QML_Metals_&_Logistics

QML, Inc.
272 Ferris Avenue
Rumford, RI 02916

Phone: 401.490.4555

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QML

QML, Inc. Standard Terms and Conditions

 

1. ACCEPTANCE & OBLIGATIONS OF PARTIES: Customers acceptance of its purchase offer is limited to its terms , which include the standard terms and conditions herein.
Upon acceptance, this purchase offer, including the standard terms and conditions herein, becomes the contract. Shipment to QML, Inc. (QML) or its advised destination "Works" shall be deemed acceptance. Following acceptance, customer shall deliver its specified material to QML, Inc. or its advised destination "Works". QML shall manage the sampling of customers material to determine the amounts of metals offered and shall report to the customer for such metals, either by paying customer for such offered metals or returning such offered metals to the customer, and customer shall pay QML, Inc for it’s services, in accordance with the terms and conditions of this contract.

2. DELIVERY AND RISK OF LOSS: Unless Customer's quotation provides otherwise (but see the next paragraph below), Customer is responsible for exercising reasonable care in transporting its material to QML's designated facility and will bear the risk of loss until QML has accepted the material. Regardless of when QML assumes the risk of loss, QML's liability, if any, to Customer for any loss of material is limited solely to payment for accountable metals in accordance with the values in the quotation. [Unless otherwise provided in this Agreement, delivery dates are quoted from date of receipt. If instructed by customer to hold material from processing pending weight agreement or assay settlement, delivery times will commence on the date of release or settlement. QML will make every effort to meet the delivery date, however, in no circumstances shall QML be liable for direct or consequential losses sustained by the Customer through market fluctuations or any other cause whatsoever, arising out of the late delivery of metal by QML.]

3. WARRANTY OF TITLE: For material delivered to QML, Customer warrants that it has legal title to the material or is the duly authorized agent of the owner of the material, with the right in either instance to transfer ownership of the material to QML free and clear of all liens and encumbrances. Customer shall indemnify and hold QML harmless for any breach of this warranty. Customer further warrants the accuracy of the contents of its documentation and that the material, unless otherwise noted, does not contain carcinogenic, hazardous, toxic or deleterious materials and that the materials provided with this documentation or with a prior similar delivery of material is current and applicable to this order and agrees to indemnify and hold QML harmless for any breach of this warranty.

4. SHIPMENT OF HAZARDOUS WASTE: Notwithstanding any term to the contrary in the quotation or otherwise, Customer shall in all cases be solely responsible for shipping any hazardous waste delivered to QML and shall at all times retain title and bear the risk of loss and liability with respect to such shipments of hazardous waste. When QML authorizes Customer to ship hazardous waste to QML, Customer may ship such waste only to the facility so designated by QML. QML may advise Customer as to carriers it believes to be permitted to ship such waste, but QML will have no liability for the selection or performance of such carriers.

Packaging or containers may be supplied by QML to its customers only as set forth in the quotation or contractual agreement. It is the responsibility of the shipper of recoverable materials to ensure that all containers used for transport, whether or not supplied by QML, meet all regulatory requirements and are in all respects suitable for the transportation of their specific recoverable materials. QML assumes no liability for the suitability or performance of any containers it specifies or supplies.

[NOTE: Federal DOT regulations require a statement of certification to appear on all shipping documents (e.g. Hazardous Waste Manifest, Bill of Lading) attested to by the generator/shipper. "I hereby declare that the contents of this consignment are fully and accurately described above by proper shipping name and are classified, packed, marked and labeled, and are in all respects in proper condition for transport by highway according to applicable international and national government regulations and state laws and regulations."]

5. RIGHT TO REFUSE MATERIALS: QML has the right to refuse Customer material when QML, in its sole discretion, determines that such material is unsuitable or undesirable due to physical, metallurgical, safety, non-conformance, regulatory or other reasons. Upon such refusal, QML will have no further obligation with respect to the material other than to notify Customer. QML is authorized to make reasonable arrangements to return the material to Customer at Customer's expense and at Customer's risk.

