Sales and Purchase Agreement
Date: November 5th, 2024
1) PARTIES
a) RAFFINERIE D’OR xxxxxxxx a private company registered in the Republic of Mali,
having a registration xxxxxxxxxxxxxxxx with its registered address at Rue
xxxxxxxxxxxxxxxxxxxx, Mali and herein represented by its Director xxxxxxxxxxxx
(the "Seller”); and
b) xxxxxxxxxxxxxxxxxxxxxx, a legal entity registered with xxxxxxxxxxxxxxxxxunder
Trade License No. xxxxxxxxx, having its registered office at ,xxxxx Administration
Building, xxxxxxxxxxxxxxxx, United Arab Emirates and herein represented by its
Director xxxxxxxxxxxxxx (the “Buyer”).
Buyer and Seller are collectively the “Parties”.
c) The Parties desire to enter a trading relationship to the mutual and expected benefit
hereto. The Parties enter into this Agreement to establish the terms, conditions and
mutual covenants upon which they wish to transact this Sales and Purchase
Agreement and in consideration of which the Parties hereto agree as follows.
2) DEFINITIONS
Assay Report means a chemical laboratory report issued by the Assayer and
disclosing results of assay ascertaining each shipment of the Gold fully conform the
Specification (including Purity). The Assay Report shall confirm, inter alia, that net
weight of shipment of the Commodity complies with the Accepted Net Weigh Deviation
limits.
Bank Guarantee means irrevocable Bank Guarantee issued by XXXXXXX in the form
of Standby Letter of Credit (SBLC)/SBLG or any financial instrument agreed by the
Parties.
Business Day means a day other than Saturday, Sunday or public holiday in the UAE
where banks are open for business.
CIS means Customer Information Sheet or Account Opening Form that must be
submitted prior to any business transaction.
Fixing means the Seller's nominated fixing rate, whereupon the price of gold is fixed
on the Gold Market / Bullion Desk in accordance with the rules of the London Bullion
Market Association (LBMA).
KYC means Know-Your-Customer procedure to be conducted prior to any business
transaction.
Net Weight Certificate means a report issued by the Assayer, asserting a chemical
net weight of the particular shipment of the Commodities.
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DNGM means Direction Nationale de la Géologie et des Mines - the authorised body,
legally permitted to grade, assay, value, process buy and sell precious minerals and to
license agents in the Republic of Mali.
UAE Assayer means a certified UAE based assayer nominated by the Buyer and pre-
agreed with the Seller.
Mali Assayer means a certified Mali based assayer nominated by the Seller and pre-
agreed with the Buyer.
Purity means the percentage of pureness of Gold (Au) in a Gold Dore Bar.
Country of Import means UAE.
Place of Destination means customs border of the Country of Import.
Refine/Refining means refining (cleaning) the gold to a Purity level of 999.50 or better,
and the issuance of the refinery certificate.
Transport Company means Emirates/Transguard Group.
Specifications means the detailed specifications of the Commodity including quantity,
quality, fineness, packaging, etc.
3) COMMODITY DESCRIPTION
The Commodity to be sold under this Agreement shall have the following
specifications (the “Specifications”):
Commodity: Bullion Bars, AU
Fineness: Minimum 999.50 purity
Country of Origin: The Republic of Mali and/or any country other than
conflict-
Affected and High- Risk jurisdictions as per OECD Due
Diligence Guidance for Minerals from Conflict-Affected
and
High-Risk Areas and other relevant laws and regulations
Packing: International Standard Export Package Boxes
4) VOLUME
a) The Parties have agreed that the volume of the Commodity is fixed in the
Shipment Plan (Annex №1).
5) PRICE DETERMINATION AND FIXING
The price shall be fixed on the day of the receipt of the Assay Report from the UAE
Assayer by the Buyer ("Fixing Date") and in accordance with the following formula:
Final Price = (Gross Weight x Purity Percentage) x (LBMA Price–1.5%).
