General
These General Terms and Conditions (referred to hereafter as “Conditions”) apply to all and any agreements with Viterra B.V. (“Viterra”) for the sale and purchase of agriculture commodities (“Goods”).
Where industry standard contract terms are incorporated into the contract confirmation these shall prevail over these Conditions and the provisions of the contract confirmation shall prevail over any such incorporated industry standard contract terms. Subject to the foregoing, Viterra’s counterparty acknowledges that all existing and future agreements for Goods shall be governed by these Conditions to the exclusion of all other terms and conditions.
These Conditions together with the contract confirmation and any industry standard contract terms shall together comprise the Contract. In the event of a conflict, discrepancy, ambiguity or inconsistency between these Conditions and any term or condition in the contract confirmation, the latter shall prevail.
Payment:
Payments to Viterra shall be effected as specified in the Contract, free of any set-off, withholding, counterclaim or deduction whatsoever.
Viterra may charge interest at a rate of 1.5% per month on any outstanding amount, for the period between the payment due date and the date of receipt of payment, without any further notice being required.
All Seller’s bank charges and all charges or costs incurred by banks appointed or nominated by Seller’s bank shall be for Seller’s account. All Buyer’s bank charges and all charges or costs incurred by banks appointed or nominated by Buyer’s bank shall be for Buyer’s account.
Limitation of Liability:
Viterra shall not be liable to its counterparty for any indirect or consequential losses or expenses, including (without limitation) loss of anticipated profit, loss of opportunity, loss of capital or business interruption, market reputation, hedging or other derivative losses, whether or not foreseeable..
Assignment clause:
Neither party shall assign or transfer any of its rights and/or obligations under the Contract unless the other party consents in writing (such consent not to be unreasonably withheld or delayed). In case of Viterra, such assignment or transfer does not require consent if it is to or for the benefit of one or more of its financing banks and/or its insurers.
Risk and Title:
Risk of loss, contamination, deterioration or damage to the Goods shall pass to Buyer upon safe delivery of the Goods in accordance with the terms and conditions of the Contract.
Title to the Goods shall pass to Buyer upon receipt of payment in full by Seller from Buyer without deduction, set off, withholding or counterclaim whatsoever.
Loss or deterioration clause:
Buyer shall pay for any and all Goods lost or damaged after delivery of the Goods based on the contractual certificate of weight or weight determination made by Seller or Seller’s representative as per requirements in the Contract and, where available, Seller’s quality analysis as required under the Contract. Buyer shall make such payment in accordance with the payment term in the Contract and shall not await the settlement of any insurance claim before making such payment.
In the event of total or partial loss of or damage to the Goods after the passing of risk from Seller to Buyer before completion of weighing, sampling and/or quality determination in accordance with the terms of the Contract, then payment shall be made as if the whole of the Goods have been delivered.
Waiver clause:
No waiver by either party of any right, power or remedy or of any provision of the Contract and no amendment of any provision of the Contract shall be effective unless and to the extent that it is expressly made in writing.
Language clause:
In case the Contract is multilingual and there are discrepancies in the text between the different languages, the English text shall prevail.
Notices:
All notices and communications under the Contract may be delivered by hand or via email or other means of rapid written communication or the Covantis platform, in English.
Confidentiality:
Unless otherwise agreed in writing between the parties, the Contract and any relating documents and/or correspondence is confidential and shall not be disclosed, except to appropriate governmental entities, self-regulatory bodies such as commodity exchanges or to the extent that one party is required by law to disclose the Contract or any relating documents and/or correspondence. The receiving party shall be entitled to disclose the confidential information to its employees, subsidiaries and affiliates including their employees, officers, directors, agents, advisors, auditors and potential financing sources who have a clear need to know (The “Representatives”) provided that the Representatives will adhere to the confidentiality obligation in these Conditions.
For the purpose of this clause affiliates shall mean any company or legal entity which directly or indirectly, controls, is controlled by, or is under common control with a party. “Control” means (i) direct or indirect ownership of more than fifty percent (50%) of the outstanding capital shares of company or legal entity, or for a legal entity that does not have outstanding capital shares, more than fifty percent (50%) of the ownership interest of such legal entity, and/or (ii) the ability to appoint a majority of directors to the board of directors of a company or legal entity, or for a legal entity that does not have a board of directors, the functional equivalent of a board of directors, and/or (iii) the ability to manage and operate, and direct the business affairs of a company or legal entity; provided that, a company or legal entity shall be deemed an affiliate only for so long as Control exists.
Compliance clause
The parties warrant, represent and undertake to each other, that they will comply with all applicable laws, rules and regulations including without limitation sanctions, anti-corruption, anti-money laundering and tax laws.
