ARM Industries, LLC Standard Terms and General Operating Conditions
Unless otherwise stipulated, these Standard Terms and General Operating Conditions “Standard Terms” are applicable to transactions and/or contracts between ARM Industries, LLC, “ARM”, and Customer. “Customer” is defined as any business, corporation, company, person, entity, or anyone else transacting business with ARM in any manner whatsoever. Any contract or agreement entered into between Customer and ARM will operate as if the terms represented in these Standard Terms were made expressly a part thereof. ARM’s Standard Terms is the governing document with respect to any and all business dealings between ARM and Customer and shall override any and all provisions, terms, and stipulations in Customer purchase orders, sales orders and/or any other Customer documents. ARM’s failure to object to any terms, provisions, and/or stipulations represented in any Customer documents that are at variance with ARM’s Standard Terms shall not be deemed a waiver of the terms and conditions contained herein. Any acknowledgement by Customer of these Standard Terms with changes made to it by Customer constitutes a counter-offer.
Warranty of Title: Customer warrants to ARM that it has good and marketable title to said property, full authority to sell and transfer said property, and that said property is presented for processing or sold free of all liens, encumbrances, liabilities, and adverse claims of every nature and description whatsoever. Customer further warrants that the said property is not from or the result of illegal activity in this country or any other country. Customer further warrants to ARM that it will fully, defend, protect, indemnify, and hold harmless ARM and its lawful successors and assigns from any adverse claim thereto. Customer warrants that any transaction initiated by Customer will not cause ARM to be in violation of any anti-money laundering, anti-terrorism, or other applicable law of the U.S., any state or province thereof or any foreign country.
Any and all legal proceedings to enforce this Agreement, whether in contract, tort, equity or otherwise, shall be brought in the State or Federal Courts sitting in Salt Lake City, Utah, the parties hereto hereby waiving any claim or defense that such forum is not convenient or proper, and/or that the court lacks personal jurisdiction over Customer. ARM and Customer each hereby agrees that any such court shall have “in personam” jurisdiction over it, consents to service of process in any manner prescribed by Florida Law, and agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner specified by law. Further any and legal proceedings to enforce this agreement shall be governed by the laws of the state of Florida.
Insurance, Delivery, Weighing, and Sampling:
Customer shall be responsible for insuring any incoming shipments, unless otherwise agreed to in writing. To insure incoming shipments through ARM, Customer must notify ARM, within a reasonable period of time, of any shipments destined for ARM. Failure to do so will result in Customer bearing the risk of loss of the material until such time as ARM is able to insure the incoming material. Risk of loss of material will pass from Customer to ARM upon delivery to and acceptance at ARM’s plant facilities, unless otherwise agreed. Upon receipt by ARM of metal sent by Customer for refining and/ or minting and acceptance by ARM, ARM shall bear the responsibility of insurance for loss or damage to such metal while at ARM.
Any and all metal sent by Customer shall be labeled bearing the gross, net, and tare weights of said metal. In an effort to minimize production costs, ARM may request Customer material be packaged in a particular way prior to shipment to ARM. Customer must follow all instructions that ARM may give to Customer regarding the packaging of material. Material that arrives packaged in a manner other than that requested by ARM may be subject to additional processing fees. All weights of Customer material are to be ultimately determined by personnel of ARM. In the event Customer’s material should arrive at ARM with any broken seals, damaged seals, or seals that evidence tampering, ARM will seek Customer permission prior to the weighing, sampling, assaying, and/or any other procedures with respect to said material, unless otherwise agreed to in writing. Settlement weights are determined and governed by ARM.
ARM’s acknowledgment of receipt of Customer material shall not constitute agreement as to the quantity, weight, composition, or description stipulated by Customer. ARM shall, within a reasonable amount of time, inspect Customer material and shall promptly notify Customer of any significant variances in the material including but not limited to quantity, weight, and composition of the material. ARM shall keep Customer informed of the processing of Customer’s material. Customer must notify ARM within a reasonable period of time from receipt of notice of any reported variances to make an objection concerning such variances. Customer’s failure to so object shall be deemed a waiver by Customer of any claim Customer may have against ARM with regard to such variances. Any disagreement between ARM and Customer resulting in a frustration of the agreement, and requiring return of unrefined material, will be done at the Customer’s expense.