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As the LBMA amount, the Parties agree to take those rates which exist as of the day
of price fixing.
The price fixation based on the LBMA amount shall be performed by means of
exchange of emails between the Parties and other means of communication, as
agreed between the Parties.
6) COSTS
The Parties hereby agreed the following costs shall be borne solely by the Seller:
a) All fees, costs and expenses connected with delivery, storage, security of the
Commodity from the Seller to the Place of Destination, including but not limited to
fees of the Transport Company, freight (if required) and insurance, document
processing and other expenses imposed on or required up to delivery of the
Commodity to the Place of Destination.
b) All customs expenses, costs, fees, levy, penalties and other customs expenses
connected with the delivery of the Commodity up to the Place of Destination.
c) All respective Taxes imposed during the delivery of the Commodity from the Seller
to the Place of Destination.
The following expenses shall be borne by the Buyer at his expense:
a) Cost of Assay Report performed by the UAE Assayer.
b) Customs fees and costs for completion of the customs formalities in the Country of
Import as well as procuring receipt of permissions, Licenses and other necessary
documents in the Country of Import.
c) Refining of the Commodities at the Refinery of the Buyer in the Country of Import.
d) All fees, costs and expenses, Taxes and customs fees, connected with delivery,
storage, security of the Commodity from Place of Destination to the final place of
destination or to the Refinery.
e) All respective Taxes imposed on and after the moment of ownership title transfer.
7) PAYMENT TERMS
a) The Parties have agreed that payment for the Commodity shall be done in US
dollars or any other agreed currency.
b) The payment for the Commodity shall be done by the Buyer to the Bank
Account of the Seller no later than 3 Business Days upon receipt of the following:
● The Assay report from UAE Assayer.
● Proforma commercial invoice issued by the Seller.
● Evidence of delivery to and acceptance by the Buyer of the Commodity in
accordance with the Delivery terms of this Agreement.
● Delivery documents as specified in Clause 10 of this Agreement.
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● The Seller has provided to the Buyer all documents and evidence necessary
to pass the KYC an CIS procedure in form and substance acceptable to the
Buyer.
● All representations and warranties of the Seller pursuant to this Agreement
are true, correct, complete and not misleading.
● Any other documents, evidence accepted by the Parties.
8) BANK GUARANTEE
The Buyer shall procure an irrevocable Bank Guarantee in favour of the Seller. The
Bank Guarantee shall be issued by xxxxxxxxx UAE as agreed between the Parties
and shall cover the maximum amount due under this Agreement in accordance with
Shipment Plan (Annex 1) from the Buyer or as otherwise agreed upon by both
Parties. The Bank Guarantee shall be duly accepted by the Seller in the form of a
written notification to the Buyer or via SWIFT message from the beneficiary Bank.
9) DELIVERY
a) The Commodities shall be delivered DAP Place of Destination as per Incoterms
2023 within the terms of this Agreement, subject to the Clause 6 hereof.
b) No later than 30 calendar days upon execution of this Agreement and issuance of
the Bank Guarantee (as stated in Clause 8.) the Seller shall deliver to the Buyer
the respective shipment of Commodity. The volume of shipment shall be stated in
the Annex 1.
c) The Seller shall procure the Transport Company to deliver the Commodities to the
Place of Destination. The Commodities shall pass the Acceptance Procedure as
specified in the Clause 11 herein. Upon customs procedures, the Buyer at his own
expense shall procure a delivery of the Commodities to the final place of
destination.
d) It is agreed and accepted by the Parties that the Commodities shall be imported by
the Buyer to the territory of the Country of Import under customs regulation of the
United Arab Emirates. The customs clearance of the Commodities shall be
performed by the Buyer at his own expense at the Place of Destination and the
territory of the Country of Import.
e) The Commodities shall be insured by the Seller against all risks until acceptance
by the Buyer.
f) The Seller is obligated to notify the Buyer at least 2 (Two) Business Days prior to
arrival to the Place of Destination of all the details of the delivery and send
necessary documents at the Buyer’s request.
g) The obligation of the Seller to deliver the Commodities is considered fulfilled when
the Commodities are delivered to the Place of Destination.
h) Each shipment of the Commodities should have individual and appropriate
packaging (tare) and wrapping allowing its quality and safety to be preserved
during transportation.
