1. Definitions. Capitalized terms used but not defined herein have the following meanings:
a. “Agreement” means any agreement between the parties pursuant to which Checon: (i) sells Goods to Customers; (ii) provides Refining Services to Customers; or (iii) maintains a Metal Account on behalf of Customer.
b. “Customer” means the party: (i) purchasing Goods from Checon;(ii) receiving Refining Services from Checon; or (iii) having a Metal Account maintained by Checon.
c. "Goods” means any goods, including, without limitation, electrical contact materials, brazing alloys, and Metal, sold by Checon to Customer pursuant to or in connection with the Agreement.
d. “Metal” means precious metal, including, without limitation, silver.
e. “Metal Account” means any unallocated Metal pool or weight account maintained by Checon or one of its affiliates for the benefit of Customer.
f. “Refining Materials” means any materials provided by Customer to Checon for the Refining Services, including, without limitation, Metal.
g. “Refining Services” means any refining services provided by Checon for or at the direction of Customer pursuant to or in connection with the Agreement.
h. “Checon” means Checon, LLC
2. Entire Agreement. These General Terms andConditions of Sale and Refining (“Terms”):(i) apply to and are incorporated into any Agreement to which they are attached or referenced; (ii) together with the Agreement, constitute the entire agreement between the parties for the sale of Goods, provision of Refining Services, or maintenance of a Metal Account by Checon; and (iii) supersede all prior discussions, proposals, negotiations, representations, and agreements regarding the same. The sale of any Goods, provision of any Refining Services, and maintenance of any Metal Account by Checon is subject to and expressly conditioned on Customer’s acceptance of these Terms. If there is a discrepancy between the Agreement and these Terms, then theAgreement prevails. Checon hereby objects to, is not bound by, and rejects any terms or conditions submitted or referenced by Customer that are inconsistent with, different than, or additional to these Terms.Any amendment or modification of these Terms or the Agreement requires Checon's written consent.
3. Orders and Changes. All proposals, bids, offers, and quotations provided by Checon are non-binding and subject to change. All purchase orders, awards, and confirmations provided by Customer, even if submitted pursuant to a proposal, bid, offer, or quotation, will only be deemed accepted upon express written confirmation by Checon. Once accepted by Checon, orders are non-cancellable. Checon shall have no liability to Customer for any costs, lost profits, or other damages resulting from any design or specification change or product discontinuance. If Customer desires an order change, then Customer shall submit a written request to Checon for consideration. Within a reasonable period of time thereafter, Checon shall notify Customer of its acceptance or rejection of Customer’s request. If accepted, then Checon shall provide Customer with its charges for the order change and a proposed implementation date.
4. Goods.
a. Delivery and Acceptance. Unless otherwise set forth in the Agreement, all Goods will be delivered Ex Works Checon’s facility (Incoterms® 2020). Checon may cause Goods to be shipped from the facilities of Checon’s affiliates. Risk of loss will pass to Customer upon shipment. Each delivery constitutes a separate sale, and Customer shall pay for Goods shipped, whether such shipment is in whole or partial fulfillment of an order. All delivery times set forth in the Agreement are non-binding estimates, and Customer may not reject Goods or be entitled to a reduction in price because Goods are delivered outside of such times. Within five (5) days after receipt, Customer shall inspect all Goods and provide Checon with written Notice (defined below) of acceptance or rejection. If Customer fails to provide Checon with such Notice in such time, then the Goods will be deemed accepted by Customer “AS IS.”
b. Title. Title to Goods will transfer from Checon to Customer upon shipment. Customer assumes all risk and liability for, and hereby agrees to indemnify, defend, and hold Checon, including its shareholders, directors, officers, employees, affiliates, successors, and permitted assigns, harmless from and against any and all losses, liabilities, damages, and claims arising out of or relating to the transportation, unloading, storage, handling, or use of the Goods after title passes to Customer.
