This section of the MMTA website is currently under review. The Contract Sub-Committee would welcome any feedback from those making use of these Trade Regulations, in order to inform its deliberations, and ensure this information remains current and fit for purpose.
E. Quantity & Weights for "in warehouse releases"
F. Form & Packing
G. Origin & Duty/Tax Status
H. Place & Time of Delivery
I. Terms of Payment
K. Claims & Disputes
L. Exclusion of Liability
The purpose of these Regulations, Terms and Conditions of Trade is to enable member companies to trade freely with the minimum of doubt or ambiguity as to contractual obligations towards one another thereby obviating, or minimising, the need to go to arbitration in the performance of a contract.
1. Contracts between parties having their place of business in the same sovereign State shall be automatically subject to the laws of that particular sovereign State.
Where parties have their places of business - i.e. from where they issue their contracts - in different sovereign States, then contracts between them shall be governed by the Uniform Law for International Sales under the 1980 United Nations Convention.
2. The usual basis of trade in respect of these Terms and Conditions shall be "in warehouse" and, unless otherwise agreed at the time of concluding each contract, shall be in a warehouse currently listed in the Associations List of Approved Warehouses. Should another delivery basis be agreed between contracting parties, then Incoterms 1990, or subsequent editions, shall be used.
3. It shall be accepted that in negotiations between members, an offer or bid made -whether verbally or in writing - shall be irrevocable up to the expiry of such fixed time as stipulated in the offer or bid.
- The governing Contract is that issued by the Seller. The duplicate is to be countersigned by the Buyer and returned promptly.
- Contracts shall embrace the following terms:
- Material and Purity
- Form and Packing
- Place of Delivery
- Time of Delivery
- Terms of Payment
- Other Conditions (if applicable)
1. All MMTA listed materials shall have Association published Product Norms, which define, by consensus within the membership, the origin, minimum purity, form packing and any other parameters relevant to the trade in the particular material and any particular origin
2. The Materials presently listed, which may be added to from time to time, are: Ammonium Perrhenate, Antimony, Arsenic, Bismuth, Cadmium, Chromium, Cobalt, Gallium, Germanium, Hafnium, Indium, Iridium, Magnesium, Manganese, Mercury, Osmium, Rhodium, Rhenium, Ruthenium, Selenium, Silicon, Tellurium, Titanium, PGMs, Roasted Molybdenum Concentrates, Ferro Molybdenum, Ferro Tungsten, Ferro Vanadium, Zirconium.
3. Seller is required to provide - unless otherwise agreed - a Certificate of Quality which confirms that the material conforms to the contractual quality. Exceptions: The following listed products, require a Certificate of Assay showing actual values for the individual elements; For non listed products, Buyer and Seller are recommended to agree contractual requirements at the time of contract.
1. It shall be the responsibility of the first member company receiving material in warehouse from a non-association party, or when first placing material into warehouse for eventual onward release, to have the material gross weighed by the holding warehouse, prior to onward release.
If the parcel released is from a larger "Global" gross weighed parcel, this shall be acceptable - as long as the holding warehouse advises this in their release.
Exception 1: In respect of Russian/CIS Cobalt, material is to be 100 percent weighed for Gross, Net and Tare weights as evidenced by a Packing List issued by an approved warehouse, or by an Association listed independent sworn weigher. If the material, with intact identifiable seals, is moved from the location where the weighing took place to a holding Warehouse, providing the gross weight is confirmed as the same by the holding warehouse this to be acceptable providing the material is accompanied by a Packing List referring to the original Packing List.
Exception 2: In respect of Cobalt, of an origin other than Russia/CIS, the holding warehouse must weigh each and every drum for gross weight. The weighing of drums on pallets is not allowed, although any ultimate release on pallets is not excluded.
2. The total net weight of material can vary by plus or minus 2 percent from the contractual quantity.
Exceptions: Mercury shall have no tolerance. PGM's 5 percent plus or minus.
The 2% net weight tolerance allows for minor weight variances within the unit of packing, or for packing with a unit weight that does not allow an exact division into the contracted net weight. For example, a parcel of 50 MT ±2% has a packing list showing a unit weight range of 175 - 185 kilos & an average of 182 kilos. A delivery could therefore be made of 274 units (49.87 MT) or 275 units (50.05 MT).Likewise a 35.2 MT parcel of 400 kilo uniform net weight drums may consist of 88 drums (35.2MT) or 87 drums (34.8MT), but not 86 drums (34.4MT) or 89 drums (35.6MT).The overriding requirement is to deliver a weight as close to the contracted weight as is reasonably possible.
