CONFIDENTIAL TREATMENT REQUESTED FOR ALL ([ ]) BRACKETED INFORMATION. THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
DATED 01.10.1998
(1)Philipp Brother Chemicals Inc
(2)BOC Limited
AGREEMENT
FOR
SUPPLY OF
CALCIUM CARBIDE
1
INDEX
Clause Number Heading
------------- -------
1 Definitions
2 Supply of Products
3 Duration and Termination
4 Volumes
5 Price
6 Purchasing Procedures
7 Conditions of Sale
8 Force Majeure
9 General Provisions
Schedule
--------
1 Specification
2 Conditions of Sale
2
THIS AGREEMENT is made the 1 day of October 1998.
BETWEEN
(1) Philipp Brothers Chemicals, Inc. with principal offices at
0 Xxxxxx Xxxxx, Xxxx Xxx, XX 00000 XXX (PB)
(2) BOC Limited, a British company with principal offices at The
Xxxxxxxxx Centre, 10 Xxxxxxxxx Road, The Surrey Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxx XX0 0XX (BOC)
IT IS AGREED as follows:
I. Definitions
1.1 In this Agreement:
"Products" means calcium carbide to the specification set out in
Schedule 1.
"Year" means any period commencing on 1 October and ending on the
following 30 September.
"Tonne" means a metric tonne, being 1000 kilograms, or 2205 pounds.
"Container" means a bulk package for supply of Products holding
between 1.45 and 1.65 tormes.
2. Supply of Products
2.1 PB shall supply and BOC shall purchase Products in accordance with
the provisions of this Agreement.
2.2 Products shall, unless otherwise agreed in writing, be delivered to
BOC's acetylene works in the United Kingdom or, in the case of
deliveries to Ireland, on a CIF Dublin basis.
2.3 For each shipment a certificate of analysis containing the data shown
in Schedule I will be faxed to the BOC department which has ordered
the Products.
2.4 Delivery shall be in accordance with Incoterms 1990.
2.5 Products delivered shall conform to the BOC Calcium Carbide Purchase
Specification attached to this Agreement as schedule I, or the latest
version thereof.
2.6 Products shall be packed and labeled safely and in accordance with
the detail set out on
3
schedule 1 of this agreement.
2.7 Arrangements for the supply of Products to other BOC's Group
companies around the world shall be covered, [
]
3. Duration and Termination
3.1 This Agreement shall be for an initial period commencing
on 1 1998 and ending [
]
3.2 Notwithstanding the provisions of clause 3.1 BOC may terminate this
Agreement forthwith by notice in writing sent to PB upon the
bankruptcy, insolvency or liquidation of PB (except for a voluntary
liquidation to effect a reconstruction in such manner that the
resulting company effectively assumes the obligations imposed on PB
under this Agreement);
3.3 Notwithstanding the provisions of 3.1, either party may terminate
this Agreement forthwith by notice in writing sent to the other if:
3.3.1 the other party commits a material irremediable breach of
any term of this Agreement;
3.3.2 the other party remains in breach of any other term of this
Agreement 50 days after the aggrieved party has given notice
to remedy the same.
3.4 Upon termination of this Agreement from any cause:
3.4.1 all BOC's debts to PB shall become due and payable;
3.4.2 no rights already accrued shall be affected but neither
party shall be liable to the other for loss, damage or
compensation arising out of lawful termination;
3.4.3 [
]
4. Volumes
4.1 PB shall supply BOC's total requirements of Products for consumption
in [ ]
4
4.2 BOC estimates that its demand for Products will be [ ]
in the year commencing 1 October 1998. This volume is solely an
estimate and shall in no way be considered legally binding on BOC but
is purely to assist PB in planning.
5. Price
5.1 For shipments made from the date of this Agreement until and
including 30 September 1999 or beyond if no amendment is requested,
the price shall be:
1. [ ]
2. [ ]
The price invoiced shall be that ruling on the date of delivery and
will be subject to any charged tax and/or government duty or tax
applicable, unless agreed otherwise in writing.
5.2 On 1 October 1999 and each subsequent 1 October for the duration of
the Agreement the price of the Products is liable to amendment by the
lowest of the following:
a) [
]
b) [
]
c) [ ]
PB shall give BOC a minimum of two months written notice of their
intended variation in price.