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Each shipment of the Commodities should be divided into packages, the amount of
which shall not exceed 25 (twenty-five) Kg each. The Seller shall be obliged to
provide a unit of cargo for each of such packages correspondingly. Packaging
shall be Internationally accepted air packaging.
The Seller hereby accepts and agrees that the packing (tare) of the Commodities
itself shall be a non-returnable packing (tare) (“last-trip packing”) and the Buyer
shall not be responsible for compensation of the cost of the packing (tare).
i) The packing shall be sealed and stamped by the authorised DNGM-Lab straight
after the assay via a technique, preventing any third party and the Seller from
interfering into the sealed package and its content. To avoid any doubts, the Seller,
the Transport Company and other third parties are prohibited from interfering with
the sealed package in any case, except during customs formalities on the territory
of Country of Import (if required) and during final acceptance of the Commodities in
the Place of Destination. Package opening before the arrival at the Place of
Destination is allowed only in the joint presence of the Seller and the Buyer (or
their authorized representatives).
j) The Seller shall be responsible for any damage to the Commodities and/or packing
integrity and/or packing seal integrity and shall replace the damaged Commodities
with new ones at his own cost in the shortest possible time but within 10 (ten)
Business Days of the receipt of the Buyer’s notice.
k) Prior to delivery, the Seller shall be obliged to send to the Buyer by e-mail scan
copies of the documents specified in Article 10 below.
l) The delivery of Commodities should be accompanied by the original documents
consisting of but not limited to: Proforma Invoice, Packing List and any other
documents as requested by the Buyer.
10) DOCUMENTS
In a timely manner, the Seller (and/or its agents) shall ensure that the Buyer
(and/or its agents) are in receipt of the following documents/certifications:
• Evidence that all taxes and export procedures are in place (T1) (including the
prove of fulfilment of all the Customs formalities in the Export Country)
• Export permit
• Pro-forma Commercial Invoices
• Packing List
• Certificate of Origin
• Certificate of Ownership
• Tax Clearance Certificate
• Airway Bill
• A declaration that the Commodity is free and clear of encumbrance and non-
criminal origin and source. Letter confirming that the Commodity is from a non-
conflict zone and thus the purpose of selling the Commodity is not to finance
any prescribed organization in a conflict zone (ICGLR Format)
• Assay Report from Mali Assayer
• Assay Report Analysis from Assayer and by authorized DNGM Lab
• Transport Company certificate of confirmation of receipt of goods
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• Other as may be required for export and entry to the Place of Destination.
All above documents/certifications are to be issued by the relevant issuing
authorities.
11) ACCEPTANCE PROCEDURE
a) Immediately before packing the Commodities and handling and delivery of the
Commodities to the Transport Company at the Country of Origin, the Seller shall
be obliged to procure and obtain the Assay Report Analysis for particular
shipment of the Commodities authorised by DNGM. The Assay Report Analysis
shall be provided to the Buyer in accordance with the Clause 10 of this
Agreement.
b) Upon the delivery of the Commodities to the Place of Destination, the preliminary
acceptance act of the shipment of the Commodities shall be executed between
the Seller and the Buyer. To avoid any doubts, a particular shipment of the
Commodities shall be deemed as fully accepted, upon the receiving by the Buyer
of the Assay Report from UAE Assayer confirming the quality and net weight of
the Commodities subject to Clause 11 (d) of this Agreement.
