Allgemeine Bedingungen für Gewichtskonten für Metalle und Edelmetalle
1. Entire Agreement
The terms and conditions (collectively “Terms”) set forth herein govern the relationship between Umicore Precious Metals NJ, LLC (“Umicore”) and each Customer maintaining a metal
account, pool account, or unallocated metal account (individually, an “Account”). All Account transactions are expressly made conditional on Customer’s consent to these Terms to the exclusion of all other terms.
Umicore objects to and will not be bound by any additional, different, or inconsistent terms provided by Customer. These Terms constitute the sole, entire, and exclusive agreement between Umicore and Customer
regarding the Account and supersede all prior discussions, proposals, negotiations, representations, and agreements. Umicore reserves the right to change these Terms upon advance notice in writing to Customer.
2. Nature of Account
A separate Account shall be maintained for each Metal, and all obligations and undertakings herein with respect to any Metal shall be computed and performed separately for each Metal.
“Metal” shall mean any precious metal, including but not limited to, gold, silver, platinum, palladium, rhodium, iridium, and ruthenium meeting the applicable specifications provided herein. Umicore may credit or
debit quantities of Metal to an Account from time to time to reflect any mutually agreed transaction including, without limitation: (i) Umicore’s acceptance (in its discretion following sample, assay, and such other
testing as Umicore deems appropriate) or release of Metal delivered by, to, or for, or on behalf of Customer; (ii) Customer’s purchase or sale of Metal from or to Umicore; (iii) a refining settlement with Customer; or
(iv) transfer from or to another Account. All verbal instructions provided by Customer shall be confirmed in writing by Customer, and Umicore shall not be liable for any miscommunications occurring prior to receipt
of written confirmation. Accounts are not depository or warehousing agreements, and Umicore does not undertake to maintain, identify, or allocate physical inventories for or to any Account. Customer
acknowledges that Metal is fungible, and Umicore may deal with Metal in any manner it sees fit, including the commingling, consignment, lease, or disposition thereof subject to the undertakings provided herein.
3. Release of Metal
Umicore will release a quantity of Metal not exceeding the then-current credit balance in Customer’s Account following receipt of timely written instructions from Customer’s authorized
representative. Any quantity so released will be made available Ex Works the Umicore Facility (defined as 101 Wade Ave, South Plainfield, NJ 07080, or such other location as may be established by mutual
agreement). Umicore will release such quantity as promptly as practicable following receipt of Customer’s instruction and, subject to Section 5, within no more than three (3) weeks within receipt of such instruction
or as otherwise agreed. Customer may request that a quantity of Metal not exceeding the then-current credit balance in Customer’s Account be transferred to the account of a third party or transferred for release to
Customer at a location other than the Umicore Facility, and any such transfer shall be subject to the fees and terms then applied by Umicore to such transfers unless otherwise mutually agreed. Umicore may
provide packaging, certification of assay, or other services in connection with release of Metal, all subject to the fees and terms then applied by Umicore to such services unless otherwise mutually agreed.
Metal released from an Account by Umicore on Customer’s instruction shall conform to the following specifications:
Metal Form* Purity**
Gold Bullion 99,99%
Silver Bullion 99,90%
Platinum Sponge/Grain 99,95%
Palladium Sponge/Grain 99,95%
Rhodium Sponge/Powder 99,90%
Iridium Sponge/Powder 99,90%
Ruthenium Sponge/Powder 99,90%
*Where more than one form is listed, Umicore may release Metal in any listed form at its option unless otherwise mutually agreed.
**The credit to an Account, stated in troy ounces or grams, reflects the net weight
(fine metal content) of Gold available for release and the gross weight for all other Metals.
5. Force Majeure
Any delays in or any failure of performance by Umicore shall not constitute default or give rise to any claims for damages if and to the extent caused by acts of God, acts of the Customer, acts,
rules or regulations of governmental authority (civil or military executive, legislative, judicial, or otherwise), strikes or other concerted acts of workmen, lockout, labor difficulties, fires, floods, storm, accident,
epidemics, war, riots, rebellion, sabotage, terrorism, insurrection, difficulties or delays in public transportation or in public or postal delivery services, car shortage, fuel shortage, inability to obtain from Umicore’s
usual sources of supply (including disruptions precluding receipt of delivery against supply and futures contracts), inability to obtain suitable or sufficient energy, labor, machinery, facilities, supplies or materials, as
and when required, or by any other circumstances beyond Umicore’s reasonable control, whether of a similar or dissimilar nature. Upon the occurrence of any of the following circumstances, Umicore may in its sole
discretion elect to allocate its available deliveries, services, materials, or other resources among any or all customers (including Customer, purchasers, and counterparties generally) as well as departments,
divisions, subsidiaries, and affiliates of Umicore, upon such basis as Umicore, in its sole discretion, may determine, without liability whatsoever, but shall have no obligation whatsoever to make any such allocation
and shall not incur any liability for any failure of performance that may result therefrom.
