FJC GENERAL TERMS AND CONDITIONS
1. INTERPRETATION
1.1 In these Conditions, the following definitions apply:
Acceptance: the completion of the requirements set out in clause 4.12 and Accept and Accepted shall be interpreted accordingly.
Agreement: the contract between FJC and You made up of these Conditions and the Cover Sheet.
Booking Price: the price presented to You when You have completed the booking of the Catalytic Converters through the Online Portal.
Cancellation Fee: means amount equal to £200.
Catalytic Converters: have the meaning set out in the Cover Sheet.
Catalytic Converter Specification: any specification for the Catalytic Converter set out in the Cover Sheet.
Conditions: these General Terms and Conditions, as amended from time to time in accordance with clause 22.11.
Cover Sheet: the cover sheet set out on the first page of these Conditions.
Delivery Date: has the meaning set out in the Cover Sheet.
Delivery Location: has the meaning set out in the Cover Sheet.
Effective Date: has the meaning set out in the Cover Sheet.
Financing/Leasing Rate: has the meaning set out in the Cover Sheet.
FJC Price: has the meaning set out in the Cover Sheet.
Incoterms: have the meaning set out in the Cover Sheet.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Metal Account: the account into which You receive the PGM content, as specified in the Cover Sheet or determined by clause 14.2.
Monolith Powder: the powder form of the Catalytic Converters provided by You.
Online Portal: FJC's online catalytic converter database.
Order: FJC’s order for the purchase of Catalytic Converters, Your order for the Toll Refining Service and/or Your order for the Toll Processing Service on the terms set out in the Cover Sheet and these Conditions.
PGM: the platinum group metal elements in the Catalytic Converters, being Platinum, Palladium and Rhodium.
PGM Price: is the price as determined by clause 9.
Quotation Number: has the meaning set out in the Cover Sheet.
Refinement Process: is the process described in clauses 10 and 11
Remaining Sample: the Catalytic Converters which undergone the Toll Refining Service but which are not included in the Sample.
Return Rate Basis: has the meaning set out in the Cover Sheet and is the percentage of the PGM elements which may be returned to You.
Sample: the sample of Catalytic Converters chosen by FJC to undergo the Toll Refining Service Process Step 2.
Settlement Date: has the meaning set out in the Cover Sheet.
Settlement Period: has the meaning set out in the Cover Sheet.
Spot Price: the price for the Catalytic Converters as determined by FJC at its sole discretion.
Toll Processing Service: is the Toll Refining Service and Refinement Process.
Toll Refining Service: Toll Refining Service Process Step 1 and Toll Refining Service Process Step 2 and Toll Refining Service Process Step 3.
Toll Refining Service Process Step 1: is the process by which FJC crush and homogenise the Catalytic Converters ready for Toll Refining Service Process Step 2 and Toll Refining Service Process Step 3.
Toll Refining Service Process Step 2: is the process by which FJC analyse the Sample to identify the PGM content, PGM weight and moisture levels in the Sample.
Toll Refining Service Process Step 3: is the process by which FJC use the results of Toll Refining Service Process Step 2 to estimate the PGM content, PGM weight and moisture levels in the Remaining Sample.
You: has the meaning set out in the Cover Sheet.
Your Price: has the meaning set out in the Cover Sheet.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a references to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails. This clause 1.2.5 shall not apply to the service of any proceedings or other documents in any legal action.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by FJC to:
2.1.1 purchase the Catalytic Converters from You;
2.1.2 provide the Toll Refining Service to You and to purchase the PGM content in the Catalytic Converters; and/or
2.1.3 provide the Toll Processing Service to You,
in each case, in accordance with this Agreement.
2.2 Each Order that may from time to time be entered into by You and FJC and these Conditions shall together comprise a separate and distinct contract for:
2.2.1 the purchase of the Catalytic Converters;
2.2.2 the provision of the Toll Refining Service and purchase of the PGM content in the Catalytic Converters; and/or
2.2.3 the provision of the Processing Service.
2.3 The Order shall be deemed to be accepted on the Effective Date.
2.4 This Agreement does not oblige FJC to:
2.4.1 purchase any catalytic converters until Acceptance has occurred;
2.4.2 purchase the PGM content in the Catalytic Converters until the Toll Refining Service has been completed and the PGM Price has been agreed; and/or
2.4.3 provide the Toll Processing Service until the Order has been deemed accepted.
