General terms and conditions of sale

1. Introduction
1.1. M&J Recycling and M&J USA Inc., (collectively “M&J”) agree to sell the products at the agreed prices conditioned upon the purchaser’s acceptance of these General Terms and Conditions of Sale. These General Terms and Conditions of Sale govern all sales including orders placed electronically. If a separate agreement is mutually agreed and executed, such agreement shall prevail over these sales terms. Any terms and conditions proposed by the purchaser shall be null and void.

2. Definitions
2.1. Product(s): Equipment, Spare Parts, Digital offerings or Services offered by M&J.

2.2. Equipment: Any complete machinery, e.g., shredder (Pre-, Mobile-, and/or Fine-shredder), conveyor belts, platforms, etc., available in the official M&J Price List.

2.3. Spare Parts: Any and all parts, e.g., Consumables, Spare Parts (Basic and Critical) and Wear Parts, used for the activities covered under these General Terms and Conditions of Sale.

2.4. Services: Any and all work, including Commissioning, Installation, Training, Supervision, Instruction undertaken to be performed by M&J for its customers under these General Terms and Conditions of Sale.

2.5. Installation: Full mechanical, hydraulic and electrical installation of the Products, according to the specifications in the drawings and documentation issued for the project. M&J checklists are mandatory for the documentation of the installation.

2.6. Commissioning: Final control and test of the Products, to ensure the installation has been performed according to M&J specifications, and that the Products are safe to use for the operators.

Furthermore, it is checked that the Products are delivered according to the agreed specifications.

If the Products are to be connected to external equipment, the signal exchange (I/O) is checked, after 3rd party has connected their equipment.

M&J checklists are mandatory for the documentation of the Commissioning.

2.7. Start-up: Cold Commissioning: Test the functionality of the Products without materials. M&J checklists are mandatory for the documentation of the start-up.

Hot Commissioning: Test the functionality of the Products with materials. M&J checklists are mandatory for the documentation of the start-up.

2.8. Instruction: In order to hand over responsibility, the end-user needs to be instructed in the basic functionality and safety features of the Products, as well as instruction on where to find further information in the operator’s manual supplied with the Products. (Instruction is typically 1 -2 hours with max. 4 participants.)

2.9. Training: Training includes comprehensive instruction on the functionality of the Products. The training can be for either the operators of the Products, the maintenance crew, or a combination of both. The training can be a combination of classroom training and practical training on the Products.

2.10. SAT: All M&J equipment are handed to the Customer by perform-ing a SAT.

The SAT includes a signoff that the start-up without waste was successful. If there is waste available at the time of the start-up this is also included in the start-up.

Secure all safety functions have been checked and approved.

Check that all trained personnel has signed “Authorization & Training” document as a documentation of who are author-ized to operate and/or maintain the equipment.

The SAT is finally signed by the M&J representative and the Customer.

The signed SAT provides the handover of the equipment and thereby can be taken into operational use.

3. Scope
3.1. The scope of the Products sold by M&J is exclusively described in M&J’s specification of Products attached or referred to in this sale and purchase of the Products.

3.2. Any change to scope is only valid with if expressly accepted in writing by M&J.

4. Price & Payment
4.1. Prices and payments are in US Dollars and do not include any sales, use, or excise taxes, customs duties or similar charges or fees. If not otherwise set forth in any relevant Order Confirmation, Prices do not include the services of any representative or partner of M&J including, but not limited to assistance in the installation, inspection, or start-up of the products. If shipment is delayed by Customer, the date shipment is ready shall be deemed to be the shipment date for payment purposes. If Customer fails to pay by the due date, M&J shall be entitled to interest at a rate of the lesser of 1,25% per month or the legal maximum.

4.2. All payments to be made by Buyer pursuant to this Agreement shall be made by Buyer from an account owned by Buyer held at an internationally recognized bank or equivalent financial institution. Should Buyer wish to use any other account or means of payment, such change must be approved by M&J prior to payment being issued.

