Exhibit 10.44
SUPPLY CONTRACT
CHINA GLOBAL MINING RESOURCES LIMITED
(PURCHASER)
SHAANXI HUA ZE NICKEL AND COBALT METALS CO.,
LTD.
(SUPPLIER)
SHAANXI XINGWANG IMPORT & EXPORT LIMITED.
(EXPORT AGENT)
DATED 15 JUNE 2007
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Supplier
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Shaanxi
Hua Ze Nickel and Cobalt Metals Co., Ltd., a company organized
and existing under the laws of the People’s Republic of
China
Address:
11/F,
High-Tech Building, Eastern Zone, High-Tech Zone, Xi’an
Municipality, Shaanxi Province, People’s Republic of
China
Telephone:
(86) 29-8831 4062
Fax:
(86) 29-8831 2501
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Goods
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The
forty (40) metric tonnes of electrolytic nickel (>99%) as
further specified in schedule 2
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Price
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As
set out in schedule 4
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Contract
Effective Date
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20
June 2007
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Contract
Expiry Date
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20
December 2007, or such later date as agreed in writing by the
parties
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Contract
Period
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The
period commencing on the Contract Effective Date and ending on
the Contract Expiry Date
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Invoice(s)
to be sent to (see clause 8.1)
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China
Global Mining Resources Limited
Attention:
Robin Lee
Address: Suite
3015, 30/F., One International Finance Centre, 1 Harbour View
Street, Central, Hong Kong
Fax:
(852) 3101 9140
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Delivery
instructions for Goods (see clause 9.1)
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Delivery
Point(s): as specified in each Order.
Delivery
Date(s) – date(s) for delivery of Goods to Delivery
Point as specified in each Order.
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Liquidated
damages (see clause 13.1)
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Rate
of liquidated damages per day: Zero point two percent (0.2%)
of the Price of the delayed batch of Goods.
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Warranty
Period (see clause 15.3, 15.4)
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The
Warranty Period for each batch of Goods delivered shall be a
period of one year commencing on the Delivery Date for that
batch of Goods
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Insurance
Cover (See clause 16)
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Comprehensive
public and product liability insurance:
See
further clause 17
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Specifications
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Specifications
are set out in schedule 3
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Standards
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Standards
include those set out in schedule 5
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Aggregate
limit of liability
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The
Supplier’s liability is unlimited
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Place
of arbitration (see clause 21)
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The
Hong Kong Special Administrative Region
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Person
nominated by the Purchaser for receipt of notices and address
/fax details (see clause 24)
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Name,
Title: Brandon Ho
Address:
Suite
3015, 30F., One International Finance Centre, 1 Harbour View
Street, Central, Hong Kong
Fax
number: (852) 2504 3232
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Person
nominated by the Supplier for receipt of notices and
address/fax details (see clause 25)
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Name,
title: Xi Wei, Vice President
Address:
3/F,
High Tech Building, Eastern Zone, High-Tech Zone, Xi’an
Municipality, Shaanxi Province, People’s Republic of
China
Fax
number: (86) 29-8831 2501
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Export
Agent
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SHAANXI XINGWANG IMPORT & EXPROT LIMITED.
Address:
Mijiaqiao,
No.52, Gaoxin road, High-Tech Zone, Xi’an Municipality,
Shaanxi Province, People’s Republic of
China
Telephone:
(86) 29-88317707
Bank
Account No. 61001920900050050011750
Name
of the Bank in Chinese: o
Name
of the Bank in English: China
Construction Bank Corporation
Xi’an
Hi-tech Development Zone Sub-branch
Swift
Code: PCBCCNBJSXX
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Governing
law (see clause 29)
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This
Contract shall be governed by and construed in accordance with
the laws of the Hong Kong Special Administrative
Region.
See
further clause 29.
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Date
of signing this Contract
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15
June 2007
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The
parties agree to the supply and purchase of the Goods on the
terms and conditions set out in this Contract.
