Standard Refining Conditions
Set forth below is the updated Standard Refining Conditions that applies to all refining performed by United Precious Metal Refining, Inc. along with a statement concerning the USA Patriot Act. This policy supersedes all prior policies and understandings regarding refining matters. The USA PATRIOT Act, is designed to detect, deter, and punish terrorists in the United States and abroad. The Act required by the Department of the Treasury prescribes regulations that will establish minimum standards for the identification and verification of customers in connection with the acceptance of refining material. These regulations require manufacturers, refiners, wholesalers, retailers and any other entity engaged in the business of purchasing and selling precious metals precious stones or jewelry to obtain certain information such as name, physical address, and identification number. Customer information will be kept confidential. This information will not be shared with anyone outside of our company and federal law requires us to safeguard customer personal information.
1.1 In these conditions, unless the context otherwise requires: “The Material” means all substances and material delivered to us by the customer for refining.
1.2 All refining transactions between us and the customer shall constitute the customer’s sale of the Material to us and our purchase of the Material from the customer.It is the expressed intention of the parties that all refining transactions between us and the customer shall not constitute the customer’s bailment of the Material.The customer acknowledges and agrees that no provision of these conditions, or of any provision of any prior or subsequent contract or agreement between us and the customer, shall be offered or relied on as evidence that any refining transactions between us and the customer are or are intended to create a bailment.
2. Acceptance and Variation.
These conditions shall apply to all our contracts for refining subject to any variations agreed by us in writing through one of our authorized personnel. Any quotes for refining shall only be valid for a period of six (6) months from the date of the quote. If the terms and conditions stated in the customer’s order are inconsistent with these conditions, or if they contain a provision purporting to override these conditions, our acknowledgement of order shall constitute a counter-offer and the customer shall be deemed to have accepted these conditions unless the customer notifies us to the contrary within 7 days after the date of dispatch of our acknowledgement of order. In such event, the formation of a contract shall be subject to negotiation. In no event, however, shall any provision of any prior or subsequent contract or agreement between us and the customer, or any provision of any prior or subsequent document arising therefrom or relating thereto, be deemed to control over, or supersede, the provisions of sections 1.2 of these conditions.
The customer warrants that it is the sole legal beneficial owner of the Material and has good and marketable title to the Material, and has full power and authority to sell the Material to us, and that the Material is sold to us free from all liens, charges and encumbrances or other adverse rights or interests whatsoever.
This contract is subject to all necessary licenses being granted to the parties
5. Health and Safety.
5.1 The customer shall ensure that the Material, so far as is reasonably practicable, that the substance is safe and without risks to health when properly used.
5.2 The customer shall also give adequate information about the physical and chemical nature of the Material and indicate any possible hazards that may arise during treatment.
5.3 We will not accept Material which is radioactive or, except by special arrangement, which:
5.3.1 is explosive;
5.3.2 is liable to spontaneous combustion;
5.3.3 contains organo-metallic compounds; or
5.3.4 contains deleterious or penalty elements as specified in the specific terms of the contract.
The customer shall ensure that all Material is packed safely and securely so as to conform with any laws, rules or regulations governing the transport of goods. In particular, Material likely to contain substances of a hazardous nature must be clearly marked as such with appropriate warning labels giving as much information as is practicable. Inadequately labeled Material may be held after receipt pending further information on their content. Any delays incurred as a result will be added to the quoted date for metal availability. Unless otherwise agreed, packing shall be non-returnable. The cost of packing material and containers shall be the responsibility of the customer.
7.1 The customer shall indemnify us and/or any third party to whom we may sub-contract the work which is the subject of this contract (“the Work”) against any and all actions, proceedings, losses, claims, costs, damages and expenses whatsoever:
7.1.1 in respect of loss of life, personal injury or damage to property arising directly as a result of:
- any defects or health hazards in the Material; or
- any instruction or false or misleading information given or supplied by the customer in connection with the execution of the Work;
7.1.2 resulting from the customer’s warranty under paragraph 3 being untrue in any respect.
7.2 Nothing contained in condition 7.1.1 shall exclude or restrict any liability for death or personal injury resulting from our negligence or that of our employees.
7.3 The customer hereby appoints us as its agents for the purpose of granting an indemnity in identical terms to that contained in this condition 7 by the customer to any third party to whom we sub-contract the Work.
8. Delivery, Risk and Insurance.
8.1 Materials shall be delivered free to our works as specified in the contract between 8.30am and 4.30pm Eastern Standard Time Mondays to Fridays, public holidays excepted. All shipping charges are the responsibility of the customer. The Material shall remain at the customer’s risk until completion of unloading at our works in the presence of our duly authorized agent, at which time title to the Materials shall be deemed passed from the customer to us, the customer shall be deemed to have sold the Material to us, and we shall be deemed to have purchased the Material. The customer shall insure the Material.
