Refining Terms and Conditions

These terms and conditions (these “Refining Terms”) and applicable online rates, ARGEN’S GENERAL TERMS AND CONDITIONS, ARGEN’S RETURN AND REFUND POLICY, THE ARGEN SCRAP REFINING SETTLEMENT RECORD, and any other written document provided by The Argen Corporation (“Argen”) setting forth the scope of refining to be conducted constitute the entire agreement (collectively, the “Agreement”) between Argen and the customer (“Customer”) (Argen and Customer may hereinafter be referred to individually as “Party” or collectively as “Parties”), and shall apply to all Material Types listed in Paragraph 5 below received by Argen from the Customer for purposes of assay and refining (“Material”). No modifications or additional terms or conditions shall apply unless they are in writing and signed by both Parties. Should any conflict arise between these Refining Terms and Argen’s General Terms and Conditions, ARGEN’S GENERAL TERMS AND CONDITIONS SHALL PREVAIL.

1. TITLE TO MATERIAL. Title to the Material shall pass to and vest in Argen at the time that the Customer accepts the Settlement Amount and/or payment is sent from Argen to the Customer.
2. CUSTOMER REPRESENTATIONS AND WARRANTIES. Customer warrants (a) that it owns all right, title, and interest in and to the Material free and clear of all liens and third party claims; (b) that the Material is not “hazardous waste,” as defined by state and federal law, and does not contain hazardous, toxic, carcinogenic, or other deleterious materials under the Occupational Safety and Health Act (“OSHA”) or other applicable laws; and (c) the shipping package(s) containing the Material are properly sealed. ARGEN DOES NOT ASSUME ANY RESPONSIBILITY FOR UNSEALED SHIPMENTS.
3. INDEMNIFICATION. Customer shall indemnify, defend and hold Argen harmless from any and all claims, suits, penalties, fines, losses, liabilities, damages and judgments in connection with the Material or any breach of the representations and warranties of this Agreement, and any claim by third parties involving any right, title or interest in or to the Material, including the costs of suit and reasonable attorneys’ fees and expenses.
4. SHIPPING & INSURANCE. Argen will be responsible for the transportation charge and insurance of the shipping package(s) containing the Material only under the following conditions: (a) the carrier is Federal Express (“FedEx”) and Argen’s FedEx account is used; (b) Argen is the recipient; (c) Customer has retained a copy of the FedEx Shipper Receipt Number; (d) Customer has retained a copy of the Scrap Material Return Form with the Material Type(s) fields completed; and (e) the shipping package(s) containing the Material has been entered into the FedEx computer system by a FedEx employee. The value of the insurance will be determined by multiplying the weight of each Material Type by the average value of similar material type paid out within the last thirty (30) days of the date of shipment.
5. MATERIAL TYPES. Argen reserves the right to combine the following Materials (collectively, the “Material Types”) received per shipment, unless otherwise specified in writing by the Customer:
   1. Dental Lab Material received from dental laboratories, including dental ingots, buttons, solder, wire, shot, flash, sprues, gold foil, mixed platinum foil, mixed palladium foil, grindings, dust, paper vacuum bags (bags that contain aluminum oxide), remakes of dental crowns, bridges, and partials;
   2. Dental Foils, including clean palladium foil and clean platinum foil;
   3. Dental Lab Sweeps, including fiber vacuum bags, clothes, rags, carpets (rubber-backed carpets will require extra processing time), metal vacuum filters, dental aluminum oxide;
   4. Dental Ware, including extracted crowns, bridges, partials specifically received from dental practices;
   5. Jewelry, including rings, necklaces, bracelets, charms, watches, etc.; *
   6. *Unless otherwise specified, jewelry will be combined with other material types received. If customer specifies to process jewelry separately, a minimum fee will be applied
   7. Silver Material, including silver jewelry, cutlery, silver plated material, etc.;
   8. Dental Aluminum Oxide, including aluminum oxide material received from dental laboratories;
   9. Coins, including gold, platinum, palladium, and silver coins; and
   10. Other material not defined by above Material Types.
6. RIGHT TO REJECT MATERIAL. Argen reserves the right to reject some or all Material received from Customer for any reason whatsoever, including, without limitation, if Argen deems the Material to be dangerous, magnetic, or of insufficient value to warrant acceptance.