2.5 FJC makes no representation or promise as to the amount of business which You can expect from FJC under this Agreement. If FJC provides any estimates as to the number of catalytic converters which it may be able to purchase and/or for which it may provide the Toll Processing Service and/or for which it may provide the Toll Refining Service, such estimate is for the parties' convenience only and will not bind FJC. The number of catalytic converters will be that set out in the Cover Sheet. FJC will not be liable for any actions taken by You based on any estimates.
2.6 The Agreement is non-exclusive and FJC may:
2.6.1 purchase any catalytic converters from;
2.6.2 provide the Toll Refining Service to; and/or
2.6.3 provide the Toll Processing Process to,
any third party.
2.7 These Conditions apply to the Agreement to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No terms or conditions endorsed upon, delivered with or contained in Your quotation, acknowledgement, or acceptance of an Order, specification, or similar document will form part of the Agreement and You hereby waive any right on which You otherwise might have to rely on such terms and conditions.
3. PURCHASE OF THE CATALYTIC CONVERTERS THIS CLAUSE 3 SHALL APPLY WHERE YOU ARE SELLING AND FJC ARE BUYING THE CATALYTIC CONVERTERS
3.1 You shall ensure that the Catalytic Converters shall:
3.1.1 correspond with their description and the Catalytic Converter Specification;
3.1.2 correspond with any sample of catalytic converters which You may have provided FJC prior to the Effective Date in terms of quality and the Catalytic Converter Specification;
3.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by You or made known to You by FJC, expressly or by implication, including any "de-canning" and refinement of the Catalytic Converters to extract the platinum, palladium and rhodium element components, and in this respect FJC relies on Your skill and judgment;
3.1.4 where applicable, be free from defects (including but not limited to re-welding on the converter can, damage to the monolith, attempted removal of the ceramic substrate and attempt to damage the code stamp on the converter);
3.1.5 not have been tampered with and are not damaged, defective and/or fake; and
3.1.6 comply with all applicable environmental, statutory and regulatory requirements relating to the sale, storage, handling and delivery of the Catalytic Converters.
3.2 You shall immediately notify FJC if the Catalytic Converters require a recall or pose a threat to individuals and/or the environment, and You shall take all such steps as are reasonable to bring the defective Catalytic Converters to FJC's attention. You shall work together with FJC to recall the defective Catalytic Converters.
4. DELIVERY OF THE CATALYTIC CONVERTERS
4.1 Unless otherwise agreed with FJC, You shall deliver the Catalytic Converters on the Delivery Date and at the Delivery Location during FJC’s normal hours of business, or as instructed by FJC.
4.2 You and FJC may agree for FJC to collect the Catalytic Converters from Your premises during Your normal business hours on the Delivery Date (or such other time as You and FJC may agree). Where FJC agrees to collect the Catalytic Converters from You, You shall enter into a separate agreement with FJC and pay a separate fee to FJC.
4.3 Where FJC are responsible for transporting the Catalytic Converters, FJC shall do so in accordance with the Incoterms.
4.4 Regardless of if You or FJC are transporting the Catalytic Converters, You shall ensure that:
4.4.1 the Catalytic Converters are properly packed and secured in such manner as to enable them to reach the Delivery Location in good condition and to avoid any piercing or excessive damage to the metal casing of the Catalytic Converters;
4.4.2 the delivery complies fully with the requirements of the hazardous waste regulations, such as using consignment notes and completing consignee returns;
4.4.3 each delivery of the Catalytic Converters is accompanied by a delivery note which shows the Effective Date, the Quotation Number, the type and quantity of the Catalytic Converters, special storage instructions (if any) and, if the Catalytic Converters are being delivered by instalments, the outstanding balance of Catalytic Converters remaining to be delivered;
4.4.4 the Catalytic Converters correspond with any sample of catalytic converters which You may have provided FJC prior to the Agreement in terms of quality and the Catalytic Converter Specification;
4.4.5 the Catalytic Converters do not contain any poisonous, hazardous, deleterious, toxic and/or harmful elements over and above current environmental regulations (including but not limited to the Catalytic Converters being laced with elements to disrupt the Toll Refining Process and Toll Processing Process);
4.4.6 the Catalytic Converters have not been tampered with and are not damaged, defective and/or fake; and
4.4.7 the Catalytic Converters comply with all applicable environmental, statutory and regulatory requirements relating to the sale, storage, handling and delivery of the Catalytic Converters.
