall be entitled but not obliged, at any time or times, with or without notice to the Buyer, to set off any liability, if admitted by Seller, of Seller to the Buyer against any liability, as determined in a commercially reasonable manner by Seller, of the Buyer to Seller (in either case howsoever arising, under whatever contract between the parties and whether any such liability of the Buyer is present or future, liquidated or unliquidated and irrespective of the currency of its denomination) and Seller may for such purpose convert or exchange any currency. Any exercise by Seller of its rights under this clause shall be without prejudice to any other rights or remedies available to Seller under this agreement or otherwise. ENTIRE AGREEMENT:
Notwithstanding anything contained in any other agreement to the contrary this contract No. S.08.ZNCN.MT31468contains the entire agreement between the parties with respect to the subject matter hereof and all representations relating thereto are merged herein.
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尽管包含在其他任何相反的协议，本合同s.08.zncn.mt31468号包含整个当事人之间的协议，就此事和所有陈述有关合并此处。
28. OTHER TERMS: Where not in contradiction to the above, Incoterms 2000 plus latest amendments to apply. This deal is to be kept strictly private and confidential.
Please note your response to this contract is required in writing (fax acceptable) to:
I TRADING AG / Switzerland Telephone: Facsimile: Attention:
For any operational/traffic queries please contact the following: TRADING AG Switzerland Telephone: Facsimile: IN WITNESS WHEREOF, the parties hereto have caused their duly authorised representatives to execute this Contract of Sale and Conditions of Sale as of June 23, 2005 TRADING AG Co., LTD By: By:
Name: Date:
Name: Date: