1. Scope and Application
1.1 These Terms and Conditions (“T&Cs”) apply to and form an integral part of all offers, quotations, purchase orders, sales orders, confirmations, contracts, invoices, and any other agreements (collectively “Contracts”) for the sale or purchase of goods (“Materials”) by ASZ Company FZCO (“ASZ”), whether ASZ is the seller or the buyer.
1.2 These T&Cs shall prevail over any contrary or additional terms proposed by the counterparty, whether in their general terms and conditions or otherwise, unless expressly accepted in writing by ASZ.
1.3 A reference to these T&Cs in any quotation, offer, sales order, purchase order, invoice, or other contractual document issued by ASZ is sufficient to incorporate them into the Contract in full.
1.4 These T&Cs apply to both transactions where ASZ is the seller and where ASZ is the buyer, unless otherwise expressly agreed in writing.
1.5 Any deviation from these T&Cs must be agreed in writing by an authorised signatory of ASZ. No verbal statements, informal agreements, or conduct shall amend or waive these T&Cs.
2. Contract Formation
2.1 A Contract shall be formed only when ASZ issues a written order confirmation, pro forma invoice, or other written acceptance of the counterparty’s order.
2.2 Any quotations, offers, or price indications issued by ASZ are non-binding and subject to change until confirmed in writing by ASZ.
2.3 No order placed by the counterparty shall be deemed accepted until confirmed in writing by ASZ.
2.4 ASZ’s confirmation shall incorporate these T&Cs in full, and any terms proposed by the counterparty that conflict with or supplement these T&Cs shall be void unless expressly accepted in writing by an authorised signatory of ASZ.
2.5 ASZ may revoke or amend any offer prior to acceptance without liability.
2.6 If no validity period is stated in the offer, the price shall be subject to reconfirmation by ASZ prior to acceptance.
3. Price and Payment
3.1 The price of the Materials shall be as stated in the Contract. Unless otherwise agreed in writing, prices are:
(a) exclusive of VAT, duties, taxes, customs charges, and other governmental levies, all of which shall be for the counterparty’s account; and
(b) based on the agreed delivery term as defined by the latest Incoterms.
3.2 All payments shall be made in full, without set-off, deduction, counterclaim, or withholding of any kind, in the currency stated in the Contract, to the bank account specified by ASZ.
3.3 Payment shall be deemed received only when cleared funds are credited to ASZ’s nominated bank account.
3.4 Unless otherwise agreed in writing, payment terms are three (3) days from the date of invoice.
3.5 If payment is not received by the due date, ASZ shall be entitled, without prejudice to any other rights, to:
(a) suspend further deliveries under any Contract until payment is made in full;
(b) charge interest on overdue amounts at the rate of 1% per month (or the maximum permitted by law, if lower), calculated daily from the due date until payment in full, with such interest to accrue and compound monthly;
(c) recover from the counterparty all costs of collection, including legal fees and debt recovery charges; and
(d) declare all outstanding amounts under any Contract immediately due and payable.
3.6 If any change occurs in applicable taxes, duties, or other governmental charges between the date of the Contract and the delivery date, the price shall be adjusted accordingly.
3.7 Suspension of Quotation / Market Disruption – If the reference price, index, or quotation specified in the Contract is suspended, discontinued, unavailable, or in ASZ’s reasonable opinion fails to reflect prevailing market conditions, then:
(a) ASZ may determine an alternative pricing source that most closely reflects the original quotation, having regard to relevant market practices; or
(b) if no such source is available, the price shall be determined in good faith by ASZ based on prevailing market value at the time of shipment or delivery, taking into account prices for comparable materials, freight, premiums/discounts, and other relevant factors.
The parties agree that ASZ’s determination under this Clause shall be final and binding, absent manifest error.