5. Refining Services.
a. Refining Materials. Customer acknowledges and agrees that Refining Materials are required to provide the Refining Services, and, to the extent that Customer fails to provide such Refining Materials, Checon will be relieved of its obligations under the Agreement. Customer represents and warrants to Checon that: (i) Customer is the sole and exclusive owner of the Refining Materials; (ii) the Refining Materials are not subject to any liens, judgments, or other encumbrances; (iii) using the Refining Materials in connection with the Refining Services will not violate any third-party intellectual property rights; (iv) the Refining Materials do not contain any radioactive or biological materials;(v) the Refining Materials do not have any carcinogenic, corrosive, explosive, or flammable properties; (vi) unless otherwise agreed to in writing by Umicore, the Refining Materials do not constitute a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,”“toxic pollutant,” “regulated substance,” “contaminant,” or “pollutant,” under any applicable environmental law, rule, or regulation; and (vii) the Refining Materials do not contain or constitute “conflict minerals” under applicable conflict minerals laws, rules, or regulations, including, without limitation, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
b. Shipment of Refining Materials. Unless otherwise set forth in the Agreement,Customer shall not ship any Refining Materials to Checon without Checons prior written consent. Customer shall: (i) package, mark, and label all Refining Materials in accordance with Checon’s reasonable instructions and all applicable laws, rules, and regulations; and (ii) provide Checon with the applicable packaging and shipping documents for all shipments of Refining Materials. Customer shall be responsible for all costs and expenses associated with packaging and shipping the Refining Materials, and Checon shall not be required to return any packaging.
c. Delivery and Acceptance of Refining Materials. Unless otherwise set forth in the Agreement, Refining Materials will be delivered DDP Checon’s facility (Incoterms® 2020). Customer shall be responsible for all costs and expenses associated with delivery of the Refining Materials. Checon may, in its sole discretion, inspect Refining Materials, and any Evaluations (defined below) of Refining Materials will be conducted in accordance with Section 9 (Final Evaluation). Checon may refuse to provide Refining Services for the lot of Refining Materials upon conducting Evaluations of the full lot, regardless of any previously inspected samples. Checon may reject any Refining Materials that:(i) are not packaged, marked, or labeled in accordance with Checon’s reasonable instructions and all applicable laws, rules, and regulations; (ii) arrive in damaged, leaking, or opened packaging;(iii) are deemed to be dangerous or hazardous by Checon, in its sole discretion; or (iv) are damaged or otherwise fail to conform to the Agreement or these Terms. Checon shall provide Customer with prompt written Notice of any such rejection, and Customer shall promptly reimburse Checon for any costs and expenses incurred by Checon in connection with storing, repackaging, and returning any rejected Refining Materials.
d. Provision of Refining Services. Unless otherwise agreed to in writing, Checon reserves the right to provide Refining Services to all Refining Materials after completing Evaluations. Checon shall use reasonable efforts to meet any schedules set forth in the Agreement, and any such schedules are non-binding estimates only. Customer shall promptly: (i) respond to any requests for information, approvals, authorizations, or decisions reasonably necessary to provide theRefining Services; and (ii) notify Checon of any dangerous, operational, or special conditions that may affect the provision of the Refining Services. All intellectual property rights, including, without limitation, patents, trademarks, trade secrets, know-how, and other sensitive, proprietary, or confidential information, associated with or relating to the Refining Services will remain the sole and exclusive property of Checon.
6. Metal Accounts.
a. Metal Trading and Transfer Accounting. Checon may maintain a separate Metal Account for each Metal, and all obligations and undertakings with respect to Metal will be computed and performed separately for each Metal. Checon may, from time to time, credit or debit quantities of Metal to a Metal Account to reflect any transaction agreed upon by the parties, including, without limitation, the: (i) acceptance or release of Metal delivered from, to, or on behalf of Customer; (ii) purchase or sale ofMetal from or to Checon;(iii) settlement of Refining Services with Customer; or (iv) transfer of Metal from or to anotherMetal Account. Checon may, in its sole discretion, reject any Metal delivered by or for Customer. Metal Accounts are not depository or warehousing agreements, and Checon does not undertake to maintain, identify, or allocate physical inventories for or to any Metal Account. Customer acknowledges and agrees that Metal is fungible, and Checon may deal with Metal in any manner Checon sees fit, including the commingling, consignment, lease, or disposition thereof subject to the undertakings provided herein. Checon may reverse any mistaken credits in a Metal Account by debit entry without incurring liability to Customer. Customer’s Metal Account may reflect a negative balance only with Checon's prior written consent,and for any such Metal Account , Checon will in its sole discretion, be entitled to declare the negative balance due, set a reasonable period for repayment, and/or close the Metal Account at Customer’s sole cost and expense.
b. Release of Metal. Customer may request that a quantity of Metal, not exceeding the then-current credit balance, be released from Customer’s Metal Account. The release will occur as promptly as practical following Checon’s receipt of such instructions. Released Metal will be delivered in the same manner as Goods in accordance with and subject to Section 4 (Goods). Customer may also request that a quantity of Metal, not exceeding the then-current credit balance, be transferred to the Metal Account of a third party or transferred for release to Customer at a location other than Checon’s facility. Any such transfer will be subject to the payment of additional fees and requirements established by Checon. Checon may provide packaging, certification of assay, or other services in connection with the release of Metal, subject to payment by Customer of Checon’s fees for such services. Except as provided in this Section, the price of released Metal will be in accordance with and subject to Section 7 (Price and Taxes). Customer shall pay for released Metal within five (5) business days after the date of its release.