3. A variation in the total gross weight of each release within 0.50% between the holding warehouse determined gross weight and the Sellers/Producers weights is permissible.
Should the warehouse gross weights fall outside of the 0.50% variance, this shall not be reason or outright rejection - Buyer may either accept the declared net weight(s) or elect to have the parcel(s) checked for net weight. Should the net weight(s) then established by the holding warehouse prove to be different to the Sellers/Producers weight(s), the weighing costs shall be for the losers account.
If on weighing the warehouse establishes that the net weight falls outside the 2% tolerance, the Buyer has the right to either accept the parcel(s) as a good delivery, completely reject the parcel(s), or ask for a replacement parcel.
For parcels that are only gross weighed, Seller shall be responsible for handling any claim for weight variance, provided that the parcel gross weight released is unchanged. In the event that the holding warehouse has wrongly established the released gross weight, then the holding warehouse is to be held responsible.
Where any parcel has been net weighed and it is found that the holding warehouse has established a wrong released net weight, then the holding warehouse is to be held responsible.
4. Lot size. Deliveries for those listed materials, whether complete or part, shall be in lots or multiples of:
- Silicon Si 20,000 kilos
- Manganese Mn 10,000 kilos
- Magnesium Mg 10,000 kilos
- Roasted Molybdenum Concentrates Mo 10,000 kilos
- Ferro-Molybdenum Mo and Fe 10,000 kilos
- Ferro-Tungsten W and Fe 10,000 kilos
- Ferro-Vanadium V and Fe 10,000 kilos
- Antimony Sb 5,000 kilos
- Chromium Cr 5,000 kilos
- Cadmium Cd 5,000 kilos
- Titanium Ti 5,000 kilos
- Bismuth Bi 1,000 kilos
- Cobalt Co 1,000 kilos
- Arsenic As 1,000 kilos
- Selenium Se 500 kilos
- Tellurium Te 500 kilos
- Indium In 50 kilos
- Germanium Ge 50 kilos
- Gallium Ga 50 kilos
- Mercury Hg 50 flasks, each 34.5 kilos net
5. Sub Packing - Where material is delivered in a larger unit of packing (for example a 1 MT wooden case or a 1 MT pallet) with smaller packing within (for example boxes/cartons of Cadmium or cans of Selenium) then, if the unit of sub packing is not uniform a detailed packing list showing individual gross and net weights of each unit of sub packing is to be provided at the time of release. Such requirement does not apply when the sub packing is only bags.
6. Where the Contract quantity is other than a multiple of the relevant figure above, delivery shall be made in one lot in one warehouse unless otherwise agreed at the time the contract is made.
7. Each minimum lot must comprise of material of only one country of origin.
8. Each delivery, or partial delivery where permitted, shall be the subject of only one warrant or warehouse release, although it may involve multiple reference numbers or warrants within the same warehouse company concerned.
Partial deliveries - Each warehouse release reference shall - in the event of any contractual claim for weight or quality - be taken to be one lot and any earlier, or subsequent partial delivery, shall not be automatically deemed to be a bad release.
9. Each part delivery, where permitted, shall be subject to a maximum net weight variation of plus or minus 2 percent. Exception: Mercury shall have no tolerance. PGM's 5 percent plus or minus.
10. No partial delivery may be made for materials not listed as above, unless agreed at the time the Contract is made.
11. The weights - for basis of payment, for an in warehouse release, shall be the net weight advised by the Seller and/or determined by the warehouse, or an Association listed independent weigher.
1. Packing of material shall be in a suitable condition for allowing onward delivery by land and or seas. It is the Seller's responsibility to ensure that packing complies with IMDG regulations.
2. In the case of delivery under original producer packing contract, packing damaged in transit shall be accepted, so long as they are suitable for onward shipment. Packing thereby resealed for this reason is an acceptable delivery. When damaged original producer packing is, in the opinion of the warehouse, no longer suitable for onward shipment then an Association listed independent superintendent or surveyor must certify that the material came from the original packing; such packing shall be an acceptable delivery.
