MONTH, SELLER WILL INVOICE BUYER BY
SENDING AN INVOICE TO THE COMPETENT AUTHORITY FOR THE PRODUCT DELIVERED (OR FOR
WHICH BUYER IS OBLIGATED TO PAY PURSUANT TO SECTION 2.4 DURING THAT MONTH), AND
THE CORRESPONDING PRODUCT PRICE.
4.2.2
IF AT THE TIME OF SELLER'S
RECEIPT OF A BILL OF LADING OR THE END OF A MONTH, THE PRICE FOR THE PRODUCT
SOLD HAS NOT BEEN DETERMINED, SELLER WILL ISSUE A PROVISIONAL INVOICE BASED ON
THE AVERAGE PRODUCT PRICE OF PRODUCTS DELIVERED IN THE PRIOR MONTH IN WHICH THE
PRODUCT PRICE WAS KNOWN (A "PROVISIONAL INVOICE").
IF A PROVISIONAL INVOICE IS
ISSUED, BUYER SHALL PAY 90% OF THE AMOUNT OF SUCH PROVISIONAL INVOICE PURSUANT
TO THE TERMS OF SECTION 4.2.
SELLER SHALL ISSUE A FINAL INVOICE AS SOON AS THE
CORRECT PRODUCT PRICE IS KNOWN, WHICH SHALL SET FORTH THE DIFFERENCE, IF ANY,
BETWEEN THE AMOUNT PAID PURSUANT TO THE PROVISIONAL INVOICE AND THE CORRECT
PRODUCT PRICE.
TO THE EXTENT THAT THE ACTUAL PRODUCT PRICE EXCEEDS THE AMOUNT
PAID PURSUANT TO THE PROVISIONAL INVOICE, BUYER SHALL PROMPTLY PAY SUCH
DIFFERENCE TO SELLER.
TO THE EXTENT THAT THE ACTUAL PRODUCT PRICE IS LESS THAN
THE AMOUNT PAID PURSUANT TO THE PROVISIONAL INVOICE, SUCH AMOUNT SHALL BE
CREDITED AGAINST THE AMOUNT OWED BY BUYER ON THE NEXT INVOICE ISSUED BY SELLER
TO BUYER.
4.2.3
THE AMOUNT SHOWN ON SUCH
INVOICE (OR 90% OF THE AMOUNT IN THE CASE OF A PROVISIONAL INVOICE) WILL BE DUE
AND PAYABLE BY WIRE TRANSFER TO AN ACCOUNT IDENTIFIED BY SELLER WITHIN 30 DAYS
OF THE ISSUANCE OF THE INVOICE.
IF BUYER FAILS TO PAY ANY INVOICE AMOUNT DUE
PURSUANT TO THIS AGREEMENT ON OR BEFORE THE APPLICABLE DUE DATE, INTEREST ON THE
UNPAID AMOUNT AT A RATE PER ANNUM EQUAL TO THREE-MONTH LIBOR PLUS 1.5% WILL
ACCRUE DAILY FROM THE APPLICABLE DUE DATE UNTIL THE DATE THE UNPAID AMOUNT IS
PAID AND SHALL BE DUE AND PAYABLE AT THE TIME WHEN THE UNPAID AMOUNT IS PAID OR
OTHERWISE WITHIN FIVE BUSINESS DAYS AFTER DEMAND BY SELLER THEREFOR.
4.3
Assaying Adjustments.
4.3.1
BUYER HAS THE RIGHT TO
APPOINT A NEUTRAL SAMPLER (THE "SAMPLER"), APPROVED BY SELLER (WHICH APPROVAL
WILL NOT BE UNREASONABLY WITHHELD OR DELAYED), TO TAKE SAMPLES OF THE PRODUCTS
AT THE DELIVERY POINT.
IN THE EVENT THAT BUYER DETERMINES THAT SELLER HAS
DELIVERED NON-CONFORMING PRODUCT WHICH SHOULD RESULT IN AN ADJUSTMENT TO THE
PRODUCT PRICE (AN "ASSAY ADJUSTMENT"), BUYER WILL NOTIFY SELLER IN WRITING OF
SUCH DETERMINATION (ALONG WITH ITS RESULTS OF ANALYSIS OF SUCH PRODUCT) WITHIN
60 DAYS OF DELIVERY OF SUCH PRODUCT.
BUYER AND SELLER WILL APPOINT A MUTUALLY
AGREEABLE THIRD PARTY TO ASSIST IN THE RESOLUTION OF SUCH MATTER (THE "REFEREE")
WITHIN 30 DAYS OF DELIVERY OF SUCH NOTICE.
IF BUYER AND SELLER FAIL TO APPOINT
THE REFEREE WITHIN SUCH 30-DAY PERIOD, SGS GROUP (OR SUCH OTHER MUTUALLY
AGREEABLE THIRD PARTY, IN THE EVENT THAT SGS GROUP OR ITS SUCCESSOR CEASES TO
EXIST) WILL APPOINT THE REFEREE AT EITHER BUYER'S OR SELLER'S REQUEST.