c) The Seller, at its own expense, has right to send and procure due attendance of
an authorized representative of the Seller on each stage of the shipment delivery
in accordance with the Agreement (provided that, the fact of absence of the
Seller's representatives shall in no event be construed against the Seller):
d) Within 3 (three) Business Day starting the date of execution of the preliminary act
(as provided in clause 11 (b) herein), after customs clearance, melting and
sampling the UAE Assayer shall assay the current shipment of the Commodities
and issue the Assay Report and provide it to the Buyer. The Buyer shall without
undue delay share the Assay Report with the Seller.
e) Commodities should be accepted by the Buyer (or its authorized representative)
within 1 (one) Business Day. At the date of issuance of the Assay Report issued
from the UAE Assayer the Buyer shall notify the Seller of the acceptance of the
Commodities in writing.
f) It is agreed and confirmed by the Parties, that the net weight of the Commodities
factually delivered to the Point of Destination shall be in full conformity with the
Assay Report Analysis issued by authorised DNGM LAB. The Buyer has the right
to not accept the Commodities delivered to Place of Destination in case the
Fineness is below 999 purity in accordance with Assay Report from the UAE
Assayer. If such case appears, it is the subject of responsibility and cost of the
Seller to repatriate the Commodities.
All the payments done by the Buyer for the Commodities and all associated costs
in accordance with Clause 6 of this Agreement born by the Buyer shall be
reinstated by the Seller.
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The Parties hereby accept and agree that in case the Buyer during the package
review discover that the authorised DNGM’s seal and stamp of the package (as
required under Clause 9 (j) herein) are breached and/or damaged, the Buyer
shall be entitled for unilateral refusal from the current shipment of the
Commodities and demand to claim damages.
g) Seller shall be entitled to have his independent assaying/security company
present at UAE Assayer during the analysis of Commodity.
12) TRANSFER OF TITLE
a) Title to the Commodities shall pass from the Seller to the Buyer upon
confirmation by the Buyer of the acceptance of the Commodities in accordance
with Clause 11 (e) of this Agreement.
b) The Buyer shall bear the risk of any loss, deterioration, or damage from the
moment when the Seller is deemed to have fulfilled its obligation to deliver the
Goods.
13) NOTICES
Unless otherwise agreed in writing, any notices, statements, requests, or other
communications to be given to either Party according to this Agreement shall be
sufficiently made in writing and sent by post, email, postage paid, or by telegraph,
telex, facsimiles transmission or other means of data transmission directly to the
address of the Party specified for this purpose in this Agreement.
14) CONFIDENTIALITY
a) The Parties maintain absolute and total confidentiality concerning this
Agreement, except where legal or statutory requirements require
otherwise, including the disclosures due to a legal requirement, court order, or
government investigation.
b) The Parties acknowledge that the harm to the other Party would be substantial.
Therefore, the Parties agree to abide by the Customary International rules of non-
circumvention and nondisclosure as established by the International Chamber of
Commerce as long as the two Parties are transacting, with rolls and extensions,
from the date hereof.
c) All Parties, including persons indicated as individuals representing their
respective entities but as individuals herewith, declare not to circumvent
each other in this transaction, not to bypass or try to circumvent by having direct
contact with third Parties introduced by each other.
d) This document officially commits all Parties and their subsidiaries, employees,
shareholders, partners, workers and all other involved people. All the rules &
regulations of I.C.C. regarding confidentiality, non-circumvention and non-
disclosure apply to all the Parties of this Agreement and said rules & regulations
shall remain in full force for as long as the 2 Parties are transacting, with rolls and
extensions, from the date of this Agreement.
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15) GENERAL PROVISIONS
a) The Parties now agree that this Agreement shall become valid and operational if
and when signed and sealed in counterparts and until both Parties have fulfilled
their obligations.
b) This Agreement and all information obtained by one Party from the other Party
shall be confidential.