It is the responsibility of the Buyer to prove, if any doubts exist, whether the packing is original or not; variation in net weight and or colour may not, in itself be sufficient reason.
Exception: The above shall not apply to material re-packed for reasons of neutrality and declared as such at the time of contract.
1. When a material is described as being of a particular country of origin on the face of the contract, it shall be a condition of the contract that the material shall be of that country of origin.
2. Unless otherwise agreed at the time of contract, Seller may deliver material of any duty or tax status.
1. Delivery of materials, when on a warehouse basis, shall be by Warehouse telex or fax release or by Warehouse warrant(s), which shall describe the goods, state the number of packages and the declared weights.
2. The normal basis of Warehouse telex or fax release shall be unconditional. Should, at the time of contract, it be agreed that the release is to be conditional, then a procedure along the lines of 1.4 should be utilised.
3. Time of delivery shall be a strict condition of the contract and shall be of the essence of the contract and, for 'in warehouse release" shall be in accordance with the Warehouse Procedures which have been established and published by the Association.
4. Delivery date terms shall be defined as:
"to", "until", "from" and words of similar import include the date mentioned.
"after" excludes the date mentioned.
"first half" of a month runs from the 1st to the 15th day of the month inclusive.
"second half' of a month runs from the 16th to the last day of the month inclusive.
"beginning" of a month or "early" in a month runs from the 1st to the 10th of the month inclusive.
"middle" of a month runs from the 11th to the 20th of the month inclusive."end" of a month or "late" in a month runs from the 21st day to the last day of the month inclusive.
"on or about" allows delivery to be made during a period from five days after the date mentioned, both end days included.
"on" shall be on the day stipulated in the contract.
"immediate" or "spot" shall be within two working days from date of concluding the contract and implies that the material is at the point of delivery.
"prompt" shall be within ten calendar days from the date of concluding the contract: time being decided by the local time at the location of the goods. The period is not extended if the tenth day falls on a weekend, or a public holiday in the location of either the goods or the Seller.
5. Seller has the right to make delivery, or part delivery where permitted, at different times and in different warehouses during the delivery period, subject to compliance with the lot size and multiple conditions.
"first and/or last week"
If a 'week' is specified, it shall be by date of week commencement, or week number.
Specification such as 'first' or 'last week' should not be used.
In the event that such a definition is nevertheless used, then the first/last week shall be defined as:
the first (or last) seven calendar days of the month.
6. Deliveries or warehouse releases being made on the last day of the contractual period shall, unless otherwise stated in the contract, be made and notified to the Buyer (by telex, fax, cable or otherwise in writing) not later than 4 pm. at the location of the goods or 4 pm. at the location of the Buyer's principal place of business, whichever is the earlier.
Should the last day of the contractual periods fall on a Saturday, Sunday or Public Holiday at the place of delivery, then the last day of the contractual period shall be deemed to be the previous working day.
1. The normal basis of payment, unless otherwise agreed, shall be net cash, with presentation of documents either direct to Buyer or through a bank.
2. Where documents are presented through a bank, release is deemed to have been effected only when original contractual documents have been delivered to Buyer's nominated bank and the Seller has supplied the Buyer with true and complete copies of the original documents and informed the Buyer in writing that these original documents are in the possession of the Buyer' bank who is instructed to release them upon payment. Should for any reason the Buyer, within two working days in the country of the Buyer, fail to advise the Seller of his nominated bank after receipt of request for same, then the Seller has the right to proceed through his own bank and release is deemed to have been effected as and when original documents are presented to the Seller's bank and Buyer notified accordingly in writing as above. All bank costs for presentation of documents are for the account of the seller, unless specifically otherwise agreed.
3. Presentation to a bank will not be good delivery of documents unless the Seller takes steps to ensure that the bank presents the document of title to the Buyer in good time; the bank being merely an agent of the Seller, unless given authority by the Buyer to accept and pay for the documents.
4. Where both parties agree at the time of contract to a conditional release, this shall take the form of a release by the Holding Warehouse to the Buyer to the following general format:
Holding confirmation prior to release
To: [Buyer’s details]
CC: [Seller’s details]
From: [Warehouse’s details]
On the request of [Seller] we confirm holding for your account the parcel(s) as detailed below:
Gross weight: - as ascertained by us
Net weight: - said to weigh or as ascertained if weighed
Marks and Numbers:
Stored in our warehouse:
Under .. conditions
Which will, except in case of force majeure, be released to your order irrevocably only upon our receiving a written confirmation directly sent from Buyer’s bank showing contract number / invoice number, confirming that payment in the amount of [currency and amount] has been unconditionally and irrevocably transferred for immediate value date by SWIFT / telegraphic transfer to:
[Seller’s bank details]
We confirm that the above parcel(s) is stored for account of the Seller and that we shall not accept any other release of delivery instructions until [date and time].