3.8 No Set-Off – The counterparty shall pay all amounts due to ASZ in full without any deduction, set-off, counterclaim, or withholding of any kind, whether in respect of any alleged claim, cross-claim, right of retention, or otherwise, and whether arising under the Contract or otherwise. Any breach of this obligation shall constitute an event of default under Clause 9.
4. Delivery and Risk
4.1 Delivery shall be made in accordance with the delivery term stated in the Contract, which shall be interpreted in accordance with the latest version of Incoterms published by the International Chamber of Commerce, unless otherwise agreed in writing.
4.2 Any delivery dates or schedules provided by ASZ are estimates only. Time for delivery shall not be of the essence unless expressly agreed in writing by ASZ.
4.3 ASZ shall not be liable for any delay in delivery caused by:
(a) events beyond its reasonable control, including Force Majeure as defined in Clause 7;
(b) delays caused by the counterparty’s failure to provide necessary information, instructions, permits, or approvals; or
(c) the counterparty’s failure to make payment when due.
4.4 Partial deliveries are permitted and may be invoiced separately. Each delivery shall be treated as a separate contract, and failure to make one delivery shall not affect other deliveries under the same or other contracts.
4.5 Risk of loss or damage to the Materials shall pass to the counterparty in accordance with the agreed delivery term under Incoterms, notwithstanding the retention of title provisions in Clause 5.
4.6 If the counterparty fails to take delivery on the agreed date:
(a) risk shall pass to the counterparty on the agreed date;
(b) ASZ may store the Materials at the counterparty’s cost and risk; and
(c) the counterparty shall reimburse ASZ for all costs of storage, handling, insurance, and any additional transport.
5. Retention of Title
5.1 Title to the Materials shall remain with ASZ until the earliest of:
(a) ASZ’s receipt in full (in cleared funds) of all amounts owed by the counterparty to ASZ under the Contract and any other contract between ASZ and the counterparty, whether or not such amounts are then due; or
(b) the physical release of the Materials to the counterparty or its agent at the agreed delivery point.
5.2 Risk of loss or damage to the Materials shall pass to the counterparty in accordance with the agreed Incoterms, but such transfer of risk shall not affect the retention of title provisions in this Clause.
5.3 Until title passes to the counterparty, the counterparty shall:
(a) store the Materials separately from other goods and clearly identify them as the property of ASZ;
(b) maintain the Materials in good condition and insure them for their full replacement value against all usual risks, with ASZ’s interest noted on the policy; and
(c) not pledge, encumber, sell, or otherwise dispose of the Materials except in the ordinary course of business as fiduciary agent for ASZ.
5.4 If the counterparty processes, transforms, incorporates, or consumes the Materials before payment in full, such action shall not extinguish ASZ’s ownership rights. Title shall extend to the new products and/or proceeds of sale, which the counterparty shall hold on trust for ASZ, and any such proceeds shall be kept in a separate bank account for ASZ’s benefit.
5.5 ASZ may, at any time and without prejudice to any other rights, require the counterparty to deliver up the Materials (or any products incorporating them) and/or enter the counterparty’s premises to recover them at the counterparty’s expense if:
(a) payment is overdue;
(b) the counterparty becomes insolvent, enters into liquidation, or suffers any similar event; or
(c) ASZ reasonably believes that payment is at risk.
5.6 The counterparty’s rights to possess and deal in the Materials shall cease immediately upon the occurrence of any event listed in Clause 5.5.
6. Weight, Quality and Claims
6.1 The weight stated on the shipping documents issued or certified by the loading port, weighbridge, or warehouse shall be final and binding unless a claim is lodged in accordance with Clause 6.3.
6.2 Quality shall be determined in accordance with the Certificate of Analysis (“COA”) issued by the producer or an independent, internationally recognised laboratory agreed between the parties. Where ASZ provides a producer’s COA, such COA shall be deemed conclusive and binding unless a claim is made in accordance with Clause 6.3.
