Degussa Mexico S.A. de C.V. SALES CONTRACT
Exhibit
10.1
Degussa
Mexico S.A. de C.V.
Degussa
Mexico, S.A. de C.V. (hereinafter, the “Seller”) domiciled at Xxxx.
Xxxxxx-Xxxxxxxxxx 0000-XXX, 00000, Xxxxxx, D.F., Republic of Mexico, shall
supply and Minera
Santa Xxxx S De RL De CV.,
(hereinafter
called the Buyer), with an office Xxxxxxxx Xxxxxxxxx #73 Pte. 2do. Piso, Col.
Centro, Caborca, Sonora, Mexico. C.P. 83600 agrees to purchase the following
goods on the terms stated herein and in the Terms of Sale set forth on the
reverse side hereof:
Product
SODIUM
CYANIDE SOLID (hereinafter called the Product) according to packaging
specifications provided in Addendum A
and
minimum product specifications provided in Addendum B
Contract
period
April
1,
2007 to
March
31, 2010 (“Initial Term”) and “Evergreen” beyond
Quantity
100%
of
total yearly requirements estimated @ 800 - 1200 metric tons (100% basis)
Price
See
attached Addendum A
Packaging
See
attached Addendum A
Terms
of payment
See
attached Addendum A
IN
WITNESS WHEREOF
Buyer
and Seller have caused this sales contract to be duly executed.
| SELLER: Degussa Mexico S.A. de C.V.. | ||
| Date: March 2, 2007 |
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| By: | /s/ Xxxxxxxx Xxxxxx | |
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(Print):
Xxxxxxxx
Xxxxxx
Title:
Director
of Sales
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BUYER: Minera
Santa Xxxx S De RL De CV.
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| Date: March 2, 2007 | By: | /s/ Xxxx Xxxxxxxx |
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(Print)
Xxxx
Xxxxxxxx
Title:
Chief Operations Officer
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TERMS
OF SALE
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1.
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PURCHASE
DOCUMENTS.
The terms and conditions of this supply contract (this “Contract”) shall
apply to sales hereunder, whether or not expressly referred to in
each
purchase order, invoice or other document of purchase or delivery
issued
by the Seller or the Buyer. Except as otherwise provided in this
Contract,
no condition, understanding or agreement purporting to modify or
vary the
terms of this Contract shall be binding unless said modification
or
variation is made in writing signed by both parties. This Contract
shall
not be modified by the acknowledgment or acceptance of purchase orders,
invoices or shipping, instruction or other forms or documents containing
terms or conditions at variance with or in addition to those set
forth
herein.
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1
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2.
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SHIPMENTS.
In the event shipments hereunder are to be made over a period of
time,
Buyer shall allow for adequate lead time not to exceed 15 calendar
days
from the reception of the respective purchase orders and shall specify
by
purchase order or otherwise in writing to Seller the quantity, packing
and
delivery dates desired for deliveries of the Product during such
period.
Seller shall comply with Buyer's wishes as so expressed; however,
Seller
shall not be liable for delay or short shipment caused by reasons
beyond
Seller's control and shall not be required to deliver in any month
more
than the monthly quantity specified, or, if none is specified, more
than
the pro rata amount of the total quantity specified.
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| 3. |
LIABILITY.
Upon delivery to Buyer as and at the location specified in Addendum
A
hereto , Buyer assumes all responsibility and liability for loss
and
damage to the Product or resulting from the handling, storage or
use of
the Product. Seller's liability with respect to the Product and under
this
contract shall be limited to the purchases price of the Product supplied
hereunder in respect of which damages are claimed. OTHER THAN AS
SET FORTH
IN THIS PARAGRAPH 3, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY DIRECT,
SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES WHATSOEVER THAT
MAY BE
SUFFERED BY SELLER..OTHER THAN AS SET FORTH IN THIS CONTRACT, BUYER
SHALL
IN NO EVENT BE LIABLE FOR ANY, DIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE. OR OTHER DAMAGES WHATSOEVER THAT MAY BE SUFFERED BY
SELLER.
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| 4. |
FORCE
MAJEURE.