Umicore warrants that Metal released hereunder shall conform to the specifications provided In Section 4 above. Umicore’s liability for breach of warranty shall be limited to replacing such Metal
provided, however, that written notice of such defect or non-conformance is given to Umicore within thirty (30) days of release to Customer of such defective or non-conforming Metal and further provided that
Customer shall return the defective or non-conforming Metal to Umicore strictly in accordance with Umicore’s written instructions concerning handling, shipping, insurance, and mode of transportation at Umicore’s
expense. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability
The total liability of Umicore arising out of or relating to the transactions contemplated hereby, whether such liability is based on contract, warranty, negligence, strict liability, or otherwise,
shall not exceed the aggregate net quantities of Metal properly credited to Customer’s Account. UMICORE WILL IN NO EVENT BE LIABLE FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE DELIVERY, NON-DELIVERY, SALE, RESALE, USE OF THE METAL, OR PERFORMANCE UNDER THESE TERMS, WHETHER
BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE.
8. Delivery Charges
Except as otherwise mutually agreed, all Metal is released Ex Works the Umicore Facility and all freight, insurance, or other delivery-related charges incurred by Umicore for alternate delivery
arrangements at Customer’s request will be prepaid or paid by Customer promptly on receipt of Umicore’s invoice. Customer assumes all risk and liability for, and hereby agrees to indemnify Umicore from and
against all losses, liabilities, damages, and claims whatsoever (whether for personal injury, property damage, or otherwise), arising out of the transportation, unloading, storage, handling, or use of the Metal after title
passes to Customer.
9. Communications and Statements
Account statements will be issued monthly, but no statement need to be issued on zero balance or inactive accounts. Customer should review each statement carefully and
advise Umicore promptly of any error or discrepancy. Absent manifest error, books and records pertaining to any Account that are maintained in good faith by Umicore will be presumed accurate and statements
(including corrections) issued in good faith by Umicore will be binding upon Customer, notwithstanding errors contained therein, unless Customer provides written notice of the error or discrepancy within sixty (60)
days following the date of the applicable statement. Any notice or communication should be directed to the attention of Stephan Marczinkowski, Rick Holt, or Brian Donohue at: (1) Mailing Address: P.O. Box 768,
South Plainfield, NJ 07080, or (2) Fedex, UPS, etc: 3950 South Clinton Ave, South Plainfield, NJ 07080. Customer will use reasonable efforts to respond promptly and accurately to requests for balance
confirmation made by Umicore or its auditors. Any notice or communication to Customer will be effective upon receipt (actual or deemed) and will be deemed received on the fourth business day following transmittal
by first class mail, postage prepaid to the last address provided by Customer.
Customer represents that: (i) Customer is a producer, processor, or commercial user in each Metal or by-product thereof for which it maintains an Account and utilizes its Account in
connection with such uses or for investment or speculative purposes; (ii) Customer does not and will not assign, pledge, or encumber any Account or deal with any Account or any interest therein or statement
thereof in such manner that it constitutes a security or futures contract; (iii) all actions taken by it in connection with any Account are duly and validly authorized and in compliance with applicable laws or regulations;
and (iv) Customer will deal with its Accounts solely as a principal. Each individual acting for or on behalf of Customer represents that he or she is a representative of Customer, with full authority to act for Customer
in all actions taken by such person for or in the name of Customer.
Customer shall be liable and pay for any tax or other levy imposed anywhere with respect to the establishment, issuance, sale, transfer, or assignment of an Account or the purchase, sale, or delivery of
any Metal credited thereto. Customer shall indemnify Umicore against any payments made by Umicore on account of said tax or levy, whether correctly or incorrectly asserted.