6.3 The counterparty shall have the right to lodge:
(a) a weight claim within ten (10) calendar days of release of the Materials; and
(b) a quality claim within twenty (20) calendar days of release of the Materials.
6.4 All claims must be made in writing and must specify the exact nature of the discrepancy, supported by appropriate documentation.
6.5 Any claim in respect of quality or weight shall be subject to joint inspection, sampling, and assaying in accordance with MMTA guidelines, to be performed by a mutually acceptable, internationally recognised independent surveyor or laboratory. The findings shall be final and binding. The costs of such procedure shall be borne by the losing party.
6.6 Materials subject to a claim must be kept intact, unused, and stored under cover until inspection and sampling are completed. Any consumption or alteration of the Materials prior to inspection will invalidate the claim.
6.7 Non-Conforming or Unspecified Standard Materials– Where ASZ supplies Materials that do not conform to MMTA specifications or other widely recognised industry standards, or where the Contract does not specify a recognised quality standard, such Materials are sold strictly on an “as is” basis, with all faults, and without any representation, warranty, condition or guarantee of any kind, whether express or implied. No quality claims will be accepted under any circumstances, and the counterparty irrevocably agrees that the sale is final, binding, and not subject to reversal, rejection, offset, or reduction of the purchase price.
7. Force Majeure
7.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract (other than payment obligations) if such failure or delay is caused by an event or circumstance beyond its reasonable control (“Force Majeure Event”).
7.2 Force Majeure Events include, but are not limited to:
(a) acts of God, natural disasters, extreme weather, earthquakes, floods, droughts, epidemics, pandemics;
(b) war, armed conflict, terrorism, civil commotion, riots, embargoes, or sanctions;
(c) strikes, lockouts, industrial disputes (whether involving the workforce of a party or any other party);
(d) accidents, fires, explosions, breakdowns of plant, equipment, or transportation;
(e) shortages or failures of supply of raw materials, utilities, or transportation; and
(f) any change in laws, regulations, or governmental orders preventing performance.
7.3 For the avoidance of doubt, commodity market price changes, fluctuations in exchange rates, or other market volatility shall not constitute a Force Majeure Event.
7.4 The party affected shall:
(a) promptly notify the other party in writing of the Force Majeure Event and its expected duration; and
(b) use reasonable efforts to mitigate the effects of the event.
7.5 Performance of the affected obligations shall be suspended for the duration of the Force Majeure Event and the time for performance shall be extended accordingly.
7.6 If the Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate the Contract without liability, except that the counterparty shall remain liable to pay for any Materials already delivered.
8. Adverse Change
8.1 If, in ASZ’s reasonable opinion, there is a material adverse change in the counterparty’s financial condition, creditworthiness, ability to perform its obligations, or in relevant market conditions, ASZ may, without prejudice to any other rights, immediately:
(a) suspend performance of the Contract;
(b) demand immediate payment of all amounts owed;
(c) require prepayment, cash on delivery, or the provision of security satisfactory to ASZ; and/or
(d) terminate the Contract in whole or in part.
8.2 Failure of the counterparty to comply with any demand made under this Clause shall constitute an event of default under Clause 9 (Default, Price Volatility & Remedies).
9. Default, Price Volatility & Remedies
9.1 Events of Default – The counterparty shall be deemed in default if it:
(a) fails to make payment in accordance with Clause 3;
(b) fails to take delivery, or deliver (if ASZ is the buyer), in accordance with the Contract;
(c) breaches any other material term of the Contract;
(d) becomes insolvent, bankrupt, enters into liquidation, or has a receiver, administrator, or similar officer appointed over its assets; or
(e) indicates, whether verbally or in writing, an intention not to perform, or is otherwise unable to perform its contractual obligations.