Deliveries or acceptance of the Product may be delayed or suspended
by
Seller or Buyer In the event of act of God, war, riot, fire, explosion,
accident, flood, sabotage, inability to obtain fuel, power, raw material,
labor, containers or transportation, facilities, governmental laws,
regulations, order or action, breakage or failure of machinery or
apparatus, national defense requirements or any other event beyond
the
reasonable control of such party or in the event of labor trouble,
strike,
lockout or injunction (whether or not such labor event is within
the
reasonable control of such party), any of which events prevent the
manufacture, shipment, or acceptance of a shipment of the Product
or of
material or services upon which the manufacture of the Product Is
dependent. If, because of any such event, Seller is unable to supply
part
or total demand for the Product or if Buyer, because of any such
event, is
unable to accept part or total of quantity contracted for, the affected
party shall be exempted to such extent from its obligations hereunder
with
respect to the particular delivery involved upon giving prompt notice
of
such event to the other party. The other party shall be likewise
exempted
from Its corresponding obligations, but this contract shall otherwise
remain unaffected, save for and without detriment to what is provided
in
Paragraphs 5 and 6 hereof. Buyer shall not be obligated to xxx
individuals, groups, governmental entities or similar agents giving
rise
to events of force majeure, and shall also not be obligated to contest
or
challenge governmental actions constituting events of force majuere
.
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| 5. |
ALLOCATION.
If, due to any of the events specified in Paragraph 4, Seller is
unable to
supply Buyer's total demands of Product specified in this contract,
Seller
may allocate its available supply among its customers and Its own
requirements on a pro rata basis if practicable, but In any event
in its
sole discretion.
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| Buyer shall be entitled to contract the supply of product from other supplier if the Seller is not able to supply Product to the Buyer for periods longer than 30 days in a given year, regardless or whether or not the Seller’s inability to supply Product to the Buyer hereunder is caused by force majeure or acts of God. |
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6.
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BUYER’S
CREDIT.
.
Seller reserves the right, among other remedies, either to terminate
this
contract or to suspend further deliveries under it in the event Buyer
fails to pay for any one shipment when payment is due. Should Buyer's
credit standing become unsatisfactory to Seller, cash payments or
satisfactory security may be required by Seller for future deliveries
and
for goods theretofore delivered.
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Buyer
reserves the right, among other remedies, to terminate this contract due to
Seller’s inability to supply Product to the Buyer for periods longer than 30
days in a given year or due the Seller’s repeated failure to supply Product
meeting the agreed upon specifications, in both instances without Buyer’s
liability or responsibility.
| 7. |
WARRANTY. SELLER
MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR INTENDED PURPOSE
OR
OTHERWISE, WITH RESPECT TO THE PRODUCT, INCLUDING ANY WARRANTY IMPLIED
BY
LAW, OTHER THAN THAT THE PRODUCT SHALL BE OF THE SPECIFICATIONS STATED
HEREIN. Buyer agrees to inspect the Product supplied hereunder immediately
after delivery and to give notice in writing of any claim within
thirty
(30) days of delivery. Failure to give notice in writing as aforesaid
within the specified time constitutes an unqualified acceptance of
the
Product and a waiver of all claims with respect
thereto.
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| 8. |
PRICE
REVISION..
See attached Addendum A
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2
| 9. |
BINDING
EFFECT.
This contract shall be binding on the successors and assigns of Buyer
and
Seller, provided, however, that Buyer shall not assign this contract
In
whole or in part without the prior written consent of Seller and
Seller
shall not assign this contract in whole or in part without the prior
written consent of the Buyer.
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| 10. |
RELATIONSHIP
OF PARTIES.
|
| (a) |
The
parties acknowledge that there exists no representation, entrustment
or
power of attorney between them to assume any obligations of any nature,
whether express or implied, in the name of or on behalf of the other
party, or to obligate the other party in any manner, except as otherwise
expressly established in this Contract. Accordingly, the parties
agree not
to hold themselves out as representatives of each other and to refrain
from using words or phrases that would indicate a representation
relationship between them, except as expressly established in this
Contract.
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(b)
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By
virtue of the fact that the parties are entities that, in accordance
with
Article 13 of the existing Mexican Federal Employment Law, each possess
their individual and sufficient faculties to fulfill their obligations
and
effectuate their activities, each of the parties shall be solely
responsible to comply with each and every one of their respective
obligations related to their workers, employees and agents, given
that as
between either of the parties and the employees of the other there
exists
no employment or other relationship. Each of the parties shall indemnify
and hold the other party harmless with respect to any labor or other
complaints that are brought against one of the parties by the personnel
of
the other party, or which are brought by any individual that purports
to
be the other party’s agent or representative, or which are initiated by
unions and other labor organizations or by any labor authorities,
including the Social Security (IMSS), the National Institute for
the
Workers’ Housing Fund (INFONAVIT), as well as fiscal authorities.