Sanctions clause
The parties represent, warrant and undertake to each other that:
- neither they nor any of their subsidiaries or directors, senior executives or officers, or to the knowledge of the Parties, any person on whose behalf the Parties are acting in connection with the Contract, is an individual or entity (“Person”) that is, or is 50% or more owned or controlled by, a Person (or Persons) that is the subject of any economic or financial sanctions or trade embargoes administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) the U.S. Departments of State or Commerce, the United Nations Security Council (“UNSC”), the European Union (“EU”), or other applicable sanctions authority (collectively, “Sanctions”) (collectively, a "Sanctioned Person");
- no Sanctioned Person has any beneficial or other property interest in the Contract nor will have any participation in or derive any other financial or economic benefit from the Contract,
- they will not use, or make available, the Goods or funds (as applicable) provided the other party in terms of the Contract to fund or facilitate any activities or business of, with or related to any Sanctioned Person, or in any manner that would result in a violation of Sanctions, and
- they will not use or make available the Goods or funds (as applicable) provided by the other party in terms of the Contract to fund or facilitate any activities or business of, with or related to any country or territory that is the subject of comprehensive (i.e., country-wide or territory-wide) Sanctions (including, as of the date of signature of the Contract, Cuba, Iran, North Korea, Syria, Crimea, and the non-government controlled areas of Ukraine in the oblasts of Donetsk, Kherson, Luhansk and Zaporizhzia) (a "Sanctioned Country"), unless such activity complies with all applicable Sanctions and does not place either party in violation of Sanctions. The Buyer will inform the Seller immediately, but latest prior to commencement of loading/prior to shipment, about any sale to a Sanctioned Country.
Seller represents and warrants that the Goods have not originated or come from or through any Sanctioned Country.
Without prejudice to its other rights under this clause, in order to ensure compliance with Sanctions, the Seller may, without prejudice to any other rights, require payment in Euro, exchange rate to be used will be the Bloomberg Fixing or another mutually agreed USD/EUR exchange rate, two business days prior to the payment date, unless it is proven to Seller's satisfaction that the transaction is covered by a valid OFAC licence. Likewise, the Buyer may, mutatis mutandis, also pay in Euro.
If either party (“the party not in breach”) is of the reasonable opinion that the other party (“the party in breach”) has breached this clause, the party not in breach may (without incurring any liability of any nature to the party in breach whatsoever) terminate or suspend all or any part of the Contract with immediate effect by notice to the party in breach or take any other action it deems necessary in order for it to comply with applicable Sanctions. The party in breach shall be liable for any and all costs, liabilities and expenses whatsoever incurred by the party not in breach as a consequence of exercising its rights under this clause.
Anti-corruption clause:
Each party respectively agrees and undertakes to the other that, in connection with this Contract, it is aware, understands and will fully comply with all applicable anti-corruption laws, regulations, ordinances, resolutions, decrees and/or other requirements having the force of law of the U.S., U.K., E.U. (or its respective Member States), U.N,, or the country of origin of the goods relating to anti-bribery and anti-money laundering (“Applicable Legislation”).
In particular, each party respectively represents, warrants and undertakes to the other that it shall not, directly or indirectly, undertake any activity or behaviour listed in a)-c) below if this is in violation of or inconsistent with the Applicable Legislation on combating bribery in business transactions:
- offer, promise, give, authorize, request, agree to receive or accept the payment of any financial advantage or any other things of value to the following persons, with the reasonable knowledge that it will be used for the purpose of obtaining any improper benefit or to improperly influence any act or decision by such persons or party for the purpose of obtaining, retaining, or directing business:
- a public official, being (1) an officer, employee or representative of any national or local government institution, state-owned or controlled enterprise, or supranational organisation; (2) a legislative, administrative or judicial official; (3) an officer or representative of a political party or a political candidate; or (4) a person who otherwise exercises a public function for or on behalf of any country.
- any other person, individual or entity in relation to business transactions, being also referred to as commercial bribery;
- any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities; or
- pay a facilitation payment, being a payment or offer made to officials with the intention of enabling or speeding up the process of a service that the payer is entitled to.
- engage in other acts or transactions in violation of or inconsistent with the Applicable Legislation.
If either party is in breach of this clause, the other party (“the party not in breach”) may (without incurring any liability of any nature to the party in breach whatsoever) terminate or suspend all or any part of the Contract with immediate effect by giving notice to the party in breach or take any other action it deems necessary in order for it to comply with Applicable Legislation. The party in breach shall be liable for any and all costs, liabilities and expenses whatsoever incurred by it due to exercising its rights under this clause.
Vessel Sanctions Clause:
The parties warrant and represent that it will not nominate and/or appropriate any vessel in the performance of their obligations under this Contract in violation of Sanctions or which would put either party in breach, or under designation risk, of Sanctions.