7. RECEIVED WEIGHT. Received Weight is the weight of the material to be assayed after removal of containers, bags, and any other packaging.
8. PROCESSED WEIGHT. The Processed Weight is the remaining metal content of the Material after incinerating to burn away non-metal components.
9. ASSAY PERCENTAGE. The Assay Percentage of the Material is the percentage of each precious metal found to be contained in the Processed Weight.
10. ACCOUNTABILITY RATE. The applicable Accountability Rate for the Material will be published on your account. The then-current Accountability Rates may be found by logging in to your account at www.argen.com/refining/rates or can be obtained by calling Argen at 800-255-5524.
11. PAYABLE QUANTITY. The Payable Quantity of the Material is the Processed Weight (in DW) multiplied by the Assay Percentage, multiplied by the Accountability Rate for each of gold, platinum, palladium and silver. Argen will not pay for any other metals contained in the Material.
12. PRECIOUS METAL VALUE. The Precious Metal Value for gold, platinum, and palladium shall be determined by multiplying the Payable Quantity for these metals by the second London Fix for these metals on the Pricing Date, and the Precious Metal Value for silver shall be determined by multiplying the Payable Quantity of the silver by the London Fix for silver on the Pricing Date.
13. REFINING PROCESS FEE. For all Material Types received, Argen shall charge a fee for processing the Materials (such fee, the “Refining Process Fee”). The applicable Refining Process Fee shall be the rate published on Customer’s account multiplied by the subtotal of Precious Metal Value. Argen reserves the right to charge a minimum Refining Process Fee of $75.00 per lot. Any materials with a Precious Metal Value Subtotal of less than $75.00 will be negated by the Refining Process Fee and no payment shall be due to the Customer. The applicable Refining Process fee can be located at www.argen.com/refining/rates or can be obtained by calling Argen at 800-255-5524.
14. TREATMENT FEES (all prices in USD). Additional fees (“Treatment Fees”) will be applied to the following Material Types:
    1. Dental Lab Sweeps, except for carpets, will incur a Treatment Fee of $0.25 per avdp. ounce of the gross Received Weight;
    2. Dental Aluminum Oxide and carpets will incur a Treatment Fee of $10.00 per pound of the gross Received Weight; and
    3. Other Materials may incur an additional Treatment Fee based on the type of Material received.
15. SETTLEMENT AMOUNT. The Settlement Amount is equal to the Precious Metal Value less the Refining Process Fee and any Treatment Fees.
16. SETTLEMENT DATE. Unless Argen notifies Customer otherwise, the Settlement Date for all Materials shall be after Argen determines the precious metal content.
17. PRICING DATE. Unless Argen notifies Customer otherwise, the Pricing Date for all Material shall be the Settlement Date.
18. PAYMENT OPTIONS. The Customer may select from the following forms of payment: (a) check; (b) ACH (electronic credit to bank account); (c) wire transfer; (d) coins (valued by applying Argen’s standard pricing for coins on the settlement date); (e) Dental or Jewelry Alloys (based upon Argen’s standard pricing for the specific alloy selected by Customer); or (f) credit to Customer’s account. Payment will be paid to Customer within five (5) business days of the Settlement Date. A service charge for wire transfers or overnight mailing of a check will be billable to Customer, and shall be automatically deducted from the payment made to Customer. Once customer selects a payment option, subsequent changes will be charged a $25.00 processing fee, which shall be automatically deducted from the payment made to Customer.
19. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ARGEN BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND. THE MAXIMUM LIABILITY OF ARGEN SHALL NOT BE IN EXCESS OF THE REFINING PROCESS FEE CHARGED BY ARGEN.