8.2 Unless otherwise agreed, the value of such insurance shall be based C.I.F. plus a margin of 10%.
9.1 All Materials shall be accompanied by an advice or delivery note giving the gross, tare and net weight of each container and a description of the contents. The customer shall ensure that on or before delivery of the Material we receive full instructions as to the precious metals to be determined by analysis in the evaluation of the Material and their estimated fine content. On the release of the material into our refining process in accordance with paragraph 11 hereof, the customer shall have no further rights in respect of any material for which full instructions were not given prior to delivery, or any proceeds arising from the sale of such material.
9.2 The customer shall take back waste Material shipped to us for recovery, and shall be deemed to have repurchased such waste Material, if the shipment is not completed in accordance with the contract.
10. Weight discrepancies.
Any serious discrepancy between the gross and/or net weight as advised to us by the customer and the actual weight determined in accordance with condition 11 shall be notified immediately by us to the customer who shall be responsible for initiating any insurance claim.
11. Weighing and Sampling.
11.1 All Materials shall be weighed gross on receipt. All Materials shall thereafter be weighed and sampled at our works in the usual technical manner and at the time appointed by us.
11.2 Upon completion of the weighing and sampling operations, we shall be entitled to release the Material for processing in our works unless written instructions to the contrary are received prior to or at the time of delivery of the Material to us.
11.3 Where such instructions are received and where the customer is dissatisfied with the outturn results, he shall be entitled to have his Material resampled and assayed at his own expense provided such instructions are given to us within one week of the issue of our outturn notice.
Samples drawn shall be assayed at our works to determine the payable precious and base metal contents specified in the contract.
13. Form and Quality of Material.
13.1 The Material may arrive at our facilities in a form that may require extra handling or it may contain elements that are detrimental to the refining process and add to the ultimate cost of refining. In addition to the fee for refining we reserve the right to add charges to the quoted rates based on a variety of reasons including, but not limited to, the complexity, form or composition of the materials, causing additional handling, processing, analysis or labor to complete the refining process. These charges can be paid by a decrease in the payable metal. We will only pay on precious metals that can be recovered during our refining process.
14. Weight Basis.
Where the contract contains terms relating to metal recoveries and penalty and deleterious elements, these terms shall be calculated by reference to the net weight of the Material received as determined in accordance with paragraph 11 above.
15. Delivery Dates.
15.1 Although we will make every effort to meet the date of our outturn forecast, such date is an estimate only and in no circumstances shall we be liable for any loss of value, direct, indirect or consequential, sustained by the customer through market fluctuations or any other cause whatsoever arising out of late delivery of metal by us.
16. Force Majeure.
16.1 In the event of the normal course of our operations being prevented, interrupted, hindered, delayed or rendered unduly expensive by any cause whatsoever beyond our control, or by lock-out by us of our own employees, we shall promptly give notice thereof to the customer and shall have the right to defer the performance of the contract for as long as such force majeure shall continue.
16.2 If the duration of the force majeure shall exceed a period of 14 days and the parties, negotiating in good faith, cannot within a reasonable period thereafter agree on a new program for the performance of the contract, either party shall be entitled to cancel the contract by giving written notice to the other to that effect within 7 days after the end of such 14 day period.
17.1 Unless otherwise agreed or unless deducted by us from payable metal, our refining charges are payable immediately on the rendering of our invoice.
17.2 We shall be entitled to withhold delivery of any metals or money due to the customer until such time as all amounts due from the customer to us shall have been paid. In addition, in case of any default by the customer in payment of any monies due to us we shall have the right at our absolute discretion to sell any metal held for the customer or standing to the credit of his account and apply the proceeds of such sale in or towards the satisfaction of such indebtedness.
18. Applicable Law; Jurisdiction; Venue.
This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its principles of conflicts of law. The County of Erie in the State of New York is hereby designated as the exclusive forum for any action or proceeding arising from or in any way connected to this Agreement, and the parties hereby expressly consent to the personal jurisdiction of the state or federal courts in this forum.
Any controversy or claim arising from or in any way related to this Agreement or the breach thereof, may be settled by arbitration if all parties agree in Rochester, New York in accordance with the rules of the American Arbitration Association. The arbitrator’s decision will be final, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
The headings used in these conditions are for convenience only and shall not affect their interpretation.
Any notices to be served hereunder may be given by first class mail or facsimile to the parties at their registered office for the time being or their last known place of business shall be deemed served, 48 hours after mailing posting, and in the case of facsimile, immediately on transmission. In proving that proper notice has been given, it shall be sufficient to prove that the notice was properly addressed and mailed or transmitted.