Pyromet Standard Terms and Conditions

1. Terms and Conditions: These Standard Terms and Conditions, shall apply to any and all transactions between Pyromet LLC ("Company") and The Customer (“Customer”). This agreement shall supersede any and all prior and/or contemporaneous agreements between Company and Customer, including but not limited to, confirmations, purchase orders, other terms and conditions, oral agreements or any other agreement whatsoever. Any documents or other instruments of the Customer or Company are for identification only and form no part of the agreement between Customer and Company which is governed by these Standard Terms and Conditions. Any purported amendment, addition, modification or waiver not in compliance with the provisions contained herein shall be void and unenforceable. No Modification, change or amendment of this agreement will be valid unless made in writing and signed by Company and Customer. If Customer fails to execute these Standard Terms and Conditions, Customer’s performance of Shipping Raw Material and/ or Purchasing Materials from Company shall be deemed acceptance by performance by Customer.
2. Shipping: All incoming Material shipped by Customer shall be accompanied by an invoice stating the Gross, Tare and Net weight of each container, as well as a description of the goods. Company’s weight of all incoming Material shall govern the transaction between Company and Customer. Customer shall insure that all shipped Materials are packed safely and securely and are properly labeled so as to conform to all laws and regulations governing the safe and environmentally compliant transportation of goods. In accordance with RCRA laws and regulations, Customer shall determine through process knowledge or testing if Material shipped to Company is considered “hazardous waste” under applicable local, state, and federal regulations, and shall abide by all regulations applicable to the sale and transport of said Material. Customer shall hold Company harmless and indemnify Company against any and all actions, proceedings, losses, claims, costs, damages, and expenses whatsoever, including but not limited to regulatory fine, loss of life, personal injury, and damage to property that arise from the processing, shipping and/or improper labeling of Customer’s Material. Customer shall be responsible for any settlement delay caused by Customer failing to adhere to shipping mandates above.
3. Inspection and Rejection of Material: Company reserves the right to reject Material from Customer for any reason whatsoever, including Materials that Company deems are unsuitable for processing or Materials contained in packaging that may have been damaged during shipping. All rejected Materials shall be returned to Customer at Customer’s expense. Should Customer desire their Material be processed in a certain manner, it is the Customer’s responsibility to segregate Material by lot and/or classification prior to delivery and identify said classification in writing. Company will comply with Customer’s request to segregate Material once Material is received, but Customer shall hold Company harmless for any commingling of Materials, should Material not be segregated prior to receipt. If Customer wishes to have an independent representative present at the processing of its Material, Customer shall promptly notify Company, in writing, prior to the receipt of goods by Company. Customer shall be responsible for any delays caused by third party representation. Upon request, company will retain a reserve sample of Material for assay confirmation for a limited time, not in excess of ten (10) days from which Company sends Customer settlement offer. The content of all Material shipped by Customer must adhere to, and comply with quoted sales terms. If Company receives Material that does not comply with the quality of Material quoted, Company shall requote pricing to reflect different contents. Should Company unknowingly processes said Material, Customer shall be liable for all associated processing costs and fees including shipments costs if Material is ultimately returned to Customer.
4. Risk of Loss/Insurance: Company bears no risk of loss, and is not responsible or liable for Materials or shipments damaged or lost in transit. Customer shall hold title to, and bear the risk of loss for Material delivered to Company until Customer accepts Company’s offer, if one is made, to purchase Material in accordance with these Standard Terms and Conditions. Unless otherwise agreed to in writing and signed by both Customer and Company, Customer, and not Company, shall be responsible for insuring Customer’s Material at all times.
5. Offer to Purchase: Before determining if Company will make any proposal to Customer to purchase Material, Company shall have the right to refine/process the Material to the point at which Company is able to make its evaluation. The parties hereby acknowledge that Company shall decide, at its sole discretion, to make an offer to purchase Customer’s Material and such offer price will be determined by Company at its sole discretion. Company considers a variety of factors in determining the price to pay for Customer’s Material, said factors include but are not limited to: the character and historic value of Customer’s Material, Company’s laboratory analysis and the uncertainties thereof, the estimated yield on final recovery and the risks and costs of processing said Material. Company’s offer shall be in the form of payment via check, wire, or precious metal return equivalent at the price offered by Company. If Customer wishes to further inquire upon Company’s offer, Customer shall have three (3) days from the date of receipt of the refining report to notify Company that Customer wishes to inquire upon Company’s offer. Should Customer not exercise its right of inquiry, as previously stated, within three (3) days of the receipt of the refining report, Customer shall be deemed to have accepted Company’s offer, and title of Material shall pass to Company. The acceptance or deemed acceptance of the settlement, together with the Standard Terms and Conditions shall be the final binding agreement between Company and Customer. Should Customer reject Company’s offer: A. Customer shall promptly return any and all payments made by Company to Customer plus any and all other fees owed to Company without the right of offset, or any other claim whatsoever. B. Company shall return processed Material to Customer (at Customer’s expense) after Company receives payment back from Customer. C. Customer shall release Company from and against all actions, losses proceedings, claims, damages, costs and expenses whatsoever relating to or arising out of the rejected order and transaction. In no event will Company be liable to Customer for any indirect, punitive or consequential damages or penalties arising out of the transaction or Company’s or Customer’s rejection of an order or transaction pursuant to this agreement.