If Customer (i) fails to timely pay or perform any other obligation to Umicore, (ii) becomes subject to any bankruptcy or insolvency proceeding, or (iii) admits its inability to pay its debts as they become
due, Umicore may: (A) In its sole discretion, terminate any and all contracts or other agreements including but not limited to, all Forward Contracts then in effect with Customer; (B) Value any and all Metal owed or
owing under any terminated contractual obligation to or from Customer (whether or not then due) at its fair market value in U.S. Dollars at the close of business New York, New York time on the day of such
termination or, if not a business day, then the next business day; (C) Aggregate the value of all obligations to Customer under all terminated contracts (including any payment obligations converted to U.S. Dollars,
where necessary, at the exchange rate in effect at the close of business New York, New York time on the day of termination or, if not a business day, then the next business day); (D) Set off the value of all such
obligations against the value of all such obligations owing from Customer to Umicore computed on the same basis. The net obligation following exercise of such right of set-off shall be promptly paid in U.S. Dollars.
13. Governing Law
These Terms shall be governed by and construed under the laws of the State of North Carolina without regard to its conflicts of laws principles. Umicore and Customer agree that the United
Nations Convention on Contracts for the International Sale of Goods shall not apply. Any lawsuit arising in connection with these Terms must be brought in the state or federal court sitting in Wake County, North
14. Account Closing
Umicore may, with or without cause, close any Account at any time by notice to the Customer specifying the effective date of the closing, which shall be no less than four (4) weeks following
the date of the notice. A quantity of Metals equal to the credit balance remaining in any Account on such closing may, at Umicore’s sole discretion be: (i) held for release Ex Works the Umicore Facility; (ii) delivered
to Customer’s last known address with all freight and insurance charges payable by Customer on delivery; or (iii) purchased by Umicore at its fair market value at the close of business on the business day
immediately preceding the effective date of the closing with a check for the net purchase price remitted to Customer within ten (10) days following such purchase.
15. Segregated Accounts
Umicore may from time to time maintain segregated accounts for Customers dealing with large volumes of Metal. Such accounts are available only by specific written agreement and
require the payment of storage, insurance, and handling fees that are not applicable to Accounts.
16. Compliance with Laws
Customer shall be responsible for compliance with and obtaining such approvals, permits, and licensing as may be required under national, state/provincial, and local laws, ordinances,
regulations, and rules as may be applicable to performance under these Terms, and shall indemnify and hold harmless Umicore for Customer’s failure to comply.
Neither Customer nor Umicore may assign any of the rights or obligations under these Terms without first obtaining the written consent of the other; provided, that Umicore has the right to assign any
of its rights or obligations to any divisions, subsidiaries, or affiliates. If any provision of these Terms is held to be invalid or unenforceable, then that provision shall be valid and enforceable to the maximum extent
permissible, and the remaining provisions of these Terms shall be given full force and effect. Either Party’s failure to insist on strict compliance with any provisions herein in any instance shall not be deemed a
waiver of that party’s right to insist on strict compliance in any other instance. If an action by either part requires the consent or approval of the other, such consent or approval on any one occasion shall not be
deemed consent or approval on a subsequent occasion or to any other action.
Metal Account Terms and Conditions
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1. Entire Agreement
This Order (“Order”), including these Terms and
Conditions (collectively “Terms”) of purchase and any specifications or
attachments hereto constitute the entire agreement between the parties
relating to the purchase of the goods ordered (the “Goods”). Any
quotation provided by the Seller is incorporated and made a part of this
Order only to the extent specifying the nature and description of the
Goods and then only to the extent that such Goods are consistent with
the Terms of this Order. No additional or other Terms shall be binding on
Buyer unless expressly accepted in writing. Neither Buyer’s lack of
rejection to any terms proposed by Seller, nor the acceptance of the
Goods, shall constitute or be deemed an agreement by Buyer to any
such terms. Shipment or delivery of the Goods or other acceptance of
this Order by Seller shall be deemed to be acceptance of the Terms of
this Order in their entirety.
Prices are as last quoted at the time of sale unless a different
price is agreed to by the Buyer in writing.
3. Packing Charges
No charge allowed for cartons, packing or
delivery unless designated on this Order.
Nonconformance – Buyer shall have the right to inspect
where the Goods may be situated and a further right of the inspection
after delivery to Buyer’s plant, or other agreed upon location.