5. Payment of Taxes, Duties and Tariffs
5.1. Where the Goods provided hereunder are sold according to incoterms other than DDP customer site, the Buyer shall be solely responsible for ensuring that all taxes and duties, including tariffs and other levies imposed on the Goods sold hereunder by the United States government, or any Agency with authority over such matters, have been paid in full. Where the Goods provided hereunder are sold according to incoterms DDP customer site, M&J shall be responsible for importing the goods from Denmark and will be responsible for ensuring that all taxes and duties, including tariffs and other levies imposed on the Goods sold hereunder by the United States government, or any Agency with authority over such matters, have been paid in full.

5.2. If the customer fails to pay the applicable taxes, duties, or tariffs imposed on the shipped goods and M&J pays the tariff in the customer’s stead to avoid a breach of its delivery obligations under the applicable sales agreement, the customer expressly acknowledges, understands, and agrees that any payment made by M&J of such taxes, duties, or tariffs imposed does not and shall not be deemed a waiver of the customer's obligation to pay such taxes, duties, and tariffs imposed on the goods by the applicable government authority. M&J shall send an invoice to the customer for any taxes, duties, or tariffs so paid, including any applicable reasonable administrative fee imposed by M&J for having to pay such taxes, duties, or tariffs in the customer's stead, and the customer shall reimburse M&J for such costs incurred within 8 days of invoicing. Additionally, in the event that a customer repeatedly fails to pay the applicable taxes, duties, or tariffs imposed on the goods, M&J reserves the right in its sole discretion to estimate the taxes, duties, or tariffs that will be imposed and charge the customer for such costs upfront, with any excess payment being refunded to the customer.

5.3. In case of incoterms DDP customer site, where M&J are responsible for paying the applicable taxes, duties and tariffs, and these differ from the estimated costs at the time of the Quote, M&J USA reserves the rights to invoice/credit in a separate statement to reflect actual costs.

6. Security Interest and Insurance
6.1. M&J retains and Buyer grants to M&J a security interest in the Product(s) and proceeds and any replacements thereof regardless of mode of attachment to realty or other property to secure payment of all amounts due to M&J. In the event of breach of Buyer’s payment obligations, Buyer consents to the entry of an ex parte writ of possession, of seizure permitting M&J to take possession of the Product(s) for which payment has not been made. Buyer agrees to do all acts necessary to perfect and maintain said security interest, and to protect M&J’s interest by adequately insuring the Product against loss or damage from an external cause with M&J named as insured or additionally insured.

7. Delivery and Passing of Risks
7.1. Any agreed trade term shall be construed in accordance with the INCOTERMS® in force at the formation of the order.

7.2. The risk of loss of or damage to the Product shall pass to the Customer in accordance with the agreed trade term.

7.3. If no trade term has been specifically agreed, delivery of the Product shall be FCA, Vejlevej 5, Horsens, Denmark. Any loss of or damage to the Product after the risk has passed to the Customer shall be at the risk of the Customer unless such loss or damage results from the M&J’s negligence.

8. Preparatory Work and Working Conditions
8.1. The Customer shall in good time undertake preparatory work to ensure that the conditions necessary for installation and operation of the Equipment. This shall not apply to preparatory work which according to the Order Confirmation shall be performed by M&J.

8.2. The preparatory work referred shall be carried out by the Customer in accordance with the drawings and information provided by M&J. In any case the Customer shall ensure that the foundations are structurally sound. If the Customer is responsible for transporting the Equipment to the Site, he shall ensure that the Equipment is on the Site before the agreed date for starting the installation work.

8.3. The Customer shall ensure that: M&J’s personnel are able to start work in accordance with the agreed time schedule and to work during normal working hours. Provided that the Customer has been given notice in writing within reasonable time, work may be performed outside normal working hours to the extent deemed necessary by M&J if:

a) the Customer has, within a reasonable time before installation is started, informed M&J in writing of all relevant safety regulations in force at the site. Installation shall not be carried out in unhealthy or dangerous surroundings. All the necessary safety and precautionary measures shall have been taken before installation is started and shall be maintained;

b) the Customer has made available to M&J free of charge at the proper time on the Site all necessary equipment, such as: cranes, lifting equipment and equipment for transport on the Site (including fuel, oils, grease and other materials, gas, water, electricity, steam, compressed air, heating, lighting, etc.). M&J shall specify in writing the requirements concerning such lifting equipment, and equipment for transport on the Site at the latest one month before the agreed date for starting the installation work.