Customer MUST contact ARM and seek approval prior to shipment of material containing any of the following elements.
|As – Arsenic||Be – Beryllium||Bi – Bismuth||Cd – Cadmium||Hg – Mercury||Ni – Nickel|
|Pb – Lead||Sb – Antimony||Se – Selenium||Sn – Tin||Te – Tellurium|
Failure to do so may result in any of the following including but not limited to: (a) The return of Customer’s metal to Customer at Customer’s expense, (b) A handling fee of up to $5000.00
Melting and Assaying:
From each lot and/or melt ARM shall collect a representative sample in the form of a button, bar, thief sample, and/or by and through any sampling procedure ARM may deem appropriate for the given material. This sample is then used conduct an analysis of Customer’s material.
ARM will conduct assay trials and report the results to the Customer. Customer has forty-eight (48) hours in which to object to the assay report after which time the assay report will be deemed accepted by Customer and the right to contest the assay report will be deemed waived. Upon objection by Customer to the assay report, ARM may pursue various options including but not limited to: (a) negotiating mutually agreeable figures with which to compute the precious metals contained in the lot or melt, or (b) agreeing with Customer to solicit an umpire assay (third party assay). (Please request an “Umpire Procedure” document should you desire further explanation) Note: ARM will dispose of any and all precious and non-precious material including but not limited to any slag, magnetic, and or any precious and non- precious material not requested by Customer for return. ARM shall be free of any liability to return any additional metal not requested by Customer and/or agreed upon by Customer and ARM or specifically noted in the refining terms. Settlement times may vary depending on available production capacity. Settlement shall not occur during weekends, legal holidays and ARM’s vacation periods.
Unless otherwise agreed, Customer agrees to pay any and all preparation, treatment, refining, minting, and/or any other customary charges related to the said material. Sales, use, excise, and/or any other taxes or assessments, levies, or governmental charges be it federal, state, local that are in addition to the above mentioned charges shall be paid by the Customer. All charges become payable after Customer receipt of the invoice. ARM is entitled and empowered to withhold delivery of any returnable or transferable metals or money due to the Customer until such time as all amounts due to ARM by Customer are received. In attempting to retrieve any monies due ARM by Customer or its assigns, ARM reserves the rights and remedies including but not limited to: (a) to cancel any Customer order (b) to refuse to make further deliveries due to Customer (C) to declare due and payable immediately any and all unpaid amounts for goods previously delivered to Customer.
All ARM charges are payable upon the rendering of an invoice. Acceptance of check, draft, credit card payment(s), or any remittance except legal tender (cash) shall not constitute payment until such payment processes are completed and any pay period to contest any charges reflected on this invoice have expired. Until such time, ARM shall be deemed to retain title to and a security interest in all material covered by any ARM invoice to secure the payment of the same. If Customer fails to make payments when due, the amount unpaid is subject to an interest charge of ten percent (10%) per annum discounted to represent the amount of time passed for which payment has not been received. This interest rate is subject to fluctuation without notice based on current bank base lending rates.
Power of Attorney:
Customer hereby appoints ARM as Customer’s attorney-in-fact, with full power of substitution, to demand, receive, and collect for ARM’s own use and benefit all debts, obligations, and accounts receivable now owing to ARM. Customer further authorizes ARM to do all things legally permissible, required, or deemed by ARM to be required, to recover and collect the debts, obligations, and accounts receivable and to use Customer’s name in any manner ARM may deem necessary for the collection and recovery of the debts, obligations, and accounts receivable but without cost, expense, or damage to Customer.
Additionally, as a course of business, ARM reserves the right to offset refining and/or minting charges by liquidating Customer’s pool account to the extent that such charges are paid. Such charges include but are not limited to any overdraft fees, unpaid fees or charges, and handling fees for deleterious materials for which Customer is responsible. Customer empowers ARM to offset and/or liquidate any Customer pool account under any company or corporate name where Customer is found to have common ownership, to secure any and all debts owed to ARM. In addition to any costs incurred by ARM in connection with Its enforcement of any sums of money, or metal, or value thereof due hereunder or enforcement of its rights hereunder, if ARM employs an attorney to enforce collection of any sums due hereunder or to enforce any of its rights hereunder, in whole or in part, then Customer will pay a reasonable fee representing such attorneys’ services including costs, regardless of whether suit is instituted, and whether at trial, on appeal, in mediation, arbitration, or administrative proceedings.