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| 11. |
COMPLIANCE
WITH LAWS.
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| (a) |
The
Buyer and the Seller shall comply in the United Mexican States with
all
applicable federal, state or municipal laws, regulations, official
norms
and other applicable dispositions that are related to the Product,
its
use, sale, marketing, transportation and other activities related
to the
same. By virtue of the foregoing, the Buyer and the Seller must have
all
necessary permits, licenses, registrations, concessions and/or other
authorizations that are necessary to acquire, handle, possess, sell,
market, use and/or transport the
Product.
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(b)
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The
Buyer obligates to indemnify and hold the other party harmless from
any
complaint, claim, preventive measure and/or fine presented against
or
imposed upon the other party, as well as any amount that the other
party
is required to pay as a result of any of the party’s violation of any law,
regulation, official norm or any applicable disposition related to
the
acquisition, handling, possession, sale, marketing, use and/or
transportation of the Product.
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| 12. |
NOTICES.
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| (a) |
All
notices provided for in this Contract and any other notice, demand
or
communication pursuant to this Contract must be provided in writing
to all
the parties hereto and may be given: (i) via personal delivery; (ii)
via
courier service with return receipt requested; (iii) by certified
mail,
first-class postage prepaid, return receipt requested; or (iv) by
facsimile, provided the sender has evidence that the facsimile was
received by the addressee’s facsimile
machine.
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(b)
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Notices
shall be effective: (i) if delivered personally or by facsimile on
the
date of delivery if delivered before 6:00 p.m. on a business day,
and on
the next business day if delivered after 6:00 p.m. or on a non-business
day; and (ii) on the date of delivery if sent by mail or
courier.
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(c)
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Notices
and other communications shall be addressed to the respective parties
at
the addresses set forth below. Any address or name specified below
may be
modified by a notice given in accordance with the provisions of this
Paragraph 12, so long as the modification of name or address must
be
notified at least 3 (three) days prior to becoming
effective.
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(i)
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If
intended for the Seller:
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Degussa
Mexico, S.A. de C.V.
Xxxx.
Xxxxxx-Xxxxxxxxxx 0000-XXX
00000,
Xxxxxx X.X.
Xxxxxx
Attn:
_____________
Telecopier
Number: (52) ______________
3
with
a
copy to:
CyPlus
Canada Inc.
0000,
xxxx, Xxxxxxx
Xxxxx-Xxxxxxx,
Xxxxxx
X0X
0X0
Xxxxxx
Telecopier
Number: (000) 000-0000
(ii) If
intended for the Buyer:
Minera
Santa Xxxx S de RL de CV
Xxxxxxxx
Xxxxxxxxx Xx. 00 Xxxxxxxx Xxx. Xxxxxx XX 00000
Attn:
Xxxx Xxxxxxxx, Chief Operating Officer
Telecopier
Number: (00) 000 00 00000
13.
ENTIRETY
OF CONTRACT / WAIVER.
| (a) |
This
Contract and its respective Exhibits constitutes the full understanding
of
the parties with respect to the subject matter set forth herein;
and by
virtue of the same the parties hereby terminate any and all other
agreements, covenants or contracts, whether verbal or in writing,
that the
parties may have executed prior to this Contract as concerns the
same
subject matter.
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| (b) |
The
failure by one of the parties to demand or insist compliance with
any of
the terms or conditions of this Contract or to exercise any of the
rights
derived there from shall not be interpreted as a waiver to demand
compliance with said terms and conditions or the future exercise
of said
rights, and the obligation of the other party concerning the same
shall
remain in full force and effect. In any event, the waiver of any
right or
remedy by either party must be in writing
.
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| 14. |
GOVERNING
LAW.
The parties submit to the federal mercantile legislation of the United
Mexican States, and any supplementary legislation thereto, as concerns
the
validity, interpretation and performance of this Contract
.
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| 15. |
DISPUTE
RESOLUTION.