8.4. Changes to time schedule, waiting time, failure to comply with the terms covered under this section, e.g., site conditions/access, etc., prolonging or delaying the duration or Services, or in any other way incurring extra costs to M&J, may result in additional invoicing for time needed for site specific safety training and induction. These costs will be invoiced according to M&J’s then current service rates.

9. Customer delay or change requests to scope and/or milestones.
9.1. Any change to milestone dates/ship dates defined in this quote requested by the Customer requires a written acceptance by M&J.

9.2. Any delay for which M&J is not responsible does not postpone the due date of any payments in accordance with the original payment plan. In case of delay for which M&J is not responsible M&J will provide a new timeline which shall be considered final.

9.3. M&J is entitled to a compensation amounting to 0,25% of the total contract for any delay of milestone date(s) for which M&J is not responsible. In addition, M&J is entitled to obtain damages to the extent M&J suffers a loss exceeding the compensation amounting to 0,25% of the contract value. This clause does not preclude M&J from exercising other remedies for breach of contract as a result of the delay.

9.4. If the Customer is not able to accept the Products on schedule, or if M&J Recycling is unable to deliver the Products at the delivery point because Customer has not prepared any relevant installation space or provided appropriate instructions, documents, licenses, or authorizations, risk of loss shall pass to Customer and the goods shall be deemed to have been delivered.

9.5. If Products are unable to be delivered due to Customer’s lack of site preparation, M&J shall be entitled to liquidated damages from the date on which delivery should have taken place. The liquidated damages shall be payable at a rate of 0.5 percent of the purchase price for each week of delay. Any related liquidated damages shall not exceed 7.5 percent of the purchase price, but in no event will exceed the legal maximum.

10. Storage cost in case of Customer’s delay
10.1. If the Customer is not able to accept the goods on schedule, M&J reserves the right to store the goods at the Customers expense and risk, and to charge the Customer for storage costs amounting to 0.25% of the contract value for each week commenced, unless the actual storage costs exceed this amount in which case M&J may charge the actual storage costs. The goods may be stored outdoors. M&J accepts no liability.

11. Variations
11.1. The Customer is entitled to request changes to the Equipment's scope, design, and construction (“Supply Variations”) so long as the manufacture and production of the Equipment has not commenced. M&J shall not be obliged to carry out any requested Supply Variation(s) until the Parties have agreed on how the variations will affect the Order Price, the time for taking-over, and other relevant terms of the Agreement.

11.2. Requests for variations shall be submitted to M&J in writing and shall contain an exact description of the variation. Any variation has to be confirmed by M&J issuing a revised Order Confirmation.

11.3. If Delivery is delayed as a result of disagreement between the Parties on the consequences of variations, the Customer shall pay any part of the Order Price which would have become due if taking-over had not been delayed.

12. Taking over.
12.1. When Installation has been completed Commissioning shall be carried out to determine whether the Equipment is as required for Commissioning according to the order. M&J shall notify the Customer in writing that the Equipment is ready for Commissioning. M&J shall in this notice give a date for the Commissioning, giving the Customer sufficient time to prepare for and be represented.

12.2. The Customer shall provide free of charge any power, lubricants, water, fuel, raw materials and other materials required for the Commissioning and for final adjustments in preparing for this. He shall also provide any labour or other assistance necessary for carrying out the Commissioning.

12.3. The Commissioning shall be carried out during normal working hours.

12.4. M&J shall prepare a report of the Commissioning in form of a Certificate of Acceptance (CoA). This CoA shall be signed by the Customer.

12.5. If the Commissioning demonstrates that the Equipment is not in accordance with the order, the deficiencies shall be listed in in the Certificate of Acceptance.

12.6. If the Customer fails to fulfil his obligations under this clause or otherwise prevents the Commissioning from being carried out, any addition costs related for additional visits and re- Commissioning shall be invoiced to the Customer. These costs will be invoiced according to M&J’s then current service rates.

13. Liability for Defects and Limitation of Liability
13.1. Customer shall inspect the goods within ten (10) days of receipt, including both physical goods and any Products delivered. Buyer will be deemed to have accepted the goods unless it notifies M&J in writing of any Nonconforming Goods and furnishes such written evidence or other documentation reasonably required by M&J. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; (ii) product’s label or packaging incorrectly identifies its contents; or (iii) product was improperly installed.