5.3 [
]
5.4 [
]
6. Purchasing Procedures
6.1 In order to assist with PB's production and delivery planning, BOC
shall during June in
5
each year provide to PB an estimate of the volume of Products that it
will require under this Agreement in the next Year, together with an
indication of scheduled delivery times, and such other information as
may be requested that is relevant and non confidential to BOC. This
estimate and schedule shall in no way be considered legally binding
on BOC but is purely to assist PB in planning.
6.2 BOC shall place purchase orders on PB for the volumes of Products it
requires from PB. BOC shall state its delivery requirements and PB
shall use best endeavors to meet such requirements.
6.3 PB shall maintain adequate stocks of Products at all times to supply
BOC's reasonable requirements. PB shall also inform BOC a minimum of
3 months before a planned shutdown and shall ensure, in consultation
with BOC, that enough Products are held in stock exclusively for BOC
to meet BOC's reasonable demand over the expected shutdown and
restart period plus an additional amount to cover a 20% overrun in
down time.
7. Conditions of Sale
7.1 BOC's conditions of purchase shall apply to this Agreement unless
superseded by a clause within this Agreement or its attached
schedules.
7.2 An invoice for the Products shall be issued by the end of the month
of delivery, and payment shall be issued by the end of the month
following the month of invoice.
7.3 Any recommendation or suggestion relating to the use of the goods
made by PB, either in technical literature or in response to specific
enquiry or otherwise, is given in good faith; it is for BOC to
satisfy itself of the suitability of the goods for its own particular
purpose. PB gives no warranty as to the fitness of the goods for any
particular purpose and any implied warranty or condition (statutory
or otherwise) is excluded except insofar as such exclusion is
prevented by law.
7.4 PB's liability in contract or tort for any loss or damage (other than
for death or personal injury) arising directly or indirectly out of
the supply of or use of the goods or the packages in which the goods
are delivered shall be limited to (pound)1,000,000 per instance.
7.5 PB shall provide BOC with health and safety information and product
literature concerning the Products and their use. Should BOC require
any further information or advice in connection with safe use of the
goods in question, BOC shall immediately contact PB.
7.6 The property and risk in the goods shall remain in PB until, and
shall pass to BOC at, delivery. Delivery shall be in accordance with
the provisions of INCOTERMS 1990.
6
7.7 All claims for damage to the Products in transit must be submitted in
writing to PB within 30 days of delivery.
7.8 As soon as is reasonably practical, and in any event within 30 days
of receipt of the goods, BOC shall examine them for the purpose of
ascertaining whether they conform to the Agreement. If such goods do
not conform, BOC shall immediately give written notice thereof to PB
with sufficient particulars.
7.9 PB warrants that clause 1.3 within the schedule 1 shall apply and,
where appropriate, credits will be issued for Products Supplied with
low yields.
8. Force Majeure
Neither party shall be liable to the other for any loss or damage
which may be suffered as a direct or indirect result of performance
by that party being prevented, hindered or delayed by reason of
circumstances or events beyond that party's reasonable control
including, but not limited to, act of God, war, riot, strike,
lockout, trade dispute or labor disturbance, flood, storm, or
tempest.
If performance is so delayed or prevented for more than 90 days,
either party may terminate this Agreement with immediate effect.
During this period BOC may purchase its requirements for Products
elsewhere.
9. General Provisions
9.1 Any notice hereunder shall be in the English language and shall be
sent to the latest advised contact and address responsible for
managing the Agreement. Currently they are:
Xxxx Xxxxxxx Xxxxxx Xxxxxxx
BOC Gases Ferro Metal and Chemical Corp. Ltd.
The Xxxxxxxxx Centre 000 Xxxxx Xxxx
00 Xxxxxxxx Xxxx Xxxxxxx
Xxx Xxxxxx Research Park RG1 4EX
Xxxxxxxxx Xxxxxx
XX0 0XX
Fax: x00 (0) 0000 000000 x00 (0) 000 000 00000
Tel:. x00 (0) 0000 000000 x00 (0) 000 000 0000
9.2 No variation, modification or waiver of any of the terms of this
Agreement shall be valid unless made in writing and signed on behalf
of both parties.