Notwithstanding any statutory provisions, the making or failure to make
any inspection of, payment for, or acceptance of the Goods shall not
affect Buyer’s right to return any Goods which are defective or of inferior
quality or workmanship or which fail to satisfy the specifications set out in
this Order or otherwise provided to Seller, or otherwise affect any rights
of the Buyer. Buyer may, at its option, reject any portion of the Order
without invalidating the remainder of the Order. Rejected Goods will be
returned at Seller’s risk and expense.
Goods are to be delivered to Buyer at the date and place
set forth in the Order. (Buyer reserves the right to cancel this Order
where Seller fails to deliver the Goods within the time stated). Shipments
in excess of the quantity specified may be returned by Buyer at Seller’s
risk and expense, or Buyer may place such excess in storage, with no
other duty than that of storage, at Seller’s expense.
Buyer reserves the right to cancel this Order in its
entirety or in part because of defects in the Goods, workmanship or
quality or if the Goods are not shipped as specified herein (time being of
the essence of this Order), or if Goods are not in accordance with
drawings and prints, approved samples or specifications, or instructions
issued in connection herewith, or if performance on Buyer’s part is
prevented by causes beyond its reasonable control such as fires,
accidents, strikes, court orders, or act or demands of any person or
agency exercising governmental authority, or if Seller fails to comply with
any Terms and Conditions of this Order.
7. Warranty Terms
Seller warrants to Buyer and to the customers and
users of its products that the Goods shall conform to all specifications,
drawings, samples and any other description furnished or adopted by
Buyer; shall be free from latent or patent defects in design, material,
workmanship and title; shall be fit and suitable for the purposes and
under the conditions made known by Buyer or reasonably to be inferred,
shall be of merchantable quality and at least equal to nationally
recognized standards or codes, or of the best quality, if no quality is
specified, and shall be free and clear of all liens, encumbrances and any
other rights of others. Such warranties are in addition to all warranty or
service guarantees offered by Seller and to all warranties implied or
provided by statute or common law.
8. Precious Metal Trading and Precious Metal Transfer Accounting
Orders placed by Buyer over the telephone become binding upon
9. Weight Accounts for Metals and Precious Metals
Seller shall maintain a separate Weight account for each Buyer and for each metal
or precious metal. Title is transferred once it is entered on the respective
10. Seller’s Liability
Seller agrees to assume all risk involved in the
sale and delivery of the Goods described in this purchase Order,
including all damage to the said Goods however caused and damage to
or destruction of any property resulting from or in any manner arising out
of Goods provided hereunder and the Seller agrees to protect, defend,
indemnity and hold harmless the Buyer from and against any losses
damages or causes of action connected with or arising out of the Goods,
provided hereunder and arising out of damage of or destruction of the
Goods herein described. The Seller’s obligation hereunder shall continue
until the Goods are delivered to the Buyer’s loading dock or at such other
point as may be designated by the Buyer and after inspection thereof by
the Buyer at such point.
11. Governing Law
This document and the purchase of any Goods
hereunder shall be governed by and construed in accordance with the
laws of the State of North Carolina without regard for its conflicts of laws
principles. Buyer and Seller agree that the United Nations Convention
on the Contracts for the International Sale of Goods shall not apply to
this Order. Any lawsuit arising in connection with this Order must be
brought in a state or federal court sitting in Wake County, North Carolina.
(a) Seller warrants that neither the Goods, nor their use,
infringe any patent, trade mark, copyright or other intellectual property
rights. Seller agrees to indemnify and hold harmless Buyer against all
claims that the manufacture, sale, resale and/or use of the Goods
infringe any such intellectual property rights including all losses liabilities,
costs and expenses (including legal costs and expenses) arising in
(b) Seller agrees to indemnify and hold harmless
Buyer for breach of any warranty made hereunder and from and against
all product liability claims relating to the Goods or the provision thereof
including all liabilities, losses, costs and expenses (including legal costs
end expenses) arising in connection therewith.
(c) Seller shall, at Buyer’s
request, defend, at Seller’s sole cost and expenses, any suit or
proceeding brought in respect of any subject matter covered by an
indemnity contained herein. Buyer shall, however, have the right to be
represented in such matters by counsel of Buyer’s own choice.
Seller warrants that in performance of this Order it
and its subcontractors shall comply with all applicable local, state, and
federal laws and regulations, and that any equipment covered hereby
shall, after installation, conform to, all applicable local, state, and federal
laws and regulations.