9.2 ASZ Remedies – Upon any default by the counterparty, ASZ may, without prejudice to any other rights, at its sole discretion:
(a) terminate the Contract in whole or in part;
(b) suspend further performance under any Contract;
(c) resell or purchase equivalent goods in the open market (or close out any hedges or forward contracts entered into in connection with the Contract) and recover from the counterparty all losses, damages, costs, and expenses arising therefrom, including losses due to adverse price movements;
(d) recover from the counterparty all costs of storage, handling, transport, insurance, and other expenses reasonably incurred as a result of the default; and
(e) enforce ASZ’s retention of title rights under Clause 5 and repossess the Materials without prior notice.
9.3 Price Volatility Protection – If the Contract is terminated or the counterparty defaults while ASZ holds or has committed to purchase the Materials, the counterparty shall be liable for:
(a) the difference between the Contract price and the price at which ASZ is able to resell or purchase replacement goods in the market;
(b) any loss arising from the close-out or early termination of any related hedge, futures, or forward contract; and
(c) any other consequential losses directly arising from market price changes due to the counterparty’s default.
9.4 Mitigation – ASZ shall act in good faith to mitigate losses but shall have sole discretion in selecting the method, timing, and manner of any resale, repurchase, or hedge close-out. The counterparty shall have no right to challenge ASZ’s determination of such losses.
9.5 All amounts payable under this Clause 9 shall be payable immediately upon demand and shall bear interest in accordance with Clause 3.5 from the date incurred until paid in full.
10. Limitation of Liability
10.1 To the fullest extent permitted by law, ASZ shall not be liable to the counterparty for any indirect, incidental, special, punitive, exemplary, or consequential loss or damage, including but not limited to loss of profit, loss of revenue, loss of anticipated savings, loss of use, loss of production, or loss of business opportunity, whether arising in contract, tort (including negligence), or otherwise, even if advised of the possibility of such loss.
10.2 ASZ’s total aggregate liability to the counterparty under any Contract, whether arising in contract, tort (including negligence), strict liability, statute, or otherwise, shall in no event exceed the Contract price for the specific shipment of Materials giving rise to the claim.
10.3 The counterparty shall not be entitled to withhold, defer, set off, or deduct any amounts from sums due to ASZ in respect of any alleged claim, and any breach of this obligation shall constitute a material default under Clause 9.
10.4 ASZ shall not be liable for any defect, shortfall, or non-conformity in the Materials arising from:
(a) normal wear and tear;
(b) misuse, mishandling, improper storage, or failure to follow ASZ’s or the manufacturer’s instructions;
(c) processing, alteration, or resale of the Materials after delivery; or
(d) specifications, instructions, or materials provided by the counterparty.
10.5 Nothing in this Clause shall exclude or limit liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited under applicable law.
10.6 Any claim against ASZ, whether in contract, tort, statute, or otherwise, must be notified in writing within six (6) months of the date on which the cause of action arose and in any event prior to resale, consumption, or processing of the Materials, failing which the claim shall be deemed irrevocably waived.
11. Governing Law & Dispute Resolution
11.1 This Contract, and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of laws principles.
11.2 Default Arbitration Forum – MMTA
Unless otherwise specified in the Contract, any dispute, controversy, or claim arising out of or relating to this Contract, including its validity, interpretation, breach, or termination, shall be resolved by arbitration in accordance with the Arbitration Rules of the Minor Metals Trade Association (MMTA), as in force on the date of commencement of the arbitration, which rules are deemed incorporated by reference into this clause.
(a) The seat (legal place) of arbitration shall be England, and the arbitration shall be conducted in the English language.
(b) Unless otherwise agreed in writing, the arbitration shall be conducted:
(i) under the Short-Form Arbitration Rules where the total value of the claim does not exceed USD 250,000 (or such other limit as in force in the MMTA Rules at the time of the dispute); and
(ii) under the Long-Form Arbitration Rules where the total value of the claim exceeds that limit or the dispute is otherwise complex, in which case the tribunal shall consist of one arbitrator unless the parties agree to three.