16) FORCE MAJEURE
a) Neither of the Parties shall be responsible for any failure to fulfil their respective
obligations under this Agreement if fulfilment has been prevented or curtailed by
any circumstances beyond the reasonable control of the Parties, as the case
may.
b) Compliance with any order, demand or request of any government or any
international, national, port, transportation, local or other authority or agency or of
anybody or person purporting to be or to act for such authority or agency, any
strike, lockout or labour dispute, adverse weather, perils of the airways or
embargos, delays of the plane due to breakdown always provided that nothing
contained herein shall relieve the Parties of any of their obligations under this
Agreement by the due dates or according to the provision of paragraphs which
obligations are absolute.
c) In circumstances of Force Majeure lasting more than ninety (90) days, the Parties
shall have the right to cancel the Agreement partially or in total. In such a case,
none of the Parties hereof shall have the right to compensation for possible
losses from the other Party.
d) The Party seeking relief shall advise the other Party as soon as practicable of the
circumstances causing the failure to fulfil its obligations. It shall then provide such
information as is available regarding the progress toward cessation of those
circumstances.
e) The Genuine and confirmable certificate issued by the respective Chambers of
Commerce in the Country where Force Majeure arises shall be sufficient proof of
such circumstances and their duration.
17) LIABILITIES AND PENALTIES
a) In case of violation of the Shipment plan specified by the Parties in the Annex
1 for 10 or more Business Days the Seller is obliged to pay penalty in the amount of
[TBD] % from the shipment price for each day of delay.
b) In case of violation of the Shipment plan specified by the Parties in the Annex
1 for 20 or more Business Days the Seller at the Buyer’s request must notify the
beneficiary bank (Bank of the Seller) which has advised Bank Guarantee to release
such Bank Guarantee according to the form specified in the Annex 2 to the present
Agreement. This clause is applicable in case of absence of outstanding payments
due from the Buyer.
c) In addition, in case of non-compliance with Clause 9 (b) of this Agreement
any expenses incurred by the Buyer due to the late shipment, including but not
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limited to cost of issuing of Bank Guarantee, storage fees or expedited shipping costs
the Seller shall reimburse the Buyer for such expenses upon presentation of valid
evidence of such expenses occurrence.
18) APPLICABLE LAW, LITIGATION AND ARBITRATION
a) The present Agreement is a purely commercial deal concluded following
international rules related to preparations, interpretation, execution of legality and
any other issues regarding the performance of the current Agreement, including
customary norms of honesty and confidentiality, as well as temporary suspension
of deliveries due to force - majeure circumstances.
b) The Terms shall apply and be deemed valid and enforceable by either Party.
Each Party shall be able to request a hard copy of the Agreement or any previous
electronically transmitted document.
c) The Agreement shall be governed by and construed in accordance with the Laws
of the United Kingdom, and the Court of the United Kingdom shall have exclusive
jurisdiction.
19) AMENDMENTS AND WAIVERS
a) This Agreement shall not be amended or modified, or any provision hereof
waived, except in writing and accepted by both Parties.
b) Any provision of this Agreement, which is declared unlawful or unenforceable by
a court of competent jurisdiction, shall not affect any other condition herein.
20) BANK DETAILS
Bank details of the Seller:
Name of Bank
Address
City
Country Mali
Account Number
Account Number
SWIT CODE:
Bank details of the Buyer:
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21) AUTHORITY OF SIGNATORIES
The Parties have entered this Agreement in good faith, and each shall use its best
efforts in the full spirit of cooperation to promptly achieve the purpose herein. A
facsimile/email of this Agreement shall be deemed legally binding as being fully
executed following the Parties herein and to include their heirs, executives,
administrators, and assignees.
22) VALIDITY OF AGREEMENT
a) This Agreement shall commence on the Signing Date and shall continue in full
force and effect for one (1) year.
b) This agreement is extended for a similar period, unless either party declares its
intention not to extend it one month before the expiration date.
c) The expiration of this Agreement does not release the Parties from fulfilment of
the obligations hereunder.
d) Either Party may terminate this Agreement prior to its expiration date by providing
written notice to the other Party at least 3 calendar months in advance. In the
event of early termination, the terminating Party shall not be liable for any further
obligations under this Agreement beyond the effective date of termination, except
for any outstanding payments or liabilities accrued prior to termination.