9.3 Neither Party can assign this Agreement without prior written consent
of the other Party,
7
such consent shall not be withheld unreasonably.
9.4 The creation, performance and discharge of this Agreement shall be
governed by the laws of England and its interpretation shall be
subject to the non-exclusive jurisdiction of the English Courts.
9.5 All details of this Agreement and the activities of both companies
associated with it shall remain confidential between the two parties
until one year after the termination of the Agreement
9.6 The safety contacts for this contract are
Xxxx Xxxx X X Xxxxx
XXX Xxxxx Xxxx Smelteverk AS
The Xxxxxxxxx Centre XX Xxx 00
00 Xxxxxxxxx Xxxx 0000 Xxxx
Xxx Xxxxxx Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx
XX0 0XX
Fax: x00 (0) 0000 000000 +
Tel: x00 (0) 0000 000000 x00 000 00000
Attachments to Agreement
SCHEDULE 1. CALCIUM CARBIDE PURCHASE SPECIFICATION
SCHEDULE 2. BOC LIMITED CONDITIONS OF PURCHASE
IN WITNESS whereof this Agreement has been duly executed after the
Schedules
Signed for and on behalf of Buyer Signed for and on behalf of Seller
/s/ Xxxx Xxxxxxx /s/ Xxxx X. Xxxxxxxx
Name X. Xxxxxxx Name X. X. Xxxxxxxx
------------------- ------------------
Position Supply Manager Position Pres.
--------------- ---------------
Date 4 Aug '98 Date Sept. 7, 1998
-------------------- ------------------
8
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Date: 11/06/96
Page: 1 of 4
Document Title : CALCIUM CARBIDE PURCHASE SPECIFICATION
--------------------------------------------------------------------------------
1.0 Product
1.1 General
[
]
1.2 Size and Dust content
1.2.1 Graded Size
[
]
1.2.2 Limits of oversize and undersize
[ ]
[ ]
[ ]
[ ]
[ ]
[
]
1.2.3 Dust
[
]
9
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Date: 11/06/96
Page: 2 of 4
Document Title : CALCIUM CARBIDE PURCHASE SPECIFICATION
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1.3 Gas Yield
1.3.1 [ ]
[
]
1.3.2 [ ]
[
]
1.4 Purity of Gas Generated
1.4.1 [ ]
[
]
1.4.2 [ ]
[ ]
1.4.3 [ ]
[ ]
1.5 Residual Products
[
]
10
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Date: 11/06/96
Page: 3 of 4
Document Title : CALCIUM CARBIDE PURCHASE SPECIFICATION
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1.5.1 [ ]
[
]
1.5.2 [ ]
[
]
1.6 Test Certificate
For each consignment, the manufacturer shall provide a Test Certificate
showing the average gas yield, phosphine, hydrogen sulphide, ammonia, arsenic,
silicon and metallic residual content, determined in their laboratory, plus
size grading and net weight. The specific packing date, batch number to which
the certificate refers must be clearly designated on the certificate.
1.7 Packaging
[
]
[ ]
1.8 Marking and Labeling
Marking and labeling will generally be covered by individual countries
legislation. As a minimum, all drums must be identified with the following:
Trade name (if applicable) & Product description "Calcium carbide"
UN number "UN1402",
Name of Consignee, Name of Supplier, Country of Origin
Emergency contact details
The appropriate Hazard Diamond for flammable solids "Class 4.3"
Mesh Size
11
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Date: 11/06/96
Page: 4 of 4
Document Title : CALCIUM CARBIDE PURCHASE SPECIFICATION
--------------------------------------------------------------------------------
Net Weight
Date of Filling & Batch Number
The (external) shipping container shall be marked on both sides and both ends
by a label or sign bearing the class label and the UN number, such sign to be
not less than 250 mm square.
1.9 Complaints
Any complaints about product quality or packaging will be referred to the
supplier within 30 days of receipt of the shipment at the consignee's plant.
Product which is subject to any complaint shall be quarantined until the issue
is resolved.