11.3 Option for LCIA Arbitration
For disputes exceeding USD 5,000,000, or where either party reasonably considers the matter to be complex or multi-jurisdictional, ASZ may, at its sole discretion, require the dispute to be referred instead to arbitration under the Rules of the London Court of International Arbitration (LCIA).
(a) The LCIA Rules are deemed incorporated by reference into this clause.
(b) The seat (legal place) of arbitration shall be London, England, and the language of the arbitration shall be English.
(c) The tribunal shall consist of one arbitrator unless the parties agree to three.
11.4 The decision and award of the arbitrator(s) in either forum shall be final and binding on the parties, and judgment on the award may be entered and enforced in any court of competent jurisdiction.
11.5 Notwithstanding Clauses 11.2 and 11.3, ASZ may, at its sole discretion, bring proceedings for payment or recovery of amounts owed in any court of competent jurisdiction, including the courts where the counterparty is incorporated, carries on business, or has assets.
11.6 The losing party in any dispute shall pay all reasonable legal, arbitration, and enforcement costs of the prevailing party.
12. Notices & Communications
12.1 Any notice or other communication given under or in connection with the Contract shall be in writing and in English.
12.2 Notices shall be deemed validly given if delivered by:
(a) hand,
(b) courier,
(c) registered or recorded delivery post, or
(d) email (with delivery/read receipt or confirmation from the receiving server),
to the address or email address stated in the Contract or such other address as may be notified in writing.
12.3 Notices shall be deemed to have been received:
(a) if delivered by hand or courier, at the time of delivery;
(b) if sent by registered or recorded delivery post, on the second business day after posting; and
(c) if sent by email, at the time of transmission, provided no error or “non-delivery” message is received.
12.4 For the purposes of this Clause, “business day” means a day other than a Saturday, Sunday, or public holiday in the place of receipt.
12.5 The counterparty shall ensure that ASZ is kept informed at all times of its current contact details, including a valid email address for contractual correspondence.
13. Miscellaneous / General Provisions
13.1 Assignment – The counterparty shall not assign, transfer, charge, or otherwise dispose of any of its rights or obligations under the Contract without the prior written consent of ASZ. ASZ may assign or subcontract any of its rights or obligations at its discretion.
13.2 Waiver – No failure or delay by ASZ in exercising any right, power, or remedy shall operate as a waiver of it, nor shall any single or partial exercise preclude any further exercise of that or any other right, power, or remedy.
13.3 Severability – If any provision of the Contract is or becomes invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. The parties shall negotiate in good faith to replace the invalid or unenforceable provision with a valid provision that most closely reflects the original intent and economic effect.
13.4 Entire Agreement – The Contract (including these T&Cs) constitutes the entire agreement between the parties and supersedes any prior understandings, agreements, negotiations, or communications, whether written or oral, relating to its subject matter. Each party acknowledges that it has not relied on any statement, representation, assurance, or warranty other than as expressly set out in the Contract.
13.5 Amendments – No amendment or variation to the Contract shall be binding unless made in writing and signed by duly authorised representatives of both parties.
13.6 Third Party Rights – A person who is not a party to the Contract shall have no rights to enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
13.7 Counterparts – The Contract may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
14. Confidentiality
14.1 The counterparty shall keep strictly confidential and shall not disclose to any third party, without ASZ’s prior written consent, any information relating to:
(a) the Contract and its terms, including pricing, quantities, specifications, and payment terms;
(b) the Materials; or
(c) ASZ’s business affairs, operations, or customers.
14.2 This obligation does not apply to information that:
(a) is or becomes public knowledge through no fault of the counterparty;
(b) is lawfully obtained from a third party without breach of confidentiality; or
(c) is required to be disclosed by law, regulation, or a competent authority, provided that the counterparty (where legally permitted) promptly notifies ASZ of such requirement before disclosure.
14.3 The confidentiality obligations under this Clause shall survive termination or completion of the Contract for a period of five (5) years.