4.5 If You fail to deliver the Catalytic Converters on the Delivery Date and/or at the Delivery Location, You shall be liable to pay FJC any costs which it has reasonably incurred in anticipation of Your delivery (including, but not limited to, any operational costs, overtime wages for staff anticipating the delivery, any hedging costs which FJC has incurred in anticipation of the Catalytic Converters, any change in the market price for the Catalytic Converters, demurrage costs for containers and/or any cancellation costs for containers or other haulage).
4.6 Delivery of the Catalytic Converters shall be completed on the completion of the unloading of the Catalytic Converters at the Delivery Location by FJC.
4.7 If You deliver more or less than the quantity of Catalytic Converters ordered, and FJC accepts the delivery, a pro rata adjustment shall be made to the invoice for the Catalytic Converters.
4.8 You shall not deliver the Catalytic Converters in instalments without FJC’s prior written consent. Where it is agreed that the Catalytic Converters are delivered by instalments, they may be invoiced and paid for separately.
4.9 Without prejudice to FJC's rights under this Agreement, You shall immediately notify FJC in writing of any anticipated delay in delivery and the likely duration of such delay.
4.10 If FJC, for any reason, wishes to postpone the delivery of an existing Order, it shall notify You and You shall use all reasonable endeavours to meet the new delivery date requested by FJC.
4.11 If after delivery FJC, acting reasonably, finds any poisonous, hazardous, deleterious, toxic and/or harmful elements within the Catalytic Converts or finds that any Catalytic Converters have been tampered with and/or are damaged, defective and/or fake, FJC reserves the right to:
4.11.1 where FJC had offered to purchase the Catalytic Converters, refuse to purchase the Catalytic Converters and to offer You the provision of the Toll Processing Service instead;
4.11.2 either reject the Catalytic Converters in their entirety, in which case FJC shall return the Catalytic Converters to You at Your cost and risk, or accepted the non affected Catalytic Converters and reject the affected Catalytic Converters. FJC shall not pay the price applicable to the affected and rejected Catalytic Converters and a pro rata adjustment shall be made to the applicable invoice;
4.11.3 report You and the Catalytic Converters to the appropriate authorities; and/or
4.11.4 arrange for the affected Catalytic Converters to be returned to you at your full cost.
THE FOLLOWING CLAUSE 4.12 SHALL APPLY WHERE YOU ARE SELLING AND FJC ARE BUYING THE CATALYTIC CONVERTERS
4.12 FJC shall not be deemed to have Accepted any Catalytic Converters until:
4.12.1 it has had reasonable time to inspect them following delivery to determine whether they comply with the terms of the Agreement (including the Catalytic Converter Specification);
4.12.2 in the case of latent defect in the Catalytic Converters, until a reasonable time after the latent defect has become apparent; and/or
4.12.3 in the case of an Order based on a sample, it has had reasonable time to compare the bulk of the Catalytic Converters with the sample.
5. TITLE AND RISK
CLAUSES 5.1 AND 5.2 SHALL APPLY WHERE YOU ARE SELLING AND FJC ARE BUYING THE CATALYTIC CONVERTERS
5.1 Risk in the Catalytic Converters shall pass to FJC on Acceptance by FJC.
5.2 Title in the Catalytic Converters shall pass to FJC on Acceptance.
CLAUSES 5.3 AND 5.4 SHALL APPLY WHERE FJC ARE PROVIDING THE TOLL REFINING SERVICE AND ARE PURCHASING THE PGM CONTENT
5.3 Risk in the Catalytic Converters shall pass to FJC on payment of the PGM Price invoice by FJC.
5.4 Title in the Catalytic Converters and PGM Content shall pass to FJC on payment of the PGM Price invoice by FJC.
CLAUSES 5.5 AND 5.6 SHALL APPLY WHERE FJC ARE PROVIDING THE TOLL PROCESSING SERVICE
5.5 Risk in the Catalytic Converters shall remain with You at all times.
5.6 Subject to clause 17.7, title in the Catalytic Converters shall remain with You at all times, until the PGM content is transferred to Your Metal Account or the PGM content has been sold on the Settlement Date (whichever the sooner).