If Seller or its subcontractors, agents or employees are
required to be present on Buyer’s premises, or perform work with any of
Buyer’s employees, Seller shall secure and maintain in full force and
effect public liability, workmen’s compensation, property damage and
other necessary insurance in amounts satisfactory to Buyer. Upon
request certificates of insurance shall be furnished.
No waiver of any breach of any of the provisions hereof
shall be effective or binding on Buyer unless made in writing and signed
by Buyer and, unless otherwise provided, shall be limited to the specific
All rights and remedies of Buyer hereunder are
cumulative and not exclusive and are in addition to all other rights and
remedies available to Buyer at law or in equity.
Terms and Conditions for Purchase of Goods
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1. Entire Agreement
The terms and conditions (collectively “Terms”) set forth herein govern the sale of the products of this Sales Contract (the “Products”) and this Sales Contract (“Contract”) is expressly made conditional on Buyer’s assent to these Terms to the exclusion of all other terms. This Contract, which includes these Terms, constitutes the sole, entire and exclusive agreement between Buyer and Seller for the sale of the Products and supersedes all prior discussions, proposals, negotiations, representations and agreements. Seller objects to and will not be bound by any additional, different or inconsistent terms in Buyer’s purchase order or other documents from Buyer, and shipment or delivery pursuant to a purchase order of Buyer that contains additional, different or inconsistent terms does not constitute acceptance of such terms. No terms, conditions, understandings or agreements purporting to waive, modify, or vary these Terms will be binding unless made in accordance with section 14 below.
Prices are as last quoted at the time of sale unless a different price is agreed to by the Seller in writing. Any sales or other tax or duty which Seller may be required to collect or pay upon the sale of Products will be added to the price of the Products and will be paid by Buyer.
Seller shall submit invoices to Buyer stating amounts due on the date of sale unless otherwise mutually agreed upon. The specific terms of payment are as specified on the face page of the Contract. Any claim concerning invoice amounts shall be made within two (2) business days from the date of receipt of invoice by Buyer, or shall be deemed void. If at any time Seller becomes insecure about Buyer’s ability to perform under this Contract, Seller may in writing demand from Buyer adequate assurance of Buyer’s ability to perform, and Seller may, at Seller’s option, suspend delivery of Products until Seller has received such assurance from Buyer in writing, or may require cash or other security before delivery of Products to Buyer. In addition to any other legal remedy, if Buyers fails to fulfill the terms of payment or is in default with respect to any other Term, Seller may, at its option, cancel all further deliveries of Products to Buyer. Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in the collection of any sum due Seller from Buyer.
4. Delivery, Shipment, and Packing
Unless otherwise agreed in writing, all Products shall be sold and delivered Ex Works (Incoterms 2010) Seller's location. Title and risk of loss shall pass to Buyer simultaneously with delivery, except in the case of pool accounts where title shall pass after Seller’s receipt in full of funds in addition to any other outstanding balance due Seller. Seller shall pack and mark the Products according to its standard procedures for domestic and/or export delivery. Buyer assumes all risk and liability for, and hereby agrees to indemnify Seller from and against, all losses, liabilities, damages and claims whatsoever (whether for personal injury, property damage or otherwise), arising out of the transportation, unloading, storage, handling or use of any Products after title passes to Buyer.
5. Warranty Terms
All Products are warranted at the time of delivery to conform to drawings and specifications mutually agreed upon in writing. Seller’s sole obligation, and Buyer’s exclusive remedy under this Contract is for Seller, at Seller’s option, to repair or replace defective Products or refund Buyer’s purchase price for any Product which fails to meet this warranty. This warranty does not apply to Products (i) which have been subjected to misuse, negligence, accident, or improper maintenance, installation, or application; (ii) which have been repaired or altered without Seller's prior written consent; or (iii) which, based on Seller’s examination, do not disclose to Seller's satisfaction nonconformance to this warranty. Before returning any Product covered by this warranty, Buyer must obtain a return authorization from Seller, which will be valid for thirty (30) days from the date of Seller’s issuance, provided that Seller receives the returned Product within the 30-day period. Buyer must prepay all freight, however, Seller will issue Buyer a credit for freight where Seller determines that nonconforming Product has been delivered.