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Name:
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Robin
Lee
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WITNESSED
BY
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Position:
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For
and on behalf of
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CHINA
GLOBAL MINING RESOURCES LIMITED
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Name:
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o
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Signature:
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/s/
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Signature:
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/s/
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For
and on behalf of China Global Mining
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Resources
Limited by its authorised
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representative
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Name:
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Wang
Yinghu
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Position:
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Signature:
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/s/
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For
and on behalf of Shaanxi Hua Ze Nickel
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and
Cobalt Metals Co., Ltd. by its authorised
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representative
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Name:
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Du
Tianhe
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Position:
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Signature:
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/s/
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For
and on behalf of Shaanxi Xingwang
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Import
& Export Limited
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SUPPLY CONTRACT
PREAMBLE
WHEREAS
The
Supplier is a properly licensed and approved manufacturer of
electrolytic nickel products located in Xi’an
Municipality, Shaanxi Province, the People’s Republic of
China;
The
Supplier wishes to sell forty (40) metric tonnes of
electrolytic nickel (>99%) to the Purchaser and the
Purchaser wishes to buy forty (40) metric tonnes of
electrolytic nickel (>99%) from the Supplier on the terms
and conditions of this Contract;
NOW,
THEREFORE
The
parties have entered into this Contract to set forth the terms
and conditions of the supply and purchase of the
Goods.
GENERAL CONDITIONS
1.
PRE-PAYMENT
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1.1
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The
Supplier agrees to sell the Goods to the Purchaser and the
Purchaser wishes to buy the Goods from the Supplier on the terms
and conditions of this Contract.
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1.2
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Without
prejudice to the Price to be paid by the Purchaser for the Goods
hereunder the Purchaser, Since the Purchaser has deep faith in the
credibility of the Supplier, the Purchaser shall pay to the
Supplier the Prepayment of a the total amount of RMB 15,460,000 as
payment in advance for the Goods to be supplied pursuant to the
terms and conditions of this Contract.
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2.
SUPPLY OF GOODS
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2.1
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The
Supplier must supply and deliver the Goods, and the Purchaser will
accept delivery of the Goods in accordance with, and as specified
in, this Contract.
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2.2
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The
Supplier is entitled but is not required to place at any time an
Order for the Goods during the Contract Period.
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2.3
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The
Supplier is required to perform the Order in accordance with the
details specified in the Order.
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2.4
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In
order to implement this Contract, the Supplier may be required to
engage an Import-Export Agent to export the Goods to the Purchaser.
The Supplier shall ensure that the Import-Export Agent delivers the
Goods in accordance with the provisions of this Contract and the
Supplier shall be liable for the failure of the Import-Export Agent
to deliver the Goods as required under this Contract.
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3. |
QUALITY AND DESCRIPTION
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3.1
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The
Goods must comply with the Specifications, the Standards and the
description of the Goods set out in this Contract and each
Order.
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3.2
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The
Goods supplied to fulfil the terms of this Contract may be
manufactured by any third party Manufacturer provided that the
Suppler notifies the Purchaser of it beforehand and further
provided that the Goods manufactured by the third Party
Manufacturer comply the with the Specifications, the Standards and
the description of the Goods set out in this Contract and each
Order.
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3.3
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Goods
procured by the Supplier from a Manufacturer shall be subject to
the same requirements with respect to the Goods specified in the
Contract and the Supplier shall be liable for the compliance of the
Goods with such requirements as if these Goods had been
manufactured by itself.
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3.4
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If
the Supplier gave the Purchaser a sample of the Goods before the
Purchaser entered into this Contract, the quality of the Goods
must, as a minimum, correspond with the sample unless otherwise
specified by the Purchaser.
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4. |
INSPECTION AND INFORMATION
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4.1
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The
Supplier must carry out all inspection and testing:
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(a)
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as
required under this Contract, including the quality assurance to be
carried out in accordance with the Specifications;
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(c)
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as
reasonably requested by the Purchaser, and
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4.2
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The
Supplier must provide to the Purchaser at its request and
cost:
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(a)
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copies
of all Technical Materials relating to the Goods;
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(b)
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a
detailed program for the testing and delivery of the Goods;
and
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(c)
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progress
reports setting out in such detail as the Purchaser requires the
status of testing and delivery of the Goods.