Parties will have the right to reject any nomination and/or appropriation which (a) violates any Sanctions, (b) puts either party in breach, or under designation risk, of any Sanctions, or (c) otherwise involves a vessel that is the subject of any Sanctions (including, but not limited to, vessels that are the subject of Sanctions due to ownership or country of registration, or that appear on any Sanctions list), by serving a rejection notice on the other party detailing the grounds for the rejection. Service of such notice shall not constitute a breach of this Contract and parties shall not be liable to the other party for any losses, claims, costs, expenses, damages or liabilities arising in connection with any such rejection. If parties reject a nomination and/or appropriation on these grounds they shall be entitled, at their sole discretion, to (i) require the other party to promptly nominate and/or appropriate a suitable substitute vessel; or (ii) terminate this Contract.
To the full extent permitted by applicable law, the party nominating and/or appropriating a vessel in breach of this clause shall indemnify the other party against any and all costs, expenses, losses and liabilities which it incurs as a result of such breach.
Any exercise by the party of its right under this clause shall be without prejudice to any other rights or remedies of it under the Contract.
Know Your Counterparty (“KYC”) clause:
Viterra’s counterparty shall use all reasonable endeavours to complete the KYC procedure determined by Viterra’s compliance department.
Severability:
If any provision of the Contract is declared by any court or tribunal of competent jurisdiction to be void, invalid, illegal or otherwise unenforceable, either in whole or in part, any such declaration shall not affect the validity, legality or enforceability of the remaining provisions or any part of the Contract, all of which shall remain in full force and effect.
Governing Law:
Unless otherwise agreed, the Contract is governed by and construed in accordance with English law. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
Arbitration:
Unless otherwise agreed in the Contract, any and all disputes or matters arising out of or in connection with the Contract shall be referred to and finally resolved by arbitration:
- in case of a Contract for the sale and purchase of grains, in accordance with the Arbitration Rules No. 125 of the Grain and Feed Trade Association, in the edition current at the date of the Contract;
- in case of a Contract for the sale and purchase of oilseeds, oilseeds complex or vegetable oils, in accordance with the Rules of Arbitration and Appeal of the Federation of Oils, Seeds and Fats Associations Limited, in the edition current at the date of the Contract;
- in case of a Contract for sale and purchase of cotton, in accordance with the Bylaws and Rules of the International Cotton Association Limited, in the edition current at the date of the Contract;
- in case of a Contract for sale and purchase of sugar, before the Sugar Association of London (SAL) accordance with the rules relating to arbitration, in the edition current at the date of the Contract; and
- in case of other Goods, in accordance with the Rules of Arbitration of the London Court of International Arbitration (“LCIA”), in the edition current at the date of the Contract, such Rules forming part of this Contract and of which both parties hereto shall be deemed to be cognizant. Arbitration to take place in London. The arbitration shall, unless the parties agree upon the appointment of a sole arbitrator, be held before a panel of three (3) arbitrators. Each party shall nominate an arbitrator and the two (2) arbitrators shall nominate a third (3rd) arbitrator, who shall act as a Chairman of the panel. All arbitrators shall be practicing barristers in England and Wales with experience of commodity trading disputes. The arbitration proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof.
Nothing shall prevent the parties from seeking to obtain security for a claim or counterclaim via legal proceedings in any jurisdiction, provided such legal proceedings shall be limited to applying for and/or obtaining security for a claim or counterclaim, it being understood and agreed that the substantive merits of any dispute or claim shall be determined solely by arbitration in accordance with the relevant rules referred to above.
VAT clause:
In case the Contract concerns an intracommunity EU sale or purchase which includes one of the following parities, Ex Works, FCA, FAS, FOB, FOR or FOT and if Buyer requests Seller to apply a VAT-exemption as stipulated in EU Regulation 2018/1912, then Seller shall act accordingly under the express condition that Buyer shall provide sufficient and readable evidence, as stipulated in the aforementioned Regulation, to justify the VAT-exemption. If Buyer fails to provide such satisfactory evidence latest on the 10th day of the month following the delivery month, Seller has the right to charge domestic VAT and the Buyer shall be obliged to pay this VAT amount to Seller without undue delay, unless national VAT-legislation stipulates a different VAT treatment. In case Seller requires additional information in order to justify the applied exemption towards the competent Tax Authorities, Buyer shall be obliged to provide all necessary information without undue delay.
No Third Party Rights:
The Contract is intended solely for the benefit of Viterra and its counterparty and is not for the benefit of, nor may any provision be enforced by, any other person or entity that is not a party to it. Any applicable statute or other law to the contrary is hereby excluded or disapplied.
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