A pool account is a ledger account representing the amount of returnable metal owed to Customer (if account reflects a positive balance), or the amount of metal owed to ARM (if the account reflects a negative balance). Precious metals are fungible; therefore any unit of material is equivalent to another of like kind i.e. similar quality and/or value, and is deemed adequate payment for purposes of outstanding Pool Accounts. Returnable metal represented in a Customer Pool Account does not pertain to specific, segregated, or identifiable metal; rather it represents a future obligation of ARM to return common inventory of gold, silver, platinum, palladium, or platinum group metals. ARM reserves the right to return precious metals to Customer of like kind representing the ounces of precious metals owed to Customer. ARM reserves the right to offset negative balances in Customer’s pool account with respect to any and all metal in Customer’s pool account by purchasing and/or liquidating any metals reflecting a positive balance in Customer’s pool account. ARM reserves the right to price out any unfixed ounces remaining in Customer pool account in an effort to settle Customer lot. Should Customer desire to leave ounces un-priced in Customer pool account, Customer must notify ARM in writing at least twenty four (24) hours prior to the settlement date of the respective lot; after such time has elapsed, Customer shall be deemed to have waived such right. Note: Please see ARM Purchases for a description of ARM’s returnable metal.
It is expressly agreed upon by both parties that any and all material shipped to Customer, and/or delivered to Customer, and/or released to Customer on a consignment/bailment basis remains the property of ARM, with a security interest in ARM, until the material is returned to ARM in its entirety with interest paid, or material of equal quality, kind, and value is returned to ARM. Customer does not have legal title to such property until the above obligations are fulfilled. Should Customer transfer, assign, sell, or attempt to pass title to said material in any other way, Customer will be responsible for returning to ARM material of like kind, representing the same value.
Customers will be paid according to their returnable metals. The returnable metal represents the amount of precious metals contained in the Customer lot minus any ARM refining/minting charges and/or any other charges. Returnable metals shall be in the form of fine gold or silver bars or rounds and/or granulation unless otherwise agreed Unless otherwise agreed, fine gold bars/rounds and/or fine gold granulation shall assay a minimum .9995 fine, and the fine silver bars and/or granulation shall assay a minimum .999 fine. Returnable Platinum, Palladium, and Platinum group metals shall assay a minimum of .9995 fine. ARM shall not be liable for direct or consequential losses stemming directly or indirectly from market fluctuations and/or any other cause whatsoever as a result of late delivery of any material by ARM. ARM delivery schedules are subject to change without notice.
Fixing of Metal:
Customer has the following options when fixing precious metals with ARM:
1. SPOT – price is determined by ARM Trading Personnel based on the metal price as determined by global markets at the time of fixing.
2. LONDON PM- fix request must be received by ARM Trading Personnel by 9:30 AM E.S.T. the day of the fix
Note: ARM Industries market prices may reflect a slight discount as stipulated by market conditions.
Customer warrants that any purchase or sale contract has been effectuated by Customer for the sole purpose of securing pricing for the ultimate sale or purchase of precious metals and has not been made for any speculative reason whatsoever. Customer hereby has an obligation to deliver or purchase said metal to or from ARM within ten (10) business days from the effective contract Trade Date. Should Customer fail to deliver/purchase said metal within ten (10) business days, ARM reserves the right to reverse and/or offset this outstanding sales/purchase contract. In the event of a reversal of this contract, ARM will be responsible for the return of any moneys due Customer as a result of the offset within a reasonable amount of time. Should the offset result in Customer owing moneys to ARM, Customer shall be responsible for said funds and ARM may take the following steps to recover said funds owed and outstanding, including but not limited to: (1) liquidation of customer’s pool account, (2) liquidation of customer balance, (3) legal action in furtherance of an attempt by ARM to recover funds due as a result of a reversal of this contract. If legal action is required, customer hereby accepts full responsibility for any reasonable costs and/or fees and/or expenses incurred on behalf of ARM in furtherance of this legal action.
