5. CONDITIONS FOR PROCEDURE OF SALE 5.1 The procedure of the sale and delivery of any shipment of Gold Bars pursuant to this Agreement (including, but not limited to, delivery thereof and payment of the Price) is subject to fulfilment of the following conditions: 5.1-1 all representations and warranties of Seller pursuant to this Agreement are true, co Show More...
5. CONDITIONS FOR PROCEDURE OF SALE 5.1 The procedure of the sale and delivery of any shipment of Gold Bars pursuant to this Agreement (including, but not limited to, delivery thereof and payment of the Price) is subject to fulfilment of the following conditions: 5.1-1 all representations and warranties of Seller pursuant to this Agreement are true, correct, complete and not misleading upon signature of this Agreement and shall remain such throughout until the moment of the sale and delivery of all Gold Bars to the Buyer; 5.1-2 The Seller and the Buyer irrevocably confirm, accept and agree to conclude the sale of this agreement on a “DD (refer to definitions in clause 1) service basis” under full control by the nominated Brinks Global Services, DD full Service; 5.1-3 The Seller confirm he is legally registered and hold an active and operating account with LOCAL Security, COUNTRY OF ORIGIN who is an accredited Agency with Brinks Global; 5.1-4 The Buyer confirm he is legally registered and hold an active and operating account with Brinks Global; 5.1-5 The Seller and or the Exporter agree and accept and without contest hereby grant permission to LOCAL Security COUNTRY OF ORIGIN and Brinks Global to verify and confirm directly with Lion Gates Security the sical existence in storage of the Gold Bars, the SKR and the Preliminary Assay Report completed at Origin; 5.1-6 On confirmation and verification of clauses 5.1-3, 5.1-4 and 5.1-5, the Seller shall deliver to LOCAL Security COUNTRY OF ORIGIN the commodity and all relevant ownership documents; 5.1-7 LOCAL Security COUNTRY OF ORIGIN, shall Brinks Global to confirm the receipt of the commodity as per noted in Clause 5.1-6; 5.1-8 Brinks Global, on acceptance of clause 5.1-7, shall inform the Buyer who shall deposit the Advanced Amount ( Origin cost for; Export Taxes, Smelting, Air Freight & Insurance) which shall be either paAL Security COUNTRY OF ORIGIN or by Brinks Global directly to the Governmental Reserve Bank of COUNTRY OF ORIGIN with bank coordinates marked in clause 9.3 and on receipt of the sat the process for the Export Customs Taxes, relevant Export Permits and Export Documentation shall commence at country of Origin. The advance amount shall include Air Freight cost from Port of loading to Port of Discharge; 5.1-9 The Advance Amount shall be deposited into the Buyer’s Brinks Account in favor of the Transaction Code: ………………………. 5.1-10 On completion of clause 5.1-2 to 5.1-9, the sale of the commodity for Export to Country of destination shall be concluded and finalized between LOCAL Security, COUNTRY OF ORIGIN and Brinks Global on a “DD” basis as stated in clause 5.1-2; 5.1-11 Clearance of the Gold Bars by the Import Country customs authorities and shall be under Brinks Global control and strictly following all legal regulations, but always at Seller’s Agent full responsibility that all Export Documentation necessary for import is acceptable to the Import Country’s customs authorities, usually within two (2) Business Days provall documentation required is received, from arrival of the shipment to the Buyer’s Nominated International Airport, in the manner stipulated in Clause 6.4 herein; 5.1-12 Transfer by means of secured transport of the commodity by Brinks Global, to the Buyer’s nominated Assayer or Refinery under the terms stipulated in Clause 6.1 herein; 5.1-13 The Buyer irrevocably acknowledge, agree and accept to pay the Seller’s Mandate, Mr…………………………., the amount of Two Thousand ($XXXX US) American Dollars per kilogram for each tranche shipment delivered to HONG KONG, either in cash and or a directly to the Seller’s Mandate nominated Bank Account and in doing so, the Seller acknowledge, accept and agree to deducted the sa from the Final Commercial Invoice; 5.1-14 Assay of the Gold Bars by the Buyer’s nominated Refinery at its premises, within two (2) Business Days (if the gold bars are in excess of 2.5kg plus weight each and total weight is not more than 100Kg then the Assay Report may take longer) from clearance by the Import Country customs authorities, of the Assay Result confirming also that saars meet the Specifications with a margin in relation to the ICC purity standards (the Assay Result to be notified in writing by the Buyer to the Seller and their respective Agents. In case the Seller sends any shipment of gold in a nonhomogeneous form, then the Seller (or the Buyer on behalf of the Seller pursuant to a mandate given by this agreement by the Seller to the Buyer hereby) shall instruct the refinery to: (a) transfer the gold to a Refinery or a Smelting Company, in order to be re-smelted or re-refined. After re-smelting or re-refining, the Gold will be placed in sealed boxes and the Seller from that point on will not be able to touch the gold and in case the seal has been tampered with, the smelting or refining and weighing process will have to be done again at the Seller’s expense. The smelting or refining and weighing can be done in the presence of the Seller or one (and only one) of his representatives, if the Seller so requires; and (b) to receive the smelted or refined