c. Account Instructions. Customer’s instructions regarding the Metal Account become binding only upon Checon: (i) express consent in writing; or (ii) execution of the requested transaction. By placing a verbal order, Customer accepts these Terms and agrees that all calls may be monitored and recorded. Checon shall not be liable for any damages caused by misunderstandings or miscommunications resulting from verbal communications with Customer. In the event of non-execution or inadequate execution of Customer’s instructions, Checon shall be liable only in the event of proven intentional misconduct.
d. Statements. Unless otherwise agreed to in writing, Checon shall issue weekly statements for Metal Accounts, but no statement will be issued for zero-balance or inactive Metal Accounts. Customer shall review each statement and advise Checon promptly of any error. Absent manifest error, records pertaining to any Metal Account that are maintained in good faith by Checon will be presumed accurate, and statements (including corrections) issued in good faith by Checon will be binding upon Customer, notwithstanding any errors contained therein, unless Customer provides written Notice of the error to Checon within thirty (30) days after the date of the applicable statement. Customer will use reasonable efforts to respond promptly and accurately to balance confirmation requests made by Checon or its auditors.
e. No Encumbrances. Until Customer pays all amounts due to Checon, Customer shall maintain the Metal free and clear of and from all liens, judgments, and encumbrances. Customer shall not assign, pledge, or encumber any Metal Account or interest therein or statement thereof. Customer shall indemnify, defend, and hold Checon, including its shareholders, directors, officers, employees, affiliates, successors, and permitted assigns, harmless from and against any breach of this Section by Customer or any of its shareholders, directors, members, managers, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers, or vendors.
f. Account Closing. In the absence of an Event of Default (defined below), Checon may close a Customer’s Metal Account at any time by providing Customer with at least thirty (30) days’ prior written Notice.If Checon closes a Metal Account because of any Event of Default, then title to any Metals in such Metal Account will transfer to Checon upon closure and compensation for the Metals will be paid by Checon toCustomer after setoff and deducting the value of any debit balances on such Metal Account. If the closed Metal Account shows a negative balance, then Checon will invoice Customer for the value of such negative balance pertaining to a Metal Account.
7. Price and Taxes. Unless otherwise set forth in the Agreement, the price of Goods and Refining Services excludes all taxes, duties, fees, and other charges, which are the responsibility of Customer. If Checon must collect or pay any such tax, duty, fee, or charge, then Checon may add such amounts to the price and they will be paid by Customer. Prices are subject to change. Customer is responsible for and shall pay any tax, fee, or other charge related to the: (i) establishment, maintenance, closing, or liquidation of any Metal Account; and (ii) purchase, sale, or delivery of any Metal credited thereto.
8. Payment Terms. Unless otherwise set forth in the Agreement, Customer shall pay Checon for Goods and Refining Services within thirty (30) days after the date of the applicable invoice.If Customer’s creditworthiness changes, then Checon may demand advance payment for the Goods and Refining Services or other means of financial security, including, without limitation, a letter of credit. Customer shall make all payments unconditionally and without any setoff, recoupment, or counterclaim. All past-due amounts will accrue interest at a rate of one percent (1%) per month.Customer shall be responsible for all costs and expenses incurred by Checon, including attorneys’ fees, in connection with collecting such amounts.
9. Final Evaluation. Checon may, in its sole discretion and in a manner it deems appropriate, conduct processing, sampling, analysis, weighing, assays, and other evaluations (collectively, “Evaluations”) in connection with the sale of Goods, provision of Refining Services, or maintenance of a Metal Account. Checon shall conduct all Evaluations in good faith, in accordance with generally recognized industry standards, and using properly calibrated equipment. All Evaluations conducted by Checon will be taken as the final, agreed-upon Evaluation. Customer may, at its sole cost and expense and by providing prior written Notice to Checon, attend and witness any Evaluation conducted by Checon. Customer shall be responsible for all costs and expenses associated with any additional Evaluations that Customer may conduct in its discretion.