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4.3
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At
reasonable times agreed by the Supplier beforehand, the Purchaser
has the right to test, review, inspect, measure and examine the
Goods and workmanship and:
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(a)
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check
the progress of production and manufacture of the
Goods;
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(b)
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check
compliance of the Goods with this Contract; and
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(i)
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the
manufacturing of the Goods; and
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(ii)
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any
tests carried out in respect of the Goods,
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at
the Supplier’s premises and the premises of any
Manufacturers.
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4.4
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The
Supplier must ensure that the Purchaser is provided with access to
the Supplier’s premises or the premises of a Manufacturer and
that all facilities required for the Purchaser to test, review,
inspect, measure, examine and witness the testing of the Goods and
workmanship are made available to the Purchaser at reasonable times
agreed by the Supplier beforehand.
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4.5
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The
Supplier must give the Purchaser and the Representative of the
Purchaser at least 10 days notice of the date upon which each of
the following events will occur:
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(a)
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the
carrying out of any performance tests prior to delivery of the
Goods;
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(b)
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final
inspection of the Goods prior to delivery of the Goods;
and
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(c)
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delivery
of the Goods.
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4.6
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If,
as a result of any testing, review, inspection, measuring,
examination or witnessing of testing, the Purchaser is not
satisfied that the Goods will comply in all respects with this
Contract, and the Purchaser informs the Supplier in writing of this
dissatisfaction, the Supplier agrees to take such steps as are
necessary to ensure the Supplier’s compliance with this
Contract.
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4.7
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If
the manufacture of the Goods is delayed as a direct result of the
testing, review, inspection, examination or witnessing of testing
by the Purchaser under clause 4.3, an extension of time to the
Delivery Date(s) equal to the delay caused by the Purchaser will be
granted by the Purchaser. This extension of time to the Delivery
Date(s) will not apply where the delay is caused by any failure by
the Supplier to comply with the terms and conditions of this
Contract due to its own reason.
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4.8
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Any
testing, review, inspection, examination or witnessing of testing
that the Purchaser undertakes does not relieve the Supplier of the
Supplier’s responsibilities under this Contract unless
otherwise provided in this Contract.
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4.9
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The
Supplier must ensure that the rights of the Purchaser set out in
this clause 4 are included in any subcontract entered into by the
Supplier in respect of the Goods (including subcontracts with the
Manufacturer) to the extent as reasonable and permitted by
applicable laws..
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5.1
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Unless
otherwise provided in this Contract, the Supplier must supply, at
the Supplier’s own expense, all labour, plant, equipment,
tools, appliances or any other property and items the Supplier
requires to comply with the Supplier’s obligations under this
Contract.
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6.1
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The
Supplier must invoice the Purchaser upon receipt of the notice of
acceptance of the Goods issued by the Purchaser under clause 10.4.
Invoices must be in triplicate and signed by the Supplier. When
submitting the invoice under this clause to the person identified
in the Contract Details, the Supplier must provide the Purchaser
with all relevant records to enable the Purchaser to verify the
amount of the invoice and the invoice must be based on the rates
and prices set out in schedule 4.
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6.2
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The
Purchaser is responsible for the following costs:
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(a)
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any
of the following applicable costs, except to the extent they are
incurred as a result of the Supplier’s, or the
Supplier’s designated shipper’s, action or
inaction:
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(ii)
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transportation
charges,
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within
the Delivery Point directly related to the offloading of the
Goods; and
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(b)
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All
costs for transportation of the Goods from the Delivery Point to
any other destination.