12
BOC Limited conditions of purchase
1. Introduction and Definitions
1.1 Incorporation of These Conditions
The following Conditions of Purchase apply to and are deemed to be
incorporated in the Purchase Agreement ("Purchasing Agreement") or
Purchase Order ("Purchase Order") set out overleaf relating to the
supply of goods ("Goods") and / or services ("Services"). Purchasing
Agreements, contracts concluded by call-off Purchase Orders under,
Purchasing Agreements, and contracts concluded by the suppliers
acceptance of independent Purchase Orders are all covered by the
expression "Purchase Contract".
1.2 Exclusion of The Supplier's Conditions
These Conditions exclude any terms and conditions proffered by the
person, firm or company ("the Supplier") with whom the Purchasing
Agreement is made or to whom the Purchase Order is addressed, unless
the contrary is expressly and specifically agreed in writing by BOC.
They are in addition to and without prejudice to BOC's rights at
common law or by statute as purchasers.
1.3 XXX
"XXX" means the BOC Company as stated on the Purchase Order of Purchase
Agreement.
2 General
2.1 Purchase Orders
BOC will be responsible for payment for Goods or Services only if
ordered on an official BOC Purchase Order form.
2.2 Variations
Neither BOC nor the Supplier shall be bound by any variation to a
Purchase Contract, except as agreed in writing by both parties by
means of a Purchasing Agreement Amendment or Purchase Order Amendment
(as appropriate).
2.3 Acceptance
In the case of Purchase Orders calling off Goods or Services under a
Purchasing Agreement, the contract for the Goods or Services in
question shall be complete and binding as soon as the Purchase Order
is received by the Supplier (the Purchasing Agreement being deemed to
constitute a standing offer which is accepted by the Purchase Order).
The terms of the Purchasing Agreement shall apply and prevail over
any of these Conditions or any terms of a Purchase Order which are
inconsistent with the Purchasing Agreement.
13
2.4 Price
2.4.1 Prices shall remain firm and fixed and shall not be subject
to any increase or escalation whatsoever for the duration of
the Purchase Contract (unless a variation to a Purchasing
Agreement is agreed by means of a BOC Purchasing Agreement
Amendment).
2.4.2 Unless otherwise stated in the Purchasing Agreement of
Purchase Order, and subject to 2.4.3 below, the price of
Goods shall be inclusive of the cost of carriage and packing
and the price of Goods or Services shall be inclusive of the
cost of carriage and packing and the price of Goods or
Services shall be inclusive of any duties, taxes (other than
VAT), royalties, tariffs or other impositions chargeable or
liveable on Goods or Services, and of any other sums
whatsoever payable to any person in respect of Goods or
Services.
2.4.3 Where applicable VAT shall be paid by BOC at the rate ruling
at the time of supply.
2.5 Payment
Unless otherwise specified, payment instructions for the Goods or
Services shall normally be issued by the end of the month following
the month of invoice, which shall be rendered promptly after delivery
and acceptance of Goods or performance of Services.
2.6 Termination for breach or Bankruptcy
If the Supplier is in breach of any obligation under a Purchase
Contract or Commits any act of bankruptcy or, being a company, goes
into liquidation, has a receiver appointed or has an administration
order made, then, notwithstanding any previous waiver, BOC shall be
entitled to terminate the Purchase Contract immediately by written
notice, but without prejudice to any then existing rights of either
party, and to enter the Supplier's premises and remove any property
of BOC.
2.7 Assignment and Subletting
Purchase Contracts are made with the Supplier on the basis that the
Goods will be supplied and/or the Services performed by the Supplier
and no assignment or subletting may be made (except in minor
respects) without the specific written consent of BOC.
2.8 Materials Provided by BOC
The supplier shall be fully responsible for any loss or damage to any
free issue materials or to any BOC materials, equipment or other
property whist in the Suppliers possession for any purpose connected
with the Purchase Contract, and will promptly replace or repair as
required by BOC, at the Suppliers own cost, any equipment or other
property lost or damaged by the supplier.
14
2.9 Confidentiality/Proprietary Rights
All plans, drawings, specifications, patterns or other technical
information, artwork or origination provided by BOC, relating to the
Goods or Services and all information provided by BOC or otherwise
acquired by the Supplier relating to BOC's business shall remain the
property of BOC, and (if in documentary form) forthwith upon
completion of the purchase Contract shall be returned to BOC in good
condition. No such plan, drawing, specification, pattern,
information, artwork or origination shall be shown nor its contents
disclosed to any other person, nor shall it be copied or used for any
purpose other than for the completion of the Purchase Contract.