6. FJC REMEDIES
THIS CLAUSE 6 SHALL APPLY WHERE YOU ARE SELLING AND FJC ARE BUYING THE CATALYTIC CONVERTERS
6.1 If You have delivered Catalytic Converters that do not comply with clauses 3.1 and 14.4, then, without limiting its other rights or remedies, FJC shall have one or more of the following rights, whether or not it has Accepted the Catalytic Converters:
6.1.1 to reject the Catalytic Converters (in whole or in part) whether or not title has passed and to return them to You at Your own risk and expense;
6.1.2 to require You to replace the rejected Catalytic Converters or to provide a full refund of the price of the rejected Catalytic Converters (if paid);
6.1.3 to refuse to accept any subsequent delivery of the Catalytic Converters which You attempt to make; and/or
6.1.4 to claim damages for any additional costs, loss or expenses incurred by FJC arising from Your failure to supply the Catalytic Converters in accordance with clauses 3.1 and 14.4.
6.2 These Conditions shall extend to any replacement catalytic converters supplied by You.
6.3 FJC’s rights under this Agreement are in addition to its rights and remedies implied by statute and common law.
7. TOLL REFINING SERVICE
THIS CLAUSE 7 SHALL ONLY APPLY WHERE FJC ARE PROVIDING YOU WITH THE TOLL REFINING SERVICE OR FJC ARE PROVIDING YOU WITH THE TOLL PROCESSING SERVICE
7.1 You acknowledge that Your Price is based on the Minimum Quantity of Catalytic Converters being subject to the Toll Refining Service or Toll Processing Service (as applicable). Where the actual number of Catalytic Converters which are subject to the Toll Refining Service or Toll Processing Service (as applicable) are less than the Minimum Quantity, You acknowledge that FJC may amend Your Price and You accept to pay the amended Your Price.
7.2 You agree that the Return Rate Basis is a reasonable estimate of the percentage of PGM content which may be returned to You following the Toll Refining Process or Toll Processing Service. You agree that the Return Rate Basis may differ depending on the results of the Toll Refining Process or Toll Processing Service and that You shall receive the PGM content from the Toll Refining Process or Toll Processing Service.
7.3 On receipt of the Catalytic Converters or the Monolith Powder, FJC shall subject the Catalytic Converters or Monolith Powder (as applicable) to the Toll Refining Service Process Step 1.
7.4 FJC shall then identify and produce the Sample to undergo the Toll Refining Service Process Step 2.
7.5 Following completion of the Toll Refining Service Process Step 2, FJC shall notify You of the results of the Toll Refining Service Process Step 2 and the PGM content, PGM weight and moisture levels in Your Sample.
7.6 The percentage breakdown of the PGM content, PGM weight and moisture levels revealed during the Toll Refining Service Process Step 2 will be used to estimate the percentage breakdown of the PGM content, PGM weight and moisture levels in the Remaining Sample as part of the Toll Refining Service Process Step 3.
7.7 If You are not happy with the final results produced by FJC from the Toll Refining Service, You must, within twenty four hours from receipt of the PGM content, PGM weight and moisture levels results under clause 7.5 and 7.6, notify FJC, provide Your expectations and readings of the content and request that the Sample is processed and examined by a third party analyst. Failure to notify FJC in accordance with this clause will result in Your deemed acceptance of the results of the Toll Refining Service.
7.8 FJC shall have sole discretion to decide whether the Sample should be sent to a third party analyst for review and analysis. The third party analyst shall be appointed by FJC as soon as reasonably practicable. The third party analyst's findings shall be final and binding on the parties in the absence of manifest error or fraud. The costs of the third party analyst shall be paid by FJC or You, depending on whose initial analysis was the furthest away from the third party analyst's findings.
7.9 If You are happy with the results provided by FJC under clauses 7.5 and 7.6:
7.9.1 FJC may offer to purchase the PGM content at the PGM Price; or
7.9.2 if You have elected to receive the Toll Processing Service, FJC shall provide you with the remaining part of the Toll Processing Service.
7.10 All Intellectual Property Rights in or arising out of or in connection with the Toll Refining Service shall be owned by FJC.
8. YOUR VISIT TO THE FJC PREMISES
THIS CLAUSE 8 SHALL ONLY APPLY WHERE FJC ARE PROVIDING YOU WITH THE TOLL REFINING SERVICE OR FJC ARE PROVIDING YOU WITH THE TOLL PROCESSING SERVICE
8.1 FJC may, at its sole discretion, allow You or Your authorised third party representative to attend the FJC premises in order for You or Your authorised representative to view the Toll Refining Service for such duration and at such time as FJC makes known to You. Should You wish to attend the FJC premises, You must provide FJC with at least twenty four hours' prior written notice.