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6.3
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All
costs incurred by the Supplier in complying with the
Supplier’s obligations under this Contract shall be the
responsibility of the Supplier including:
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(a)
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all
charges, fees and other costs incurred in relation to the
appointment of, and the services provided by, the Import-Export
Agent;
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(b)
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all
charges for packaging, packing, insurance, transportation (by ocean
freight from the departure port to the destination port) ) and
delivery of the Goods in accordance with this
Contract;
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(c)
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all
Taxes payable in the People’s Republic of China as required
by applicable tax laws or regulations; and
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(d)
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the
costs of all inspection and testing, including quality assurance
(to be carried out in accordance with the Specifications) required
by clause 4.
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6.4
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Subject
to the Supplier’s compliance with clause 6.1 and subject to
clause 6.5, the amount set out in the Supplier’s invoice
submitted under clause 6.1 shall be deemed to have been offset
against the Prepayment.
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6.5
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The
amount set out in the Supplier’s invoice submitted under
clause 6.1 may not be offset against the Prepayment in accordance
with clause 8.2 where the Purchaser disputes the invoice in which
case:
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(a)
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the
undisputed part of the invoice (if any) may be offset against the
Prepayment and the balance shall be pending resolution of the
Dispute in accordance with clause 23;
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(b)
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if
the resolution of the Dispute determines that the Purchaser is to
pay the disputed amount, that amount may be offset against the
Prepayment upon resolution of the dispute; or
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(c)
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if
the resolution of the Dispute determines that the Supplier is to
pay the disputed amount, that amount may not be offset against the
Prepayment upon resolution of the dispute.
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6.6
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The
applicable rate of interest of 130% of the six-month benchmark
lending rate for commercial customers offered by the People’s
Bank of China will be payable by the Purchaser in respect of any
invoice rendered to the Purchaser by the Supplier under clause 6.1
or any other charges and expenses payable to Supplier by the
Purchaser under this Contract which remain due and unpaid or have
not been offset against the Prepayment.
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7.1
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The
Supplier should send the Purchaser a Confirmation Notice within two
days of receipt of an Order issued by the Purchaser under clause
2.2.
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7.2
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The
Confirmation Notice shall contain the following
information:
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(a)
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date
on which the Goods will be shipped;
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(b)
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expected
Delivery Date;
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(c)
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batch
number and detailed breakdown of the Goods being shipped;
and
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(d)
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the
total Price of the Goods to be delivered under the Price
Confirmation Notice.
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8.1
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Title
to and risk in the Goods do not pass to the Purchaser
until:
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(a)
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it
takes delivery of the Goods; and
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(b)
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it
inspects and accepts the Goods in accordance with clause
[10].
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8.2
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the
Supplier warrants that at the time of delivery of the
Goods:
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(a)
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the
Supplier has complete ownership of the Goods free of any liens,
charges and encumbrances and will provide the Goods to the
Purchaser on that basis;
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(b)
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the
Purchaser will be entitled to clear, complete and quiet possession
of the Goods and
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(c)
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the
Purchaser may discharge any liens, charges and encumbrances over
the Goods by direct payment to the third party holding such
interest in the Goods. the Supplier is responsible for compensating
the Purchaser for all these payments up to the full amount within
one week of the receipt of a notice from the Purchaser detailing
the date, amount and recipient of the payments.
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9.1
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The
Supplier must ensure that the Goods are delivered to the Delivery
Point(s) by the Delivery Date(s).
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9.2
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The
Supplier must ensure that the Goods are properly and suitably
packed for land and sea transportation and having regard to
handling and to the weather conditions while
travelling.
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9.3
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The
Supplier must include a packing list in each package of Goods
delivered to the Purchaser and provide all other shipping documents
requested by the Purchaser from time to time.
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9.4
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The
Goods must be clearly marked with the identification marks
specified in this Contract. These identification marks must also be
shown on drawings and dispatch and shop lists.
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9.5
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The
Supplier must clearly mark each package of Goods to be delivered to
the Purchaser with its gross dead weight and with such marks and
shipping numbers as are specified in this Contract or as otherwise
requested by the Purchaser by notice in writing.