2.10 Public Knowledge, etc.
The provisions of Clause 2.9 shall not apply to information already
known to the Supplier through sources owing no obligation of
confidence to BOC. Or which becomes public knowledge otherwise than
through the default of the Supplier.
2.11 Publicity
The Supplier shall make no reference to BOC in its advertising or
literature or correspondence (other than correspondence concerning
the Purchase Contract) without BOC's prior agreement in writing.
2.12 Indemnity and Insurance
2.12.1 The Supplier shall indemnify BOC against any liability,
loss, cost, expense, damage or injury in consequence of a
defect in design (other than a design made, furnished or
specified by BOC), materials or workmanship or any breach by
the Supplier of a Purchase Contract, save to the extent that
such liability, loss, cost, expense, damage or injury is due
to the negligence of BOC.
2.12.2 Unless otherwise stated in the Purchase Contract, the
Supplier shall be deemed to have arranged for, and the
Supplier's price shall be deemed to include the cost of, all
necessary insurances. In particular, insurance must be
effected for:
(i) Public liability for not less than
(pound)1,000,000 for any one incident.
(ii) Product liability for not less than
(pound)1,000,000 for any one incident
subject to an aggregate of not less than
(pound)2,000,000 each year.
(iii) Employer's Liability Insurance Evidence of
these insurances shall be produced on request.
2.13 Legal Construction
2.13.1 The Purchase Contract, acceptance, all correspondence,
specifications and other documents shall be in the English
Language.
15
2.13.2 These conditions and the Purchase Contract shall be governed
by and construed in accordance with English Law.
2.13.3 Headings to Clauses are for guidance only and do not form
part of these Conditions.
2.13.4 References to Acts in these conditions are deemed to include
regulations thereunder and any amending legislation.
3. Supply of Goods
3.1 Expediting
BOC's staff or nominees shall be given access at all reasonable times
to the Suppliers works and premises, or those of its subcontractors,
in order to view and expedite work in progress.
3.2 Inspection and Training
The Supplier shall comply with the inspection and/or testing
requirements stated in the Purchase Contract. The Supplier is to
advise BOC at least seven days in advance when material will be ready
for inspection and/or testing. BOC's inspection shall not relieve the
Supplier from its guarantee or any obligation or responsibility to
furnish satisfactory material. BOC shall be entitled to waive
inspection at any point of manufacture, without prejudice to its
right to reject unsuitable material or equipment after arrival at
destination.
3.3 Delivery
3.3.1 The Goods, properly packed and secured, shall be delivered
by the Supplier at the time and at the place and in the
manner specified in the Purchase Contract.
3.3.2 The time stipulated for delivery or completion may not be
altered without the express written consent of BOC.
3.3.3 An Advice Note shall be sent by the Supplier to the BOC
address specified on the Purchase Contract on the same day
as the Goods are dispatched. The Advice Note shall reference
the BOC order number, quantities, item numbers, part numbers
and descriptions cross referenced to the Purchase Order and
clearly state the contents of the consignment.
3.3.4 A Delivery Note containing the same information as the
Advice shall accompany the Goods on delivery.
16
3.4 Title and Risk
3.4.1 Title to all or any part of the Goods shall pass to BOC on
the earlier of:
- identification or allocation of such goods to the Purchase
Contract
- payment for such Goods
- delivery of such Goods
3.4.2 Risk in all or any part of the Goods shall be with Supplier
and shall only pass to BOC on delivery of such Goods.
3.5 Rejection
BOC shall be entitled, by notice in writing given within a reasonable
time after delivery, to reject Goods delivered which are not in
accordance with the Purchase Contract.
3.6 Storage
If, for any reason, BOC is unable to accept delivery of the Goods at
the time specified in the Purchase Contract, the Supplier shall, by
prior agreement with BOC, store the Goods and take all reasonable
steps to maintain them in a merchantable condition. BOC shall,
subject to written agreement, reimburse the Supplier for the
reasonable costs of such storage actually incurred.