SELLER DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES IN CONNECTION WITH THE SALE OR USE OF THE PRODUCTS, WHETHER ARISING BY OPERATION OF LAW, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY
The total liability of Seller with respect to the Products or otherwise arising in connection with this Contract, whether such liability is based on contract, warranty, negligence, strict liability, or otherwise, shall not exceed the purchase price of the Products in respect of which any claim is made. SELLER WILL IN NO EVENT BE LIABLE FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE DELIVERY, NON-DELIVERY, SALE, RESALE, OR USE OF THE PRODUCTS, WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
7. Precious Metal Trading and Precious Metal Transfer Accounting
Orders placed by Buyer over the telephone only become binding upon Seller’s consent. The damage caused as a result of transmission faults, misunderstandings or errors in telephonic communications with Buyer or with third parties shall be borne by Buyer, unless there is any fault on Seller part. Seller may cancel credit notes given
as a result of an error, a spelling mistake or for any other reasons without any order in this connection by making a simple entry.
8. Retention of Title
The goods sold shall remain Seller property until payment in full of all current and future claims arising under or in connection with the entire business relationship with Buyer, irrespective of the legal ground. Hence, this includes in particular claims to performance of the contract, to damages based on default, non-performance or the breach of other contractual or pre-contractual duties and claims based on the law of torts and the right to satisfaction.
If processing or transformation of the reserved goods by Buyer is carried out by Buyer on Seller’s behalf as a contract manufacturer; Buyer releases Seller from the manufacturer's liability. If Seller’s goods have been combined, mixed or processed to produce new goods, Seller’s title shall extend to the new product. Buyer hereby assigns to Seller rights to the new product. If a third party’s right of ownership continues to exist when Seller goods are processed, combined or mixed with the third party's goods, Seller shall acquire co-ownership of the processed goods in relation to the new product. The value of the processed goods at the time of such processing, combination or mixing shall be relevant. If Buyer combines or mixes Seller reserved goods with the main goods of a third party for compensation, Buyer hereby assigns to Seller his right to compensation from such third party. The above ratio applies accordingly to the amount of the assigned claim.
Buyer may, in the ordinary course of his business, resell any goods which are subject to Seller’s retention of title. Buyer hereby assigns to Seller all his claims arising from such resale up to the amount of the value of the reserved goods at the time of the resale. Buyer is authorized to collect payments for claims from such resale for as long as he meets his obligations towards Seller in due form. If so requested by Seller, Buyer shall advise his customers of such assignment of rights and provide Seller with the information and documents necessary to enforce Seller rights vis-à-vis these parties.
Buyer is obligated to insure the reserved goods to a reasonable extent against fire, water damage, burglary and theft at Buyer’s expense. Buyer hereby assigns to Seller any possible claims against the insurance up to the amount of the value of the reserved goods at the time of the occurrence of the insured event.
Buyer is not authorized to dispose of the reserved goods in any manner other than as stated above. In particular, Buyer may not lend on the reserved goods or assign them as collateral, pledge or sell them. Access by third parties to goods and receivables belonging to Seller shall be notified without undue delay in writing. If so requested by Seller, Buyer shall provide all the information required on the stocks of the goods belonging to Seller and on the receivables assigned to Seller. Buyer shall also mark the goods belonging to Seller as Seller property on Seller request and notify his buyers of the assignment.
In the event of payment default on the part of Buyer, Seller is entitled to revoke Buyer's authorization to resell the reserved goods and to collect the receivables assigned to Seller, to disclose the assignment of the receivables and/or to demand the provisional surrender of the goods belonging to Seller at the expense of Buyer even without rescission of the purchase contract and without granting any grace period. In the event that the value of the collateral exceeds Seller claims against Buyer by more than 10 percent, Seller shall be obligated to release the collateral in excess of said limitation.
Rights in the event of a deterioration in financial circumstances: If it becomes evident after conclusion of the contract that Seller’s claim to counterperformance is jeopardized as a result of Buyer having insufficient funds to pay, Seller have the following rights in addition to the rights under applicable law: Seller can immediately assert claims for which a bill of exchange was presented; Seller is authorized to prohibit Buyer from reselling the goods and - subject to further rights under the reservation of title – to retrieve back goods not yet paid at Buyer's expense. All metals and precious metals on the Weight account of Buyer serve to collateralize all of Seller claims against the Buyer. Seller is only obliged to surrender metals or precious metals to the extent that their countervalue exceeds the total amount of all of Seller claims. If Buyer is in default, Seller is entitled to purchase metals and precious metals entered on the Weight account of Buyer at a quantity equivalent to all of Seller payment claims and to set off Seller payment claims from the payment claim of Buyer based on such purchase by written declaration. The date of purchase is relevant for the exchange rate. Metal and precious metal liabilities of Buyer may be settled by Seller through a sale at the current daily price. The outstanding money claim created can be set off against any credit balance of Buyer.