6. RECEIVING DISCREPANCIES: If a shipper is not represented at the time of unloading, he/she will be notified of discrepancies with reference to the accompanying packing list in piece count, gross weights, contents etc. within [5] business days. If telephone communications are unsuccessful a certified letter will be sent. If no packing list accompanies the shipment, QML assumes no responsibility for material shortages or notification thereof. Packing lists must include the number and type of containers, the gross, tare, and net weight of each container and an accurate description of its contents. Each item must reference the applicable quote or contract number and indicate the specific material present. In any event, QML can only verify gross weights before processing or sampling, and discrepancies in tare weights are the Customer's sole responsibility. For represented lots, the weights obtained at the represented weigh-in shall apply.

7. DETERMINATION OF OFFERED METALS: After accepting customer's material, QML, in its sole discretion, shall determine the amount of metals offered for customer’s materials, which will then be purchased and or returned to the customer as stated in the customers Purchase Offer and subject to the terms contained in this contract. Offered values are limited to the metals contained in the Purchase Offer with all stated minimum deductions and accountabilities to apply. The amounts of offered metals will be based on the refiner's process and procedures, QML's net recovery, cost and yields, sampling and assay procedures, negotiated settlements, past settlement yields, estimated contents, and arbitrary offers.

8. PROCESSING & SAMPLING: After receiving customer's material, processing will commence on all or part of the material. Customer may have an approved representative present during the sampling process all reporting shall be made on a "Blind Basis" unless a non-circumvention agreement is fully executed between QML and customer. Upon completion of sampling all materials will be released to for treatment. These materials can not be returned to the customer. QML's customer does not hold the right to have the materials returned, unless QML had been notified in writing of their intent upon shipping.

9. ASSAY: QML at minimum shall have the materials received assayed for the elements identified in the Purchase Offer. These assay results shall be used for settlement purposes using QML's settlement procedures and determination of payable metals as stated above. All assay percentages reported on the Final Purchase offer the "Final Settlement Report" shall be the percentages on metals offered in relation to the weight of the material received and or the determined settlement weight.

10. SPECIAL CHARGES: If Customer material is found to contain impurities or deleterious elements (as described below) requiring special handling, sampling or treatment, QML is entitled to impose special charges (at QML's sole discretion) to reflect the higher costs of such special handling, sampling or treatment.

11. DELETERIOUS ELEMENTS: The elements arsenic and cadmium are considered to be deleterious. Prior to delivery of material to be processed hereunder, the Customer must notify QML of their presence in order that process modifications (and possibly appropriate additional charges) may be made. If the Customer fails to notify QML of their presence, then special charges may be assessed in addition to any increased processing charges. In addition, coated beryllium copper requires special processing and must be identified when requesting a quotation and shipping. All costs and liabilities arising out of or related to improperly classified materials or failure of Customer to identify material outlined herein as deleterious shall be Customer's sole cost and responsibility.

Under no circumstances may Customer ship material containing mercury under this agreement unless at QML's discretion, special arrangements have been made beforehand. If QML discovers any mercury in Customer material, QML shall have no further obligation to accept or process the material. QML may impose special charges on Customer and/or may treat the material as if it had refused to accept it.

Antimony, bismuth, sulfur, selenium, tellurium, lead, nickel or iron may require additional processing in order to obtain a proper sample. QML reserves the right to invoke an additional charge for any such additional treatment.

12. SETTLEMENT: Based upon the determination of offered metals, as described above QML shall make a Final Purchase Offer or the "Final Settlement Report" with the customer. This final report shall be binding by both parties unless either of the parties is notified in writing within 5 days after the Final Settlement Report has been sent by QML; electronically via e-mail, facsimile, or by mail. If the customer takes physical delivery of the offered metals, QML shall make such delivery F.O.B. QML's designated facility, or at customers designated pool account, with all costs to be the responsibility of the customer.