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10. |
INSPECTION AND ACCEPTANCE
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| 10.1 |
The
Purchaser will not be deemed to have accepted any Goods (regardless
of signing of delivery receipts) until the Purchaser has had a
reasonable time to inspect the Goods after delivery and has issued
a notice of acceptance under clause 10.4.
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10.2
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If
upon inspection the Purchaser finds any Goods to be Defective
Goods, the Purchaser may:
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(a)
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reject
the Defective Goods by returning them to the Supplier;
or
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(b)
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make
good the Defective Goods,
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| 10.3 |
At
the Purchaser’s option and request, the Supplier agrees
to:
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(a)
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refund
to the Purchaser any payments made by the Purchaser (including any
freight charges) in respect of any Defective Goods that the
Purchaser rejects;
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(b)
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promptly
make good at the Supplier’s sole expense any Defective Goods
that the Purchaser rejects under clause 10.2(a); or
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(c)
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reimburse
the Purchaser for any reasonable and direct expenses the Purchaser
incurs in making good any Defective Goods under clause
10.2(b).
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10.4
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If
the Goods comply with this Contract, the Purchaser will issue the
Supplier a notice of acceptance.
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10.5
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The
inspection, testing or acceptance of some or all of the Goods by
the Purchaser does not in any way:
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(a)
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change
or affect the Supplier’s obligations under this Contract;
or
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(b)
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affect
the Purchaser’s rights to claim for any damage or loss it may
suffer because of the Supplier’s breach of warranty or
failure to fulfil any of the Supplier’s other obligations
under this Contract.
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10.6
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If
the Purchaser decides to accept any Goods from the Supplier which
do not comply with this Contract, this decision does not bind the
Purchaser to accept future shipments of Goods which do not comply
with this Contract.
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10.7
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If
the Purchaser rejects and returns Defective Goods, the Supplier
shall be required to supply replacement Goods of the same
Specifications and quantity as the returned Defective Goods within
one month of receipt of the notice of rejection of the Defective
Goods issued by the Purchaser.
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10.8
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Aforesaid
inspection and acceptance procedure should be completed 30 days
after the Delivery Date (s), failing which the Goods delivered
shall be deemed as inspected and accepted by the Purchaser unless
its failure to inspect such Goods is solely attributable to the
Supplier.
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11.1
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The
Supplier must not vary the Goods except as directed by the
Representative of the Purchaser.
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11.2
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The
Representative of the Purchaser may by notice direct the Supplier
to alter, amend, omit, add to or otherwise vary the Goods and the
Supplier must carry out and be bound by any such variations
provided that such variation will not lead to an increase in the
production cost for the Goods.
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11.3
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The
Supplier may use its best reasonable efforts prove any claim it
makes that a variation required by the Purchaser increases the
production cost for the Goods.
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12.1
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Within
seven days of it becoming reasonably evident that delivery of the
Goods is likely to be delayed beyond the Delivery Date(s), the
Supplier must give notice to the Purchaser setting out full details
of the cause of the delay with supporting documents and stating a
reasonable period by which the Supplier believes the Delivery
Date(s) should be extended.
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12.2
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Subject
to the other provisions of this clause 12, the Supplier are only
entitled to an extension of time to the Delivery Date(s) where a
delay to the Delivery Date(s) is caused by any of the following
events, whether occurring before, on or after the Delivery
Date(s):
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(a)
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any
act, omission, breach or default by the Purchaser or the
Purchaser’s employees, agents or contractors;
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(b)
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the
execution of a variation under clause 11, except where that
variation is caused by the Supplier’s act, omission, breach
or default; or
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(c)
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an
Event of Force Majeure.
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(d)
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any
other reason reasonably raised by the Supplier and agreed by the
Purchaser.
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12.3
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As
soon as practicable after receipt of the notice in clause 12.1, the
Purchaser will notify the Supplier as to the period, if any, by
which the Delivery Date(s) will be extended.