9. Weight Accounts for Metals and Precious Metals
Seller maintains separate Weight accounts for each Buyer and for each metal or precious metal. Holdings of the individual account holders are not stored separately. The individual account holders form a community of owners. Each account holder is a joint owner of the total inventory at the amount of the quantity of Weight of a metal or precious metal entered on his account. In the event of the sale or purchase of metals or precious metals, the ownership is transferred once it is entered on the respective account.
The Weight account can be terminated by Seller for good cause without observing a notice period. Good cause has occurred if facts have arisen as a result of which UMICORE PRECIOUS METALS NJ, L.L.C. -- FORM T&C-S -- JUNE 2012
Terms and Conditions of Sale
the terminating party cannot be reasonably expected to continue the Weight accounts when taking account of all the facts and circumstances of the individual case and weighing up the interests of the parties to the contract. Good causes are for example the breach of essential contractual duties or imminent insolvency.
In the event of the termination of a Weight account by Seller, the title of the precious metals on the account passes completely to Seller. For the transfer of ownership, Seller shall pay Buyer compensation amounting to not more than the current exchange rate at the time of termination, as determined by Seller in his sole discretion, after deducting value of debit balances on the account. The value of debit balances are also determined by Seller in his sole discretion. .
10. Government Approvals
Seller and Buyer, respectively, shall be responsible for compliance with and for obtaining such approvals and/or permits as may be required under national, state/provincial, and local laws, ordinances, regulations, and rules as may be applicable to the performance of their respective responsibilities and obligations under this Contract.
11. Force Majeure
Any delay or failure of Seller to perform its obligations under this Contract shall be excused to the extent such delay or failure is caused by an event or occurrence beyond Seller’s reasonable control, such as, by way of example and not limitation, acts of God, acts of any governmental authority (whether valid or invalid), fires, floods, severe weather, explosions, riots, natural disasters, wars, sabotage, terrorism, labor problems (including lockouts, strikes, and slowdowns) at Seller's facility or its source plants’ or suppliers’ facilities, or inability to obtain or delay in obtaining power, material, equipment, or transportation.
Neither Buyer nor Seller may assign any of its rights or obligations under this Contract without first obtaining the written consent of the other; provided, however, that Seller has the right to assign any of its rights or obligations under this Contract to any divisions, subsidiaries or affiliates.
13. Governing Law
This Contract shall be governed by and construed under the laws of the State of North Carolina without regard to its conflicts of laws principles. Buyer and Seller agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. Any lawsuit arising in connection with this Contract must be brought in the state or federal court sitting in Wake County, North Carolina.
No amendment or modification to this Contract shall be binding upon either party unless it is in writing and is signed by both parties.
lf any provision of this Contract is held to be invalid or unenforceable, that provision shall be valid and enforceable to the maximum extent permissible and the remaining provisions of this Contract shall be given full force and effect.
Either party’s failure to insist on strict compliance with any provision of this Contract in any instance shall not be deemed a waiver of that party’s right to insist on strict compliance in any other instance. If an action by either party requires the consent or approval of the other, such consent or approval on any one occasion shall not be deemed consent or approval on a subsequent occasion or to any other action.
This Contract may not be cancelled by Buyer in whole or in part without Seller’s written consent and payment to Seller of a sum sufficient to cover any and all costs associated with the cancellation of this order as determined by Seller in his sole discretion.
Within one hundred twenty (120) days from a notice of cancellation by Buyer, Seller shall submit documentation of the prices and costs described above sufficient to permit Buyer's audit. Buyer shall have thirty (30) days in which to audit Seller’s documentation and to request in writing any additional information from Seller reasonably necessary to support Seller’s costs. Within ten (10) days after receiving the additional information, if any, requested of Seller, Buyer shall pay Seller in accordance with this section 17.
Terms and Conditions of Sale
- Upmnj-gtc-sale.pdf 92.14 kb