Termination shall not affect any rights or obligations that, by their nature, should
survive termination, including but not limited to confidentiality, intellectual property
rights, and indemnification provisions.
23) SPECIAL CONDITIONS
If the Party fails to perform its obligations under this agreement it has 7 business
days to remedy the non-performance, failing which the other party has the right to
terminate. It further supersedes all Agreements/agreements which may have been
negotiated and signed and put into legal existence to date between the Parties
regarding the specific transaction contemplated by this Agreement.
24) OTHER CONDITIONS
a) After the Agreement is signed, all previous negotiations and correspondence
between the Parties shall become null and void.
b) Any written alterations and appendices to this Agreement shall be valid only if
both Parties sign them.
c) All signed Appendices and Additions are an integral part of the present
Agreement.
d) All amounts due under the Agreement shall be paid in full without any set-off,
counterclaim, deduction or withholding.
e) Except for the cases expressly stipulated in the present Agreement, neither of the
Parties should bear responsibility for indirect losses resulting from performance
(non-performance) of the obligations under the current Agreement.
f) The original of this Agreement exists in English.
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g) Coordination of terms of the present Agreement made in writing and verified by
signatures and seals of the Parties' representatives shall be acceptable.
h) If such are present, grammar mistakes and misprints shall not be considered
contradictions.
25) CONCLUSIONS, DECLARATION AND SIGNATURES
a) All Parties to this Agreement hereby agree to be bound by the Terms and
Conditions stipulated herein.
b) IN WITNESS WHEREOF, the Parties have understood all the terms and
conditions of this Agreement and hereby agree to honour all clauses with the
privileges, rights and immunities pertaining therein, making this Agreement
effective on and as of the Effective Date upon signing by all Parties. This
Agreement is executed in multiple counterparts. Facsimile copies of the signed
Agreement are hereby accepted as originals and will be deemed to be valid and
effective for all purposes. The Parties will distribute the original copies among
themselves promptly.
c) The Parties hereto agree that they have signed stamped copies of this
Agreement and exchange the signed copy by authorised electronic mail address
mentioned below:
On behalf of the Buyer:
On behalf of the Seller:
Any message regarding execution of the present Agreement received not from the
authorised electronic mail addresses specified in this Agreement is considered
invalid and unenforceable.
d) Signed electronic copies by the Parties hereto are considered legally binding and
enforceable.
e) BY SIGNING BELOW, with the full understanding of the act of fraud, both Parties
abide by their corporate and legal responsibilities to this Agreement.
f) The electronic signature is valid and accepted as a hand signature when the
Agreement is coming directly from the email address of the Signatory OTHER.
Signed by
For and on behalf of
__________________
Signed by
For and on behalf of
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___________________
Annex № 1
To Sales and Purchase
Agreement
th
Dated November 5 , 2024
SHIPMENT PLAN
This Shipment Plan is made and entered into as of November 5th, 2024
Shipment Quantity (Kg)
December 10, 2024 200kg
January 10, 2025 200kg
February 10, 2025 200kg
Mars 10, 2025 200kg
April 10, 2025 200kg
May 10, 2025 200kg
June 10, 2025 200kg
July 10, 2025 200kg
August 10, 2025 200kg
September 10, 2025 200kg
October 10, 2025 200 kg
November 10, 2025, 200 kg
IN WITNESS WHEREOF, the Parties hereto have executed this Annex as of the day
and year first above written.
Signed by
For and on behalf of
__________________
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Signed by
For and on behalf of
___________________
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Annex № 2
To Sales and Purchase
Agreement
th
Dated November 5 , 2024
FORM OF RELEASE NOTICE
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