8.2 At all times whilst at the FJC premises, You shall ensure that Your conduct, or shall procure that the conduct of Your authorised representative, does not unreasonably disrupt the business of FJC.
8.3 You shall keep, or shall procure that Your authorised representative keeps, in strict confidence all information which is of a confidential nature and is disclosed during the visit at the FJC premises, and any other confidential information concerning the FJC's business or its products or its services which You or Your authorised representative (as applicable) may obtain.
8.4 You shall observe, or shall procure that Your authorised representative observes, all health and safety and security requirements that apply at FJC's premises and that have been communicated to You or Your authorised representative by FJC (as applicable).
9. PRICE OF THE PGM CONTENT
THIS CLAUSE 9 SHALL ONLY APPLY WHERE FJC ARE PROVIDING YOU WITH THE TOLL REFINING SERVICE
9.1 Once FJC has completed the Toll Refining Service Process 3, pursuant to clause 7.6, FJC will value the PGM content in the Remaining Sample using Spot Price. You expressly acknowledge that the Spot Price is based on a market rate which may fluctuate on a daily basis in line with market changes.
10. SAMPLING PROCESS
THIS CLAUSE 10 SHALL ONLY APPLY WHERE FJC ARE PROVIDING YOU WITH THE TOLL PROCESSING SERVICE
10.1 On receipt of the Catalytic Converters or Monolith Powder, FJC shall subject the Catalytic Converters or Monolith Powder (as applicable) to the Toll Refining Service as described in clause 7. Following completion of the Toll Refining Service, FJC shall notify You of the results of the Toll Refining Service and the PGM content, PGM weight and moisture levels in the Catalytic Converters.
10.2 Following completion of the Toll Refining Service, FJC will issue its invoice for Your Price in accordance with clause 17.
11. PROVISION OF THE REFINEMENT SERVICES
THIS CLAUSE 11 SHALL ONLY APPLY WHERE FJC ARE PROVIDING YOU WITH THE TOLL PROCESSING SERVICE
11.1 Following payment of Your Price by You, FJC shall:
11.1.1 arrange for the Catalytic Converters to be sent and delivered to its third party refinery provider; and
11.1.2 instruct its third party refinery provider to refine the Catalytic Converters such that the PGM content can be extracted from the Catalytic Converters.
11.2 You consent to FJC, at its sole discretion, mixing the Catalytic Converters with catalytic converters provided by other third parties who are procuring the Toll Processing Service, during FJC's transportation of the Catalytic Converters to the third party refinery and during the provision of the Refinement Process.
11.3 Following payment of Your Price by You and completion of the refinement by the third party refinery, if You sell all or part of the PGM content during the Settlement Period, FJC shall allocate the PGM content in the Catalytic Converters, less any treatment charges, to the Metal Account on the Settlement Date
11.4 If You fail to provide details of the Metal Account to FJC by the Settlement Date, FJC shall have the right to sell the PGM and allocate the proceeds of the sale, less any treatment charges, from the first day after the Settlement Date into Your nominated bank account.
11.5 If You fail or FJC fail to sell the PGM content by the Settlement Date, FJC shall pass onto You in full all costs associated with the storage and insurance of the Catalytic Converters being stored at FJC's premises, until FJC is able to sell the PGM pursuant to clause 11.4 or until You request the return of the PGM to You (whichever the earlier). If You request to have the Catalytic Converters returned to You, You shall also pay the costs to transport the Catalytic Converters from the FJC premises to Your chosen destination. You expressly acknowledge that You must pay the storage, insurance and transportation fees before You can arrange for the collection and return of the Catalytic Converters. You must collect the Catalytic Converters within 7 days from the date on which You notify FJC of Your request under this clause 11.5.
12. CANCELLATION
12.1 You may request for the Catalytic Converters to be returned to You at any time before FJC pay to You any amounts owed to You (in whole or in part). If You would like to cancel Your arrangement and request for the Catalytic Converters to be returned to You, You must notify promptly FJC. You expressly agree that You lose this cancellation right from the point at which FJC pay to You any amounts owed to You (in whole or in part).
12.2 If you choose to have the Catalytic Converters returned to You after receipt of the analysis under clauses 7.5 or 7.6, You shall pay FJC the Cancellation Fee. The parties confirm that Cancellation Fee is reasonable, not unconscionable and proportionate to protect FJC's legitimate interest in the performance of its obligations under this Agreement. You will also be liable for the costs to insure and transport the Catalytic Converters from the FJC premises to Your chosen destination.