6. Deleterious Elements: Various elements found within precious metal products and by products may contain elements that are deleterious to the environment and health and safety of Company’s employees. Should these elements, including but not limited to Lead, Mercury, Beryllium, Arsenic, Cadmium, be present in Customer’s Material, Company shall have the right to collect additional processing fees and/or reject Material at Company’s sole discretion.
7. Forum/Jurisdiction: Subject to the Standard Terms and Conditions set forth in this agreement, the rights and obligations of Customer and Company shall be governed by the laws in effect in the Commonwealth of Pennsylvania. Any suit, action or proceeding arising out of, or relating to this Agreement shall be conducted exclusively in the Common Pleas Court of the Commonwealth of Pennsylvania or the United States District Court for the Eastern District of Pennsylvania. Company and Customer consent to the jurisdiction of those courts, waive any objections to the venue of any such suit action or proceeding in any of these courts and waive any claim that any of these courts is an inconvenient forum.
8. Force Majeure and Delay: Company shall not be liable for delays in performance caused by acts of God, fire, or other causalities, accident, strike, shortage of labor or Materials, production backlog, governmental action, power outages, natural disasters or other causes beyond Company’s reasonable control. The time for Company’s performance shall be extended by the period of any such delay. Should there be a delay in settlement time, Company shall provide reasonable notice to Customer.
9. Customer Warranties: Customer warrants to Company that they are the lawful owner of any and all Material delivered to Company. Customer further warrants that title conveyed to Company shall be good and merchantable, its transfer rightful and the goods shall be delivered free of any security interest, lien or encumbrance of any kind
10. Exclusions of Warranties: Company expressly disclaims any and all Representations and Warranties, whether express or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose regarding the precious metal recovery from or content of Materials sold to Customer and Customer specifically waives all such claims.
11. Compliance: Customer shall comply with all applicable federal, state and local laws, government regulation and orders, including without limitation to the manufacturing , sale and delivery of goods, occupational safety and health, protection of persons and property from death, injury or damage, tax, export control, the environment and the use, handling ,storage, labeling and disposal of toxic or potentially toxic, and hazardous and/or potentially hazardous Materials and money laundering, bribery, antiterrorism, trade embargos and economic sanctions. Customer shall indemnify, defend and hold harmless Company, its affiliates, and their respective officers, directors, employees and agents from and against any claims, losses, damages, liability and costs arising out of any claim, suit or action alleging conduct by Customer in breach of the covenants contained herein.
12. Extension of Credit: Company retains the right at its own discretion and without prior notice to deny, limit or revoke credit to Customer, who has applied for or been granted credit. Company may close any account granted whenever it deems necessary without prior notice to the customer. Should Company grant Customer a line of credit, Customer shall pay all charges for account regardless of accounts credit limit. Customer guarantees Payment of account in full accordance with the invoice terms and agrees to payment of service chargers of the lesser of 2% per month, or the highest allowable legal rate in the jurisdiction. Customer agrees that any balance owed will become due in full upon any default in payment of violation of terms of account use or voluntary or involuntary bankruptcy. Further, Customer agrees to pay any and all collection costs, including court costs and attorney’s fees. Customer hereby grants Company a first priority security interest in all goods purchased, extended on credit, and/or consigned from Company and on general intangibles, case and non-cash proceeds (including insurance proceeds) and products arising therefrom, additions and accession thereto, substitutions therefor and replacements thereof. Company is authorized to make such filings as it believes necessary or desirable to perfect the security interest granted hereby.
13. Security: Customer grants to Company a first priority security interest in all of the Material delivered by Customer to the possession, control and custody of Company to secure all liabilities and obligations of any kind whatsoever owed by the Customer to Company. Company’s rights are those of a secured party under the Uniform Commercial Code of Pennsylvania. Further, Company shall have the right to offset against Customer’s account, any claims, refunds, moneys owed, metals owed or any damages whatsoever due to Company.
14. Assignment: Customer shall not have any right to assign its right or obligations under this agreement without the prior written consent of Company.
15. Severability: If any provision of this agreement is prohibited by law or held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.
16. Indemnification: Customer shall indemnify, defend, and hold harmless Company, its affiliates and their respective officers, directors, employees and agents from and against any legal or administrative claim, liability, penalty, fine, assessment, lawsuit, litigation or any other loss, expense or damage resulting from any claim under this agreement or any transaction contemplated herein. Company shall in no event be liable for any incidental, punitive, indirect, special and/or consequential damages arising out of, or relating to the transaction contemplated herein. Customer shall be liable for, and shall pay to Company all reasonable costs and expenses that may be incurred by Company enforcing this Agreement, including all reasonable attorneys’ fees, together with the fees and costs incurred in the collection of any amounts arising out of this Contract.