Terms & Conditions for Refining Services
By submitting precious metals to Pease & Curren for refining services, customer hereby acknowledges receipt of and that it has read, and agrees to the following terms and conditions:
1) Other than as stated herein, Pease & Curren has not made any representations of any kind to the customer.
2) The yield or assay performed by Pease & Curren as part of its refining services is one of the criteria used as the basis for determining the content and/or quality of the precious metals to be purchased from customer and/or to be credited to customer account. The other factors include, but are in no way limited to, the character and historic quality of customer materials, Pease & Curren’s laboratory analysis and the uncertainties thereof, inspection of the materials, samples tested, refinery inventory results, Pease & Curren’s risk and costs, Pease & Curren’s refining practices, the size of the shipment and amount of scrap, and (collectively, the “settlement” assay). The settlement assay will not consider and shall not be based on any assays performed by the customer or by a third-party on behalf of the customer before the materials were submitted to Pease & Curren.
3) Based on the settlement assay, with its various components, final settlement is reached by agreement between customer and Pease & Curren. Pease & Curren makes an offer to customer based on the settlement assay, with its various components. The seller then, as its free act and deed, accepts or rejects Pease & Curren’s offer.
4) Pease & Curren makes no warranties to customer whatsoever, either express or implied.
5) Customer agrees that Pease & Curren’s offer to the customer shall not rely on or be based on any third-party assays or yields performed before the materials were submitted to Pease & Curren. Customer further agrees that Pease & Curren’s offer to the customer shall be based on the settlement assay and, if the customer obtains at its sole expense an assay from a sample taken from the homogenous bars created by Pease & Curren during its refining services, on the results of that third-party assay by an independent lab (the “customer assay”). If there is a discrepancy between Pease & Curren’s settlement assay and the customer assay, then, in accordance with industry standards, the parties shall submit a further sample of the homogenous bar a third-party laboratory (Umpire) to further assay the materials and settle the dispute. The final settlement amount then shall be determined by the parties once all three assays have been received and considered.
6) Pease & Curren’s sole liability for damages in connection with any claim or dispute, whether based on contract, tort, or other legal theory shall be limited to Pease & Curren’s settlement fees, if any, paid to customer pursuant to this quotation with respect to the materials which are the subject matter thereof.
7) In the absence of specific requirements, which are only in affect if agreed to in writing by Pease & Curren, commercial tolerances and custom and usage shall be applicable.
8) These terms and conditions, and any refining services performed by Pease & Curren for customer, shall be governed by the law of the state of Rhode Island.
9) Any legal action, court proceeding, or arbitration to construe or enforce these terms and conditions or otherwise resolve any dispute between the parties based on these terms and conditions or in any way arising out of or relating to Pease & Curren’s refining services for the customer, shall be commenced and maintained in an appropriate court or other forum in Kent County, Rhode Island.
10) If any legal action is brought arising out of or relating to Pease & Curren’s refining services for customer, including any action to enforce or interpret these terms and conditions, the prevailing party shall be entitled to recover its reasonable attorneys’ fees from the other party. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which the prevailing party may be entitled. This provision applies to the all of the terms and conditions, and to any refining services performed by Pease & Curren for customer.