12.3 If You wish to exercise Your right to cancel, You expressly acknowledge that You must pay the Cancellation Fee (if applicable), any storage and insurance costs of the Catalytic Converters being stored at FJC's premises and the transportation fees before You can arrange for the collection and return of the Catalytic Converters. You must collect the Catalytic Converters within 7 days from the date on which You notify FJC of Your request under clause 12.1.
13. FJC’S OBLIGATIONS
FJC shall:
13.1.1 act reasonably in determining the Spot Price, to the extent that the Spot Price for the Catalytic Converters is as determined by FJC and the LBMA or EIB index;
13.1.2 provide You with reasonable access at reasonable times to the Delivery Location for the purpose of delivering the Catalytic Converters; and
13.1.3 provide such information as You may reasonably request for the delivery of the Catalytic Converters.
13.2 FJC will provide the Toll Processing Service and Toll Refining Service using reasonable care and skill.
13.3 If FJC's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by You or failure by You to perform any of Your obligations:
13.3.1 without limiting or affecting any other right or remedy available to it, FJC shall be allowed an extension of time to perform its obligations equal to the delay caused by You;
13.3.2 FJC shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from FJC's failure or delay to perform any of its obligations under this Agreement; and
13.3.3 You shall reimburse FJC on written demand for any costs or losses sustained or incurred by FJC arising directly or indirectly from Your act, omission or failure.
13.4 Without prejudice to clause 13.3, FJC shall not be in breach of the Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.5 FJC reserves the right to amend the Toll Refining Service and/or Toll Processing Service if necessary to comply with any applicable law or regulatory requirement or if the amendment will not materially affect the nature or quality of the Toll Refining Service and/or the Toll Processing Service.
14. YOUR OBLIGATIONS
14.1 You shall co-operate with FJC in all matters relating to this Agreement and provide such information and materials as FJC may reasonably request.
14.2 You shall provide FJC the details of the Metal Account as soon as possible if the Metal Account is not provided in the Cover Sheet.
14.3 You shall ensure that at all times you have and maintain all the licences, permissions, authorisations, consents and permits that You need to carry out Your obligations under the Agreement in respect of the Catalytic Converters.
14.4 In respect of the Catalytic Converters, You warrant that You have full clear and unencumbered title to all such items, and that at:
14.4.1 Acceptance (where You are selling and FJC are purchasing the Catalytic Converters);
14.4.2 the date of payment of the PGM Price by FJC; or
14.4.3 the date of delivery and transfer of the Catalytic Converters to FJC (where You are receiving and FJC are providing the Toll Processing Service),
You will have full and unrestricted rights to transfer all such items to FJC.
14.5 You will notify FJC in writing as soon as You become aware of any health and safety hazards or quality standards issues which arise in relation to the Catalytic Converters.
14.6 You warrant that You have the power and authority to execute and deliver this Agreement and to perform Your obligations hereunder.
14.7 You shall:
14.7.1 co-operate with FJC in all matters relating to the Agreement;
14.7.2 provide such information and materials as FJC may reasonably request under the Agreement; and
14.7.3 provide FJC the details of the Metal Account as soon as possible after commencement of the Toll Processing Service, if the Metal Account is not provided in the Cover Sheet.
15. CHARGES
15.1 If You are selling and FJC are purchasing the Catalytic Converters, FJC shall pay the FJC Price to purchase the Catalytic Converters.
15.2 If the Booking Price applies to the Catalytic Converters and FJC, acting reasonably, finds that the Catalytic Converters which it Accepts differ materially to those converters described in Your booking through the Online Portal, FJC reserves the right to pay the Spot Price for the Catalytic Converters instead. FJC shall determine the Spot Price at the point of regrading/valuing the Catalytic Converters in their entirety. FJC shall have no liability to You for any difference in the Booking Price and Spot Price.
15.3 You expressly acknowledge that the Spot Price is based on an underlying market rate which may fluctuate on a daily basis in line with market changes. FJC shall have no liability to You in the event that the Spot Price is different to the Booking Price which You may had obtained had You booked the sale of the Catalytic Converters through the Online Portal.
15.4 The FJC Price for the Catalytic Converters shall be inclusive of the costs of packaging and carriage of the Catalytic Converters (including without limitation any import duties or levies incurred by You), unless otherwise agreed in writing by FJC. No extra charges shall be effective unless agreed in writing and signed by FJC.