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12.4
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Despite
any other provisions of this clause 12, the Purchaser may within 5
days of its receipt of Supplier’s notice as set out in
Article 12. 1 make an extension to the Delivery
Date(s).
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12.5
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the
Supplier is entitled to recover (whether pursuant to this clause 12
or otherwise) any amount representing any kind of indirect or
consequential loss or damage including loss of profit, loss of use,
loss of contracts, or contribution to head office overheads arising
out of or in connection with any extension of time provided such
extension of time is caused by the events as set out in Article
12.2 (a).
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13.1
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Unless
otherwise provided in this Contract, if the Supplier fails to
deliver the Goods to the Purchaser by the Delivery Date(s), the
Supplier must pay the Purchaser liquidated damages at the rate
stated in the Contract Details, for each day after the Delivery
Date(s) up to and including the date of delivery of the Goods or
the date this Contract is terminated, whichever occurs first,
subject to the limit of liquidated damages set out in the Contract
Details.
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13.2
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Without
limiting any other rights the Purchaser may have, the Purchaser may
deduct any liquidated damages payable to the Purchaser under clause
13.1 from any amounts payable by the Purchaser to the Supplier
under this Contract or any other agreement between the Purchaser
and the Supplier.
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13.3
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If
the Purchaser is entitled to be paid liquidated damages under
clause 13.1, this does not limit the right of the Purchaser to
enforce any other remedy it may have against the Supplier as
permitted by the applicable laws.
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14. |
INDEPENDENT CONTRACTOR
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The
parties acknowledge that the Supplier is a contractor and not
an employee or agent of the Purchaser and that nothing in this
Contract creates any agency, partnership, joint venture or
other joint relationship between the parties.
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15.1
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The
Supplier warrants that the Goods:
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(a)
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comply
in all respects with this Contract;
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(b)
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are
free from defects in design, materials and
workmanship;
|
| |
(c)
|
are
manufactured, produced and delivered:
|
| |
(i)
|
in
a proper workmanlike and careful manner, in accordance with
recognised good practice; and
|
| |
(ii)
|
with
properly equipped facilities and non-hazardous materials, except as
otherwise specified in this Contract; and
|
| |
(d)
|
meet
the Standards and Specifications.
|
|
15.2
|
The
Supplier warrants that as at the date of this Contract, to its best
knowledge, the Supplier is not aware of any claim for infringement
of Intellectual Property Rights or for the breach of any
obligations of confidence, arising out of the manufacture, sale,
supply or use of the Goods.
|
|
15.3
|
If,
during the Warranty Period, the Purchaser finds any of the Goods to
be Defective Goods, the Purchaser may, at its option:
|
| |
(a)
|
return
the Defective Goods to the Supplier, or
|
| |
(b)
|
make
good the Defective Goods.
|
|
15.4
|
At
request of the Purchaser, during the Warranty Period the Supplier
agrees to:
|
| |
(a)
|
promptly
repair or, at the option of the Purchaser, replace, free of charge,
any Defective Goods that the Purchaser returns to the Supplier;
or
|
| |
(b)
|
reimburse
the Purchaser for any expenses it incurs in making good any
Defective Goods or in returning Defective Goods to the
Supplier.
|
|
15.5
|
Any
repairs or replacement goods provided by the Supplier under this
clause 15 will be subject to the remaining Warranty Period or
ninety (90) days after the repair or replacement date, whichever
arrives earlier.
|
|
15.6
|
The
remedies provided in this clause 15 do not prejudice any other
rights which the Purchaser may have against the Supplier in
connection with the Supplier’s breach of obligations under
this Contract or exclude any other remedies provided by
law.
|
|
15.7
|
The
warranties contained in this clause 15 survive the expiration or
earlier termination or expiry of this Contract.
|
|
16.1
|
The
Supplier must take out and maintain during the period of this
Contract:
|
| |
(a)
|
insurance
for the Goods up to the time they are accepted by the Purchaser
under clause 10.4 for an amount not less than their replacement
value or any other reasonable a
|
|