10. Termination.
a. Event of Default. Unless otherwise set forth therein,Customer may not terminate the Agreement. If Customer terminates the Agreement, then Customer shall reimburse Checon for all costs and expenses incurred by Checon as a result of performing the Agreement prior to the date of termination. In addition to any remedies provided under these Terms, Checon may terminate the Agreement with immediate effect upon written Notice to Customer if Customer: (i) fails to pay any amount as or when due under the Agreement;(ii) has not otherwise complied with these Terms;(iii) becomes insolvent, files a petition for bankruptcy, or commences, or has commenced against it, proceedings related to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (iv) violates, or is reasonably believed to have violated, applicable law, including anti-bribery, anti- corruption, or anti-money laundering laws (each, an “Event of Default”).
b. Effect. Upon an Event of Default, Checon may, in its sole discretion and without limiting its other remedies: (i) cancel future orders and deliveries of Goods to Customer;(ii) cancel or cease performance of Refining Services; (iii) close Customer’s Metal Account(s); (iv) terminate all agreements with Customer, including, without limitation, forward contracts; and (v) set off any amounts, whether or not matured or liquidated, owed by Customer to Checon under any closed Metal Account or terminated agreement. Any setoff must be: (a) calculated at the close of business,Eastern Standard Time, or, if the day of closure or termination is not a business day, then the next business day; (b) based on the applicable fair market value of the Metal;(c) converted, if necessary, to USD using the exchange rate published by the Wall Street Journal on the day of closure or termination; and (d) aggregated and promptly paid in USD.
11. Compliance. Customer shall: (i) comply with all applicable laws, rules, and regulations, including, without limitation, those regarding anti-corruption, anti-bribery, human rights, and environmental health and safety; (ii) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals, and permits necessary to carry out Customer’s responsibilities and obligations under the Agreement and these Terms; and (iii) handle, store, use, and transfer the Goods in compliance with the foregoing and any safety information provided by Checon. Customer shall complete any documents and provide such information as Checon may reasonably request to ascertain Customer’s compliance with the foregoing. The Goods, including any documentation and technical data related thereto, may be subject to certain:(a) U.S. or other applicable export laws, rules, and regulations (“Export Laws”); and(b) anti-money laundering laws, rules, and regulations, including, without limitation, the U.S. Patriot Act (“AML Laws”). Customer shall comply with all applicable Export Laws and AML Laws. Customer shall not export, re-export, or release any Goods that are subject to Export Laws, directly or indirectly, to any jurisdiction to which, or person to whom, such export, re-export, or release is prohibited by any applicable Export Laws.It is Customer’s responsibility to obtain any license or other approvals, and Customer will complete any documents requested by Checon prior to exporting, re-exporting, or releasing any Goods that are subject to Export Laws. Customer shall indemnify, defend, and hold Checon, including its shareholders, directors, officers, employees, affiliates, successors, and permitted assigns, harmless from and against any breach of this Section by Customer or any of its shareholders, directors, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers, or vendors.
12. Customer Representations. Customer hereby represents and warrants to Checon that Customer is a sophisticated consumer and possesses all requisite skill and expertise necessary to handle, store, process, use, and transfer the Goods, which may contain toxic, hazardous, or otherwise dangerous substances. If applicable, Customer further represents and warrants to Checon that Customer: (i) is a producer, processor, or commercial user of each Metal or by-product thereof for which Customer maintains a Metal Account and Customer utilizes its Metal Account solely in connection with such uses; (ii) understands that Metal prices are volatile and Customer is well aware of the risks associated with the purchase and sale of Metal and the maintenance of a Metal Account;(iii) all actions taken by Customer in connection with any Metal Account are duly and validly authorized and in compliance with all applicable laws, rules, and regulations; and (iv) will deal with its Metal Accounts solely as a principal. Each individual acting for or on behalf of Customer represents and warrants to Checon that he or she has the full authority to act for Customer in all actions taken by such person for or in the name of Customer.
13. Warranties. Checon hereby warrants to Customer that:(i) the Goods will be free from defects in materials and workmanship and materially comply with the specifications set forth in the Agreement (or, if no specifications are set forth in the Agreement, then Checon’s printed specifications); (ii) the Refining Services will be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services; and (iii) Metal released from the Metal Account will materially comply with the specifications set forth in the Agreement(or, if no specifications are set forth in the Agreement, then Checon’s printed specifications)(collectively, the “Warranty”). Customer must bring any Warranty claim within fifteen (15) days after becoming aware of the alleged non-conformance, and the Warranty expires twelve(12) months after the delivery of the Goods or completion of the Refining Service. Customer’s sole and exclusive remedy for any breach of the Warranty is: (a) at Checon’s option, repair or replacement of the non- conforming Goods;(b) re-provision of the applicable Refining Services; or (c) replacement of the non-conforming Metal if Customer provides written Notice to Checon of the non-conformance within five (5) days after Customer discovers the non-conformance. Goods may not be returned without Checon’s prior written authorization, and any costs and expenses in connection with storing, repackaging, and returning any Goods will be the responsibility of Customer. Goods must be returned to Checon in strict compliance with Checon’s written instructions. The Warranty DOES NOT COVER Goods that: (x) have been subject to misuse, negligence, accident, or improper maintenance or storage;(y) have been altered without Checon’s prior written consent; or (z)based on Checon’s examination, do not disclose to Checon’s satisfaction the non-conformance with the Warranty. CHECON HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,AND NON-INFRINGEMENT.