15.5 Where FJC has agreed to pay You the FJC Price or PGM Price in advance (in whole or in part), the Financing/Leasing Rate shall be applied to the amount which FJC has paid to You in advance to calculate the interest which You owe to FJC in exchange for FJC paying You the FJC Price or PGM Price (in whole or in part, as applicable) in advance. You shall pay the interest owed to FJC, calculated under this clause, in accordance with clause 17.
16. FJC PAYMENT TERMS
16.1 FJC shall pay:
16.1.1 the FJC Price where FJC are purchasing the Catalytic Converters from You and You shall invoice FJC on or at any time after completion of delivery;
16.1.2 the PGM Price where FJC are purchasing the PGM Content from You and, unless otherwise specified by FJC at its sole discretion, You shall invoice FJC for such amount within 30 days from determination of the PGM Price.
16.2 Each invoice provided by You shall include such supporting information required by FJC to verify the accuracy of the invoice, including but not limited to the relevant Quotation Number.
16.3 Where agreed with FJC in writing, You may provide FJC with an interim invoice for a proportion of the FJC Price or PGM Price on delivery by You of the Catalytic Converters to FJC or on FJC's collection of the Catalytic Converters from You.
16.4 Once FJC has purchased the Catalytic Converters, FJC shall be free to process the Catalytic Converters to extract the PGM content. You expressly acknowledge that FJC shall have full title to the PGM content in the Catalytic Converters and expressly waive any rights which you may have (express or implied) in such PGM content.
16.5 After FJC pays the PGM Price, You acknowledge that FJC, at its sole discretion, may mix the Catalytic Converters with catalytic converters provided by other third parties.
16.6 If FJC pays Your invoice in advance of the Catalytic Converters being sent to, processed and refined by FJC's third party refiner and the final level of the PGM content is less than that on which the PGM Price is based, a pro rata adjustment shall be made and FJC shall:
16.6.1 invoice you accordingly and You shall pay such invoice within 30 days of the date of the invoice, in full and cleared funds to a bank account nominated in writing by FJC and time for payment shall be of the essence of the Agreement; or
16.6.2 Where You have placed a further Order with FJC, offset the amount against the any future Order.
16.7 To the extent money is owed to FJC under clause 16.5, such money must be paid to FJC before FJC makes any further payments to You under this Agreement.
16.8 FJC shall pay Your undisputed invoiced amounts within 30 days of receipt of a correctly rendered invoice.
16.9 All amounts payable by FJC under the Agreement are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by You to FJC, FJC shall, on receipt of a valid VAT invoice, pay You such additional amounts in respect of VAT as are chargeable on the supply of the Catalytic Converters at the same time as payment is due for the supply of the Catalytic Converters.
16.10 If FJC fails to pay any amount properly due and payable by it under the Agreement, You shall have the right to charge interest on the overdue amount at the rate of 2 per cent per annum above the base rate for the time being of the Bank of England accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment. This clause shall not apply to payments that FJC disputes in good faith.
16.11 FJC may, without limiting its other rights or remedies, set off any amount owing to it by You (whether under the Agreement or otherwise) against any amount payable by FJC to You under the Agreement.
17. YOUR CHARGES AND PAYMENT
17.1 You shall pay:
17.1.1 any amount due under clause 15.5;
17.1.2 Your Price where You are receiving and FJC are providing the Toll Refining Service; and
17.1.3 Your Price where You are receiving and FJC are providing the Toll Processing Services.
17.2 Your Price shall be based on the PGM content identified during the Toll Refining Service in the manner described at clause 7.
17.3 FJC shall invoice You Your Price on determination of the results under clause 7.
17.4 You shall pay each invoice within 30 days of the date of the invoice or by the Settlement Date (whichever the earlier), in full and cleared funds to a bank account nominated in writing by FJC and time for payment shall be of the essence of the Agreement.
17.5 All amounts payable by You under the Agreement are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by FJC to You, You shall, on receipt of a valid VAT invoice, pay FJC such additional amounts in respect of VAT as are chargeable on the Toll Refining Service and Toll Processing Service at the same time as payment is due for the supply of the Toll Refining Service and Toll Processing Service.
17.6 All amounts due under the Agreement by You shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as may be required by law).