20. RIGHT OF SET-OFF. Argen shall have the right, at any time and without notice, to set off any liability or obligation of the Customer to Argen.
21. FORCE MAJEURE. If during the normal course of Argen’s operations, work on Customer’s Material is interrupted, hindered or delayed as a result of a force majeure, Argen shall have the right to postpone its performance under this Agreement for as long as such force majeure continues. Force majeure shall include, but is not limited to, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, pandemic, riot, lack of energy or raw materials, civil commotion, including acts of local government and federal authority, and labor disputes of whatever nature and for whatever cause arising. If the duration of the force majeure exceeds thirty (30) days, and the Parties cannot agree upon a new performance schedule, then either Party may cancel the contract upon written notice to the other Party.
22. SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable, in whole or in part, by any court of final jurisdiction, it is the intent of the Parties that all other provisions of this Agreement shall be construed to remain fully valid, enforceable and binding on the Parties in all respects as if such invalid or unenforceable provision were omitted. Any court of final jurisdiction will have the authority to modify or replace the invalid or unenforceable term or provision with a valid and enforceable term or provision that most accurately represents the intention of the Parties.
23. ENTIRE AGREEMENT, MODIFICATIONS AND WAIVER. This Agreement constitutes the entire agreement between the Parties with respect to such terms as are included herein and the Parties acknowledge that they have not agreed to this instrument in reliance on any promise or representation or warranty not contained herein. This Agreement supersedes and replaces all prior settlement negotiations and/or proposed settlements. This Agreement may not be contradicted by evidence of any prior or contemporaneous oral or written agreement. The Argen Refining Terms and Conditions and Argen General Terms and Conditions are available at www.argen.com, and it is the responsibility of the Customer to review for any changes or updates. No waiver of any provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. Argen may amend, modify or alter the terms of this Agreement upon at least thirty (30) days’ prior written notice to Customer.
24. AUTHORIZATION. Any Party agreeing to this Agreement on behalf of an entity or other than themselves, hereby represents and warrants that such Party has authority to sign on behalf of the indicated entity. The Parties hereto, and each of them, further represent and declare that they have carefully read this Agreement and know the contents thereof and that they sign the same freely and voluntarily.
25. APPLICABLE LAW; VENUE; ARBITRATION. For purposes of venue and jurisdiction, this Agreement shall be deemed made and to be performed in San Diego, California and shall be governed by the laws of the State of California. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in the City of San Diego, County of San Diego, State of California before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitrator shall award reasonable attorneys’ fees to the most prevailing Party in the arbitration. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
26. ASSIGNMENT. This Agreement may not be assigned by Customer, whether pursuant to a change of control, asset sale, by operation of law or otherwise, without the prior written consent of Argen, and any such attempted assignment shall be deemed null and void. Customer agrees to notify Argen immediately upon a change of control (through stock transfer or otherwise) or sale of all or substantially all of the assets of its business to which this Agreement relates. Customer acknowledges that notwithstanding any change of control or sale of Customer’s assets, Customer shall remain jointly and severally liable for any liabilities of Customer and/or its successor-in-interest. Argen may assign this Agreement and/or delegate its rights and obligations hereunder in whole or in part to one or more divisions, affiliates and/or third parties without notice to Customer. In such case, such divisions, affiliates and/or third parties shall have the right to enforce the provisions hereof as if they were a part of this Agreement. The Argen Corporation conducts its business, without limitation, under its corporate name, its wholly-owned subsidiary Argen Canada, LLC, and under the following DBAs: Jelenko, Leach & Dillon Dental Alloys, Aurium Research USA, Dent Gold, Wilkinson Dental Alloys, World Alloys, Gateway Alloys, and Dental Alloy Products.
27. NO THIRD-PARTY BENEFICIARIES. No provision of this Agreement is intended to or shall be construed to confer upon or give to any person other than Argen, its successor or assigns (if applicable), and Customer any rights, remedies or other benefits under or by reason thereof.
28. HEADINGS. The headings of these Refining Terms herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of these Refining Terms.