13.2. M&J shall not be liable for loss of production, loss of profit, loss of use, loss of contracts or for any consequential, economic, or indirect loss whatsoever. In no event shall M&J’s total aggregate liability under the relevant Agreement exceed 25% of the related order price. The aforesaid limitations of liability shall not, however, apply to damages caused by M&J’s wilful misconduct or gross negligence.

13.3. Customer understands and agrees that Customer’s sole and exclusive remedy, and M&J’s limit of liability, for any and all loss of damages resulting from defective Products/Goods or breach by M&J of any provision or term set forth herein or otherwise, in each case, shall be limited to the purchase price of the particular Products/Goods with respect to which such loss or damage is claimed, plus any transportation charges actually paid by Customer.

14. Mechanical Warranty
14.1. Warranty Period for new Equipment is 2,000 operating hours or twelve (12) months from the date of signed Certificate of Acceptance – whichever comes first – however, in no event shall the warranty period exceed eighteen (18) months from the date of delivery.

14.2. For used or refurbished Equipment, the Warranty Period is 1,000 operating hours or six (6) months from delivery.

14.3. The warranty period for new Spare Parts is 2,000 operating hours or twelve (12) months after delivery, whichever comes first. The warranty period for Refurbished Spare Parts is 1,000 operating hours or six (6) months after delivery, whichever comes first.

14.4. This warranty covers only parts failing due to faulty manufacturing or bad workmanship. It does not cover wear and tear or any faulty storage, usage or maintenance by the Customer.

14.5. This warranty is only applicable if service is done according to M&J’s service manual and by people from or approved by M&J.

14.6. Except for the warranties set forth in this section, M&J makes no warranty whatsoever with respect to the goods, including any (i) warranty of merchantability; or (ii) warranty of fitness for a particular pupose; or (iii) warranty of title; or (iv) warranty against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.

14.7. a signed certificate of acceptance with regard to equipment, but not including spare parts, is a precondition for the warranty outlined in this section.

15. Compliance with Law
15.1. Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement.

15.2. Compliance with OSHA, MSHA or similar federal, state or local laws during any installation, operation or use of the Product(s) is the sole responsibility of Customer.

16. Termination
16.1. In addition to any remedies that may be provided under these Terms, M&J may terminate Customer’s order with immediate effect upon written notice to Customer, if Customer (i) fails to pay any amount when due under this Agreement [and such failure continues for twenty (20) days after Customer’s receipt of written notice of non-payment]; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

16.2. Customer acknowledges that it does not have a right to terminate or suspend performance under these Terms or any relevant order for its convenience without M&J’s written consent, which consent may be withheld or delayed in M&J’s sole discretion. In the event that M&J provides such consent, Customer will pay M&J: (i) the price of any Products delivered (including services performed); (ii) all costs committed or incurred by M&J in performance of the Agreement; (iii) a reasonable profit on those costs; (iv) costs reasonably incurred to protect and preserve the Products in M&J’s possession or under its control; and (v) any supplier or subcontractor charges.

17. M&J Remote Connectivity
17.1. The Customer agrees to the transmission of equipment data to M&J (including but not limited to equipment details, operational data, time data and position data) and the storage of such data by M&J.

17.2. M&J shall have the right, free of charge, among others to use such data, for the purpose of providing on-line reporting services, offering, recommending and/or providing products and/or services to the Customer.

17.3. M&J shall not use the raw data obtained solely and directly from the Customer’s equipment to provide products and services to M&J’s other customers.

17.4. Without prejudice to the foregoing, M&J may compile and analyze the data and combine it with other data for the purposes of product development, evaluation, customer services and provision of goods and services on an anonymous and aggregated basis.

17.5. For the avoidance of doubt, M&J may transmit the data to its affiliated companies, suppliers, subcontractors and consultants.

17.6. All rights, title and interest to the data obtained and results and developments made or derived shall belong to M&J. M&J shall not publish data in such manner which would identify the Customer to the data, unless so consented by the Customer in writing.

17.7. The Customer shall ensure that the end-user (in case other than the Customer) shall give a similar consent of equipment data transmission to the M&J.