Any
dispute, controversy or claims arising out of or relating to this
Contract
or the breach, termination, or invalidity thereof shall be resolved
through binding arbitration (the “Arbitration”) which shall be conducted
as follows:
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| (a) |
The
Arbitration shall occur in the City of Mexico or of Hermosillo, Sonora,
at
the election of the plaintiff, through the establishment of an Arbitration
tribunal comprised of 3 (three) members appointed by the International
Chamber of Commerce of Mexico City.
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| (b) |
The
Arbitration shall be subject to the International Chamber of Commerce
Conciliation and Arbitration Rules.
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| (c) |
The
language of the Arbitration shall be in English, with the understanding
that any documents in Spanish may be presented and admitted as evidence
without having to be translated.
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| (d) |
The
arbitration award shall be final and binding on both parties and
shall not
be subject to appeal and shall be enforceable in any competent court
in
accordance with the terms of same.
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4
Degussa
Mexico, S.A. de C.V.
Addendum
A
This
Addendum is to the Sales Contract between Degussa Mexico, S.A. de C.V. and
Minera Santa Xxxx S De RL De CV. , (Buyer), dated April 1, 2007 for the purchase
and sale of Sodium Cyanide.
Product
Sodium
Cyanide solid bricks
Quantity
100%
of Buyers Estimated Requirements:
In
the years 2007-2010 the demand at Santa Xxxx mine is estimated to be 800 -
1200
metric tons/year (100% basis)
Packaging
UN-approved
wooden boxes, returnable or non-returnable containing 1000 kg net of product,
in
PP-big-bag with PE-liner.
Price
From
April 1, 2007 until March 31st
2008 USD
1850,-/mt
From
April 1, 2008 until March 31st
2009 USD
1905,-/mt
From
April 1, 2009 until March 31st
2010 USD
1960,-/mt
Origin
United
States and/or Europe
Delivery
DDP
[Delivered Duty Paid] Title and risk of loss for product in boxes shall pass
once the boxes arrive in buyer’s warehouse on mine site at Proyecto “ El
Chanate” ten kilometers to the north at the 82 Kilometers of the Federal Highway
No. 2 in the Municipality of Altar, Sonora.
F.O.B.
Point:
DDP
[Delivered Duty Paid] Minera Santa Xxxx S De RL De CV mine
site
at Proyecto “ El Chanate” ten kilometers to the north at the 82 Kilometers of
the Federal Highway No. 2 in the Municipality of Altar, Sonora
Terms
of Payment:
Product
is sold to Buyer on a net thirty (30) day basis. Overdue amounts will be charged
interest at 1.5% per month (18% per annum) beyond forty-five (45) days from
date
of invoice.
5
Degussa
Mexico S.A. De C.V.
Addendum
B
This
Addendum is to the Sales Contract between Degussa Mexico, S.A. de C.V. and
Minera Santa Xxxx S De RL De CV , (Buyer), dated April 1, 2007 for the purchase
and sale of Sodium Cyanide.
Product
Specification:
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Minimum
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Maximum
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Sodium
Cyanide
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(
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%)
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98.0
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99.5
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Sodium
Hydroxide
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(
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%)
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0.06
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0.8
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Sodium
Formate
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(
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%)
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0.1
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0.8
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Water
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(
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%)
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0.1
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0.5
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Sodium
Carbonate
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(
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%)
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0.1
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0.9
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Color
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white | |||||||||
Special
Conditions:
Exports
of Sodium Cyanide from the US and Europe to Mexico are subject to approval
of
and export license. The granting of a license is largely dependent on the timely
and accurate information supplied by the buyer. Any delay may cause the delay
of
shipments.
Safety
Training:
Cyplus
follows strict Responsible Care Guidelines. CyPlus experts will visit the plant
site to evaluate the potential improvements of safety on a yearly basis.
Taxes:
All
taxes
are extra if applicable.
Evergreen
Clause:
This
contract shall commence on April 1, 2007 and will run for an Initial Term of
thirty-six (36 months ("Initial Term") to March 31, 2010. Thence this contract
shall automatically renew for successive two (2) year terms unless terminated
by
either party (effective at the end of the Initial Term or any renewal term),
upon written notice to the other party at least ninety (90) days prior to the
anniversary date of the contract (January 1st
for the
purpose of this agreement). The Price will be negotiated at least ninety (90)
days prior to March 31, 2010 for the period April 1, 2010 to March 31, 2012.
6