Upon the commencement of a trade with ARM, Customer shall receive an e-mail from ARM confirming the trade details. Customer shall be responsible for providing ARM with a proper e-mail address to which trade confirmations shall be sent. Customer shall also bear responsibility for notifying ARM should any changes occur in regards to the desired recipient of the e-mail and/or e-mail address therein. It shall be the responsibility of Customer to notify ARM in the event Customer conducts a trade with ARM and does not receive an e-mail confirmation. Further, Customer agrees that should ARM’s records show that ARM sent an e-mail confirmation to Customer, Customer shall be conclusively deemed to have received said e-mail confirmation. By agreeing to the terms and conditions contained herein, and receiving an e-mail confirming the details of Customer’s trade, Customer agrees that he has entered into a written, legally binding contract for the sale/purchase of precious metals contained within the confirmation e-mail. Customer further warrants that said contract is in compliance with the Florida (Utah) Uniform Commercial Code § 672.201, § 668.003 (4) and § 668.004 and agrees to waive any defenses under Florida Uniform Commercial Code § 672.201.
If ARM Industries, LLC is prevented from completing performance of any or all of its obligations under this Agreement by an act of God or any other occurrence beyond its control, then ARM Industries, LLC shall be excused from further performance upon notice to Customer stating the reason for the nonperformance. Additionally, the parties understand that performance by ARM Industries, LLC may be interrupted or delayed by an occurrence outside of its control, including but not limited to the following: an act of God e.g. hurricanes and floods, war, riot, sovereign conduct, loss of electrical power for any reason whatsoever, or conduct of third parties. If that should occur, ARM Industries, LLC shall be excused from performance for as long as reasonably necessary to complete performance.
Under no circumstances shall ARM be liable for any incidental or consequential damages incurred by Customer for breach of any obligation arising out of or relating to the transactions herein or to the subsequent sale or use of returnable metals delivered to Customer hereunder. Except otherwise provided, the aggregate liabilities of ARM to Customer arising out of or relating to any breach of warranty shall not exceed the aggregate refining and/or minting fees actually paid by Customer to ARM in regard to the materials or returnable metals which are the subject to the breach.
As a condition precedent to conducting business with ARM, Customer agrees that if Customer fails to comply with any of its obligations herein, Customer will indemnify and hold ARM harmless from all injuries, costs, suits, expenses (including without limitation attorney’s fees and other costs of defenses), liabilities, fines, penalties, judgments, cost of settlement, losses and other damages that ARMmay incur as a result of such failure by Customer.
This instrument contains the entire agreement between the parties relating to the rights granted and the obligations assumed. Any oral representations or modifications concerning this instrument whether arising from any usage or trade, course of dealing, accepted industry practice, course of performance, evidence of consistent additional terms, or otherwise, shall not be binding upon either party unless such modifications are both in writing and signed by both ARM and Customer.
Both Parties agree that they are merchants as defined in the Uniform Commerical Code § 2-104 (1).
Waiver: The waiver by ARM of any Customer breach of these Standard Terms or forbearance of ARM to enforce its rights hereunder shall not operate as or be construed as a waiver of subsequent breach by Customer or a waiver of rights of ARM.
If any provision of these Standard Terms is found by a court of competent jurisdiction to be wholly or partially invalid, the remaining provisions will nonetheless be valid and enforceable.
The terms and conditions set forth herein contain schedules and terms and conditions are subject to change without notice. Upon receipt of these Standard Terms and General Conditions, whether via fax, mail, or in person, I, and/or the company I represent and/or for which I am an agent, agrees to be bound by the terms, conditions, stipulations, rules, and regulations contained herein. Delivering material or doing business with RMC after having received the Standard Terms and General Operating Conditions deems that I have agreed to accept the Terms and General Conditions contained herein regardless of whether I have signed this agreement.
Further, I warrant that I am an authorized agent of “Customer” and have the full actual authority to enter into this agreement and conduct the type of business in which I am engaged with ARM.