13. PASSAGE OF TITLE: Title to material that Customer delivers to QML will pass to QML at the time the material is delivered under this agreement unless otherwise specifically agreed in writing by QML, such title and risk of loss shall pass at the times and places so agreed. Notwithstanding the foregoing, if any materials on their delivery do not conform to this Quotation (including without limitation, failure to obtain QML’s written advance approval of the shipment of material containing hazardous substances QML shall have the right to elect that such title and risk of loss shall remain with Customer and QML may ship such material to Customer at Customer’s risk and expense.

14. LIMITATION OF QML'S LIABILITY: QML's liability, if any, to Customer for breach of any obligation arising out of or relating to the transactions herein or the subsequent sale or use of the metal delivered to Customer is limited to the amounts due to Customer pursuant to the terms of the contract. In no event shall the aggregate liabilities of QML to Customer arising out of or relating to any such breach(s) exceed the aggregate refining charges actually paid by Customer to QML in regard to the material or metals which are the subject of the breach. IN NO EVENT WILL QML BE LIABLE FOR CONSEQUENTIAL OR INCIDENTIAL DAMAGES, EVEN IF QML HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. COMPLIANCE WITH LAWS: Customer represents and warrants that it and its agents and contractors have and will comply with all applicable federal, state and local laws, including, but not limited to, environmental and transportation laws, in connection with this contract. Customer shall indemnify and hold QML harmless for any violation of such laws by Customer or its agents or contractors in connection with this contract.

16. PAYMENT BY SET-OFF: QML shall have the right, at any time without notice, to set off any liability (whether to pay money or to credit, deliver or transfer precious metals or otherwise) of QML to Customer against any liability of Customer to QML whether or not the same shall then be due and payable and, in furtherance thereof, to convert metal to money or money to metal at market value at the date of such set off.

17. GOVERNING LAWS: This contact is governed by the laws of the State of Rhode Island, without regard to its conflict of laws rules. Customer agrees that the Courts of the State of Rhode Island and the federal courts located in the State of Rhode Island shall have exclusive jurisdiction over any dispute, claim or controversy relating to this contract. Customer hereby consents to such jurisdiction and waives any right it might otherwise have to seek a transfer of venue to an out-of-state court.

18. LIMITATION OF ACTIONS: All suits or causes of action by either party arising out of this contract are barred unless commenced within [one] year from the date of the alleged breach. This limitation shall not affect the right of offset as specified in Section 20. Customer shall indemnify QML against all actions, proceedings, losses, claims, costs, damages, and expenses whatsoever in respect of loss of life, personal injury or damage to property arising out of or in connection with execution of any work covered by the contract resulting from any defects or health hazards in the material or from any instructions or false or misleading information given or supplied by Customer in connection with the contract unless such loss of life, personal injury or damage to property is attributable solely to QML or those in its employ.

19. SEVERABILITY: The provisions of this contract are severable. If one provision is held invalid, the other provisions remain in effect.

20. ENTIRE AGREEMENT: Customer's contract, consisting of Customer's quotation and these standard terms and conditions sets forth the entire agreement between the parties as to the subject matter hereof and supersedes any and all prior agreements or representations with respect hereto. Any modifications, limitations or waiver of this Agreement shall be binding on QML, only if made in writing and executed by a duly authorized employee of QML. QML's performance of services, delivery of goods or acceptance of payment shall not be deemed a modification of these Terms and Conditions or an acceptance of any departure from these terms.

21. FORCE MAJEURE: If by reason of acts of God, strikes, fires, armed conflicts, wars, transportation difficulties, energy shortages or outages, labor disputes, boycotts, lockouts or government actions, QML or its Customer cannot fulfill its obligations under this contract, then the same shall be suspended as long as such cause or reasons shall delay or prevent either party from performance of its obligations for a period equal to the period of such suspension. In which case the settlement dates and pricing will be re-negotiated with QML having the right to settle in the original time frame if it so desires. If this right is exercised by QML, it must state this intention in writing within 15 business days of the start