17.7 FJC shall have a lien over the Catalytic Converters entitling it to retain the Catalytic Converters as security for payment of all sums due to it from You if You fail to pay the amounts due in accordance with clause 17.4. Where FJC exercises this lien, it shall be entitled to use the PGM content of the Catalytic Converters to cover the payment of all sums due to it from You and You expressly acknowledge that FJC shall have full title to the PGM content in the Catalytic Converters and expressly waive any rights which you may have (express or implied) in such PGM content. To the extent that there are any proceeds remaining, FJC will assign the proceeds to the Metal Account.
18. INDEMNITY
18.1 You shall keep FJC indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by FJC as a result of or in connection with:
18.1.1 any claim made against FJC by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Catalytic Converters;
18.1.2 any claim made against FJC by a third party arising out of, or in connection with, the supply of the Catalytic Converters, and/or
18.1.3 any claim made against FJC for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Catalytic Converters.
18.2 For the duration of the Agreement and for a period of 5 years thereafter, You shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Agreement and shall, on FJC’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
18.3 This clause 18 shall survive termination of the Agreement.
19. LIABILITY
19.1 Nothing in this Agreement shall limit or exclude the liability of either party for:
19.1.1 death or personal injury resulting from its negligence or the negligence of its employees, agents or subcontractors;
19.1.2 fraud or fraudulent misrepresentation;
19.1.3 breach of the terms implied by section 12 Sale of Goods Act 1979;
19.1.4 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law;
19.1.5 the indemnities set out at clause 18 or
19.1.6 the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.
19.2 Without prejudice to clause 19.1, neither party shall be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: loss of goodwill; loss of business; loss of business opportunity; loss of anticipated saving; or special, indirect or consequential damage or loss suffered by the other party that arises under or in connection with this Agreement.
19.3 FJC shall not be liable to You, but You shall be liable to FJC for loss of profit.
19.4 Without prejudice to clauses 19.1, 19.2 and 19.3, FJC's total liability arising under or in connection with this Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to:
19.4.1 the FJC Price paid by FJC, where FJC are purchasing the Catalytic Converters; or
19.4.2 Your Price, where You are receiving and FJC are providing the Toll Refining Service; or
19.4.3 Your Price, where You are receiving and FJC are providing the Toll Processing Service.
19.5 Save for any representations and warranties set out in this Agreement, all other representations or warranties, whether express or implied, are, to the fullest extent permitted by law, excluded from this Agreement.
20. CONFIDENTIALITY
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. All information disclosed to the Receiving Party under or in connection with any matter governed by the Conditions shall be deemed to be confidential to the Disclosing Party unless the Receiving Party can establish otherwise. The Receiving Party shall keep the Disclosing Party’s information safe and secure and shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 20 shall survive termination of the Agreement.
21. TERMINATION
21.1 Without limiting its other rights or remedies, FJC may terminate the Agreement by giving at least seven days' written notice to You. FJC cannot terminate the Agreement under this clause after Acceptance.
21.2 Without limiting its other rights or remedies, FJC may terminate the Agreement with immediate effect by giving You written notice if You fail to pay any amount due under the Agreement on the due date for payment.
21.3 On termination of this Agreement, You shall immediately pay to FJC all of FJC's outstanding unpaid invoices and interest and, in respect of any Toll Refining Service or Toll Processing Service supplied but for which no invoice has been submitted, FJC shall submit an invoice which shall be payable by You immediately on receipt.
21.4 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
21.5 On termination of this Agreement, the following clauses shall survive and continue in full force and effect 1 (Interpretation), 18 (Indemnity), 19 (Liability), 20 (Confidentiality), 21 (Termination) and 22 (General), as well as any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement.
22. GENERAL
22.1 You shall comply with all applicable laws, statutes, regulations, and codes, including those relating to anti-bribery and anti-corruption such as the Bribery Act 2010.
22.2 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be sent by email using the contact details in the Cover Sheet. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22.3 You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of Your rights and obligations under this Agreement without the prior written consent of FJC.
22.4 FJC may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
22.5 Failure or delay in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any right under the Agreement. A waiver of any right under the Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.
22.6 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
22.7 If a court or any other competent authority finds that any provision (or part of any provision) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
22.8 If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
22.9 Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
22.10 A person who is not a party to the Agreement shall not have any rights under or in connection with it.
22.11 Any variation, including any additional terms and conditions, to the Agreement shall only be binding when agreed in writing and signed by FJC.
22.12 This Agreement constitutes the entire agreement between You and FJC and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between You and FJC, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
22.13 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
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