Please note that if the bank’s written confirmation is not received by us latest [date and time] (3 working days from the date of this release) then our undertaking as contained in this holding confirmation will automatically expire, without any notice being required, and shall be of no further force and effect.
1. The following minimum contractual documents shall be provided by the Seller to Buyer:
2. (i) "In Warehouse Releases" - Warehouse Warrant, or Warehouse telex/fax/cable Release.
(ii) Non "in warehouse" deliveries - Bills of Lading, delivery notes etc., as agreed between contracting parties.
3. Signed Commercial Invoice, stating the Origin of material
4. Sellers and/or Producer's (or other mutually agreed) detailed Weight Certificate, showing gross weight confirmed by the holding warehouse and the individual gross and net weights of each unit of packing.
5. Seller's or Producer's (or other mutually agreed) Quality Certificate, showing quality in conformity with description of material. It is permissible to present combined documents.
6. The document of title for an "in Warehouse" transaction shall be a Warehouse Warrant or warehouse confirmation of release to Buyer; it is the Sellers obligation to ensure that this document is presented to the Buyer within the time stipulated in the contract.
7. All relevant documentation shall show the gross weights, in addition to the net weights.
Exception: Gross weights are not required for Mercury.
In Warehouse releases: "Said to Weigh" gross weights shall not be acceptable.
8. Global Certificates of weight and or quality shall be acceptable, provided that the lot(s) tendered are clearly identified as to weight and or quality, as covered by the larger quantity in the Global certificate.
The term 'Global Certificate' shall refer to an Inspection and/or Sampling and/or Assay certificate for one defined parcel from which part deliveries are made. The document presented may include other parcels (for example with different grades) but then each parcel must be shown to be segregated and clearly identified, by way of markings, batch numbers etc.
It is taken as understood that if a contract calls for an Independent Assay Certificate, then the inspection and sampling report relating to the assay Certificate shall also be provided.
Exception: In respect of Russian/CIS Cobalt, an original and or copy of a Russian/CIS Global Analysis Certificate and/or Independent Global Analysis Certificate - the latter accompanied by a related Representative Sampling Report (covering a minimum 20 percent across the whole of the original sampled parcel plus a 100% visual examination for detection and exclusion of any "rogue" ingots), both having been issued by an Association listed independent sworn assayer/sampler - shall be an integral part of the contract.
1. Claims in respect of weight and or quality shall be notified by the Buyer to the Seller as promptly as reasonably possible after transfer of title and are to be submitted within forty five days for weight differences and six months for quality claims. If required, claims shall be supported by weighing and/or sampling and assay certificates from an independent superintendence and/or samplers and assayers whose name is on the list maintained by the Association.
Such certificates shall show that there is prima facie evidence establishing the identity of the goods and that the packing is intact, allowing for such unpacking as may have been necessary to examine the goods.
2. Any dispute arising out of a contract, which cannot be resolved by negotiation, is to be submitted to arbitration, which shall be conducted under the Associations published rules; another arbitration body may be used if mutually agreed upon.
Members' attention is drawn to the facility which exists whereby brief details of a contractual problem may be submitted to the Committee, in order that an impartial consensus view, based on the background of committee members combined experience, may provide a clarification, thereby hopefully assisting the parties to resolve their problem and so obviate the need to ultimately proceed to arbitration.
3. It shall be expected of members that principal point(s) of contractual law arising from an arbitration may be disseminated to the Membership - without the divulging of the concerned parties names - to enable other members to thereby avoid a similar problem arising.
Neither the Minor Metals Trade Association nor the Committee nor any officer nor the Secretary thereof nor any Arbitrator shall be under any liability whatsoever whether in contract in tort or otherwise to any Member of the Association or to any party to any contract which incorporates in whole or in part the Association Regulations, Terms and Conditions of Trade for any act or omission or in connection with the giving of any advice or guidance or any consequences of any thereof.
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