3.7 Intellectual Property, Patents and Design Work
3.7.1 The Supplier warrants that the Goods to be supplied do not
infringe any intellectual property rights including patents,
designs (whether registered or not), copyright and trade
marks, and undertakes to indemnify BOC against all royalties
or licence fees (to the extent not specifically provided for)
and against all damages, losses or costs suffered by BOC in
respect of any breach of this warranty. The Supplier will give
BOC all such support and assistance as BOC reasonably requires
in defending any claim that the Goods infringe and
intellectual property right. If it should come to BOC's
knowledge that a claim may arise under this warranty. BOC
reserves the right to determine the Purchase Contract
forthwith on written notice and without further liability.
3.7.2 All intellectual property rights, including patents,
trademarks, designs and copyright, arising from work conducted
by the Supplier for the purpose of producing Goods
specifically for BOC shall belong to BOC, unless specifically
agreed otherwise by BOC in writing, and the supplier agrees at
BOC's expense to execute all documents and do all such other
things as may reasonably be required to assign such rights to
BOC. All copies of any designs and drawings and of any other
relevant documentation prepared by the Supplier or any third
party on its behalf for such purpose shall be provided to BOC
on request.
17
3.8 Statutory Requirements
3.8.1 It is condition of the Purchase Contract that the Goods
supplied should conform in all relevant respects with the
requirements of the Health and Safety at Work, etc Xxx 0000
and comply with any other applicable Act, Regulation,
Directive or Code of Practice.
3.8.2 Information and advice regarding the transporting, storage,
operation or use of the Goods, together with notice of
potential hazards and safety precautions to be taken, shall
be provided to BOC in writing with the Goods, unless BOC and
the Supplier agree that they should be provided earlier.
3.9 Printed Supplies and Services
If the Purchase Contract is for the provision of printed supplier's
photographs and/or associated services (referred to in this Clause as
"the Work") then
(i) the Supplier agrees to assign to BOC copyright and property
in the Work prepared by it for BOC under this Purchase
Contract on completion thereof and undertakes to provide BOC,
on request and free of charge with all designs under takes to
provide BOC on request and free of charge with all designs.
drawings, illustrations, film negatives, positives. bromides,
proofs, photographs, special tools (including dies, cutters
and moulds) and any other material associated with the Work.
(ii) if the Supplier assigns or sublets any area of the Work to
any person who is not a party to the Purchase Contract, the
Supplier shall ensure that such person agrees to be bound by
this Condition as though a party to the Purchase Contract
failing to do so, including any claim made by such person
which it could not make if it were a party to the Purchase
Contract.
4. Supply of Services
4.1 Performance
Services shall be performed by competent trained staff to the
reasonable satisfaction of BOC.
4.2 Complaints
Without prejudice to any other rights of BOC, any complaint by BOC
will be investigated immediately by the Supplier and the Supplier
will., upon BOC's written request, as soon as practicable at its own
cost remedy any defects in the Services, or perform the Services
again, to BOC's reasonable satisfaction.
18
4.3 Statutory Requirements
The supplier shall observe the provisions of any statute, regulation
or statutory instrument applicable for the time being to the
Services, including the Health and Safety at Work, etc Xxx 0000.
4.4 Work on Site
If under the terms of the Purchase Contract the Supplier's employees
are required to work on BOC site the following Clauses 4.5 to 4.7
will apply.
4.5 Responsibility
Materials used or to be used are at the Supplier's risk until
completion of the Purchase Contract and acceptance of the work.
4.6 Regulations
The Supplier must at all times abide by BOC's Rules and Regulations
at BOC sites, details of which will be made available by the Branch
or Depot Manager of the site concerned. Particular attention must be
paid to the site safety rules, "No Smoking" requirements and other
warming signs.
4.7 Site Clearance
The Supplier shall when required by BOC's site engineer or nominated
representative, carry away excavated and other unwanted material
arising from the execution of any works by the Supplier and shall
from time to time, as works progresses, remove all surplus materials,
debris, rubbish, temporary erections, etc and shall on completion
leave the site clear and tidy to BOC's satisfaction. These duties
shall be performed at the Supplier's cost.
5. Warranty
[
]
19