14. Disclaimer and Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, RULES, AND REGULATIONS, CHECON DISCLAIMS ALL, AND WILL NOTBE LIABLE TO CUSTOMER FOR ANY, SPECIAL, CONSEQUENTIAL,INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING,WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREE MENTOR THESE TERMS, EVEN IF UMICORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Checon’s maximum liability on any claim arising out of or resulting from the: (i) sale of Goods will not exceed the purchase price of the Goods for which any such claim is made, not to include the value of the Metal; (ii) Refining Services will not exceed the aggregate amounts paid to Checon with respect to the materials for which any claim is made; and (iii) Metal Account transactions will not exceed the value of the aggregate net quantity of Metal properly credited to such Metal Account.
15. Confidentiality. Customer shall treat the Agreement and any sensitive, proprietary, or confidential information provided by Checon as confidential, and shall not disclose it, or its contents, to any other party without the prior written consent of Checon..
16. Setoff. Checon may, without prejudice to its other rights and remedies, setoff any liability that Checon owes to Customer against any liability that Customer owes to Checon, regardless of whether such liability is matured or liquidated. The value of Metal will be determined as described in Section 10 (Termination).
17. Force Majeure. Checon will be excused from its obligations under the Agreement to the extent prevented by circumstances beyond its reasonable control, including, without limitation, fire, flood, natural disaster, change in applicable law, difficulty sourcing raw materials, ar, equipment breakdown, strike, lockout, labor dispute, and interruption in utilities or transportation.
18. Governing Law and Arbitration. The Agreement and these Terms are governed by the laws of the State of Delaware, without regard to its conflict-of-law principles. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Agreement or these Terms. If Customer exists under the laws of any non-U.S.jurisdiction, then any claim or controversy arising out of or relating to the Agree mentor these Terms will be determined by a panel of three (3) arbitrators in an arbitration administered by the International Centre for Dispute Resolution (ICDR) in accordance with its International Arbitration Rules in effect at the time the arbitration is initiated. The arbitrators will be empowered to award declaratory and interim relief. The prevailing party will be entitled to recover its reasonable attorneys’ fees, expenses, and costs as determined in the discretion of the arbitrators. Judgment on any award rendered pursuant to this Section may be entered by any court having jurisdiction thereof or over the relevant party or its assets.
19. No Waiver. No waiver by Checon of any of the provisions of the Agreement or these Terms is effective unless explicitly set forth in writing and signed by Checon. Any delay or failure to exercise any right, remedy, r privilege arising from the Agreement or these Terms will not constitute a waiver thereof. No single or partial exercise of any right, remedy, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, or privilege.
20. Severability and Assignment. If any provision of the Agreement or these Terms is deemed by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be severed from the Agreement or these Terms, as applicable, and have no further impact on the remaining provisions. Customer may not assign its rights or delegate its obligations under the Agreement or these Terms without the prior written consent of Checon. Any such assignment or delegation will be null and void. Checon has the right to assign any of its rights or obligations under the Agreement or these Terms.
21. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
22. Notices. All notices, consents, claims, demands, and waivers hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the face of the Agreement or to such other address that may be designated by the receiving party in writing. All Notices must be delivered by personal delivery, recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only: (i) upon receipt of the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
23. Survival. The following sections will survive the expiration or termination of the Agreement and remain in full force:6.e. (No Encumbrances); 6.f. (Account Closing); 10 (Termination); 13 (Warranties); 14 (Disclaimer and Limitation); 15 (Confidentiality); 16 (Setoff); and 18 (Governing Law and Arbitration). The arbitrators will be empowered to award declaratory and interim relief. The prevailing party will be entitled to recover its reasonable attorneys’ fees, expenses, and costs as determined in the discretion of the arbitrators. Judgment on any award rendered pursuant to this Section may be entered by any court having jurisdiction thereof or over the relevant party or its assets.
Revised October 2, 2023 Checon, LLC – General Terms and Conditions of Sale and Refining