Gold Bars and transfer such back to the Assayer or Refinery in order for the Assayer to perform the necessary assay for the issuance of the Assay Result (the Assay Result to be notified in writing by the Buyer to the Seller pursuant to Clause 5.1-10) and the Assayer or the Refinery or the Smelting Company to perform the necessary net weight for the issuance of the Net Weight Report. It is acknowledged and accepted that, if the bars are not homogeneous and need to be smelted or refined, then, one additional Business Day is required for the smelting or refining of each 100Kg. The Seller shall be solely responsible for the implementation and shall take all necessary actions to this end. The previous sentence notwithstanding, any and all associated costs incurred for the transfer of the Gold Bars to the Refinery, their smelting or refining and their return to the Buyer’s nominated Assayer or Refinery, as stipulated above, shall be borne and pa Buyer on behalf of the Seller and shall be set-off and deducted from the Final Commercial Invoice amount; 5.1-15 Weighting and Purity of the Gold Bars and issuance of the final actual net weight and purity report by the Assayer or the Refinery or the Smelting Company (the “Net Weight Report” and Purity) and will be uncontested and accepted by Seller and Buyer as final. Weighting and purity of the Gold Bars shall be performed in the presence of the Seller and the Buyer or their authorized representatives in this agreement, should they choose to be present; 5.1-16 Written notification by fax or from the Buyer to the Seller (or their authorized representatives in this agreement), not later than one (1) Business Day following the latest of (a) issuance of the Assay Result or (b) issuance of the Net Weight Report, informing the Seller of: (i) the Assay Result and the Net Weight Report; and (ii) the Price of the shipment of Gold Bars as per the calculation of Annex B herein; 5.1-17 Issuance and delivery by the Seller to the Buyer (or their authorized representatives in this agreement) of the Final Commercial Invoice, for an amount equal to the Price, as such has been determined as per the by the calculation of Annex B herein and signature of such by the Buyer and the Seller (or their authorized representatives in this agreement) in the presence of one of the Buyer’s Bank officers and or Assayer’s representative or Refinery’s representative in the Import Country in order to automatically complete the transfer of ownership (“Final Commercial Invoice”); 5.1-18 The Buyer agrees that the Seller is entitled, at his option, to be represented by his authorized representative namely Brinks Global in this agreement during Customs Clearance at the Buyer’s Nominated Airport. The Refinery agrees, the Seller’s representative is authorized to accompany the transport of the gold to the Buyer’s Nominated Refinery and to witness smelting or refining of the gold and verification of the purity and or taking samples by the Assayer in order to process them in his laboratory; 5.2 In relation to the conditions mentioned in Clauses 5.1-2 to 5.1-17 (inclusive), fulfilment of each condition (beginning with the one mentioned in Clause 5.1-2) is a requirement in order for the fulfilment of the next one. 5.3. In case any of the conditions is not fulfilled properly and punctually or in case any shipment of Gold Bars is not sent as per the time schedule mentioned in Clause 8 of this Agreement then: (a) the sale of the respective shipment of Gold Bars shall not be consummated and consequently transfer of ownership and possession of the saars from the Seller to the Buyer shall not be effected and the Buyer shall have the right to terminate the Agreement with immediate effect by a unilateral written notification to the Seller and only after paying for all the costs incurred so far. In case of non-fulfilment of the SPA conditions or in case any shipment of Gold Bars is not sent as per the time schedule mentioned in Clause 8 of this Agreement , then the Buyer, in addition to its right to terminate the Agreement by a unilateral written notification to the Seller, it shall have the right to collect any damages and losses (including loss of opportunity, potential costs pa Buyer pursuant to this Agreement in relation to customs clearance, security, transport, storage, smelting or refining, assaying, and all other expenses) incurred, such indemnification being cons fair and reasonable by the Parties; and (ii) the Seller shall be obliged to ship the Gold Bars back to the origin airport at its own expenses (if such Gold Bars have been shipped). 5.4. The Buyer may (but in any case is not obliged to) waive fulfilment of any conditions stipulated in Clause 5.1-2 herein by a unilateral written notification to the Seller. 5.5 The Seller hereby expressly and unreservedly agrees and accepts the procedure in relation to the issuance of the Assay Result and Net Weight Report and notifications of its results by the Buyer as fair, reasonable and in accordance with the Parties’ business arrangement and accord and waives any right to dispute the content of such. Moreover, the Parties acknowledge and accept that the maximum of Assay Results for each Gold Bar (assuming only that each Gold Bar is homogenous) that can be performed within one (1) day is one hundred (100). So, if the Gold Bars are 1Kg each, then this means that a total of only 100Kg of gold can be assayed per day.
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