18. Software License Agreement
18.1. Title to software (software programs and libraries, whether in object or in source code format, upgrades, new releases and versions, modifications, additions, updates and fixes, and all documentation and know-how pertaining thereto) delivered to the Customer shall at all times remain the property of M&J. The Customer or the end user, as the case may be, shall be granted license to use the software in accordance with M&J’s software licensing terms. The Customer agrees to execute or ensures that the end user executes, as the case may be, an M&J Software License Agreement upon request.

19. Intellectual Property
19.1. M&J and its suppliers exclusively retain all rights, title and interest in and to the intellectual property rights and related concepts, to developed know-how, inventions, innovations and improvements, concepts ideas and trademarks, drawings, specifications, data, software, firmware, manuals, instructions, documentation or other works of authorship and other intellectual property (“M&J IP”) furnished by M&J to the Purchaser. Nothing in the General Terms and Conditions of Sale or the agreements to which they apply shall be construed as an assignment or transfer of title to or interest in M&J IP. The Purchaser may use M&J IP only for the installation, commissioning, operation, proper maintenance and repairing of the Products at the site and such right of use is included in the fees. M&J IP may not otherwise be used, copied, reproduced or disclosed to a third party.

20. Confidential Information
20.1. All non-public, confidential or proprietary information of M&J, including but not limited to specifications, samples, patterns, designs, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by M&J to Customer, whether disclosed orally or accessed in written, electronic or other form of media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement, is confidential, solely for the use of performing this Agreement and may not be disclosed or copies unless authorized in advance by M&J in writing. Upon M&J’s request, Customer shall promptly return all documents and other materials received from M&J. M&J shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Customer at the time of the disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

21. Sanctions and Export Control Laws
21.1. With respect to the fulfilment of each purchase order and the Agreement, the Customer and Seller undertake as follows:

(a) To comply with any and all laws and regulations applicable to the Customer or Seller with respect to the purchase order, the contract and any action taken pursuant to either prohibiting or otherwise restricting trade with any individual, entity or jurisdiction, or imposing licensing requirements on the same, including without limitation financial sanctions, trade embargoes and export controls such as those imposed by the US Treasury Department Office of Foreign Assets Control (OFAC), the US Department of State, the US Commerce Department, the European Commission or any member state of the European Union (together “Sanctions and Export Control Laws”).

(b) To not take any action, or make any omission, that could cause any party to be in breach of, or otherwise be exposed to any restriction or penalty pursuant to, or suffer any adverse consequences of any kind arising directly or indirectly from, any Sanctions and Export Control Laws, including without limitation making any Equipment or any item incorporating the Equipment available for the direct or indirect benefit of a person subject to financial sanctions, such as those named on the OFAC list of Specially Designated Nationals and Blocked Persons, the EU Consolidated List of Financial Sanctions Targets or any similar list maintained by any EU member state, or any party owned or controlled by such a person (together “Sanctions Targets”).

21.2. M&J Recycling shall have the right to suspend performance of its obligations under this contract and each purchase order pursuant thereto, and the right to terminate this contract, with immediate effect and without liability, if:

(a) in its reasonable judgment, circumstances exist that could result in the non-fulfilment of the undertaking in Clause 19.1;

(b) the Customer becomes a Sanctions Target;

(c) any bank refuses to receive or otherwise process a payment under the contract.

The Customer shall reimburse Seller for any claims, damages, losses, costs and expenses (including attorney's fees) suffered or incurred by Seller resulting from (i) the Customer’s breach of either of the undertakings in Clause 19.1; or (ii) Seller's suspension of its obligations under, or termination of, this contract pursuant to this Clause 19.2.

21.3. In the event that M&J terminates the Agreement to which these General Terms and Conditions of Sale apply and any purchase order pursuant to Clause 2 above, and without prejudice to M&J’s other rights and obligations under this contract, M&J shall be entitled to use the money as a set-off against claims under Clause 19.2 last paragraph.

22. Force Majeure
22.1. M&J shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these General Terms and Conditions of Sale or the Agreement to which they apply for any failure or delay in fulfilling or performing any term of hereof when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not related to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or telecommunication breakdown or power outage.

23. Disputes and Applicable Law
All matters arising out of or relating to this Agreement, or the Products will be governed by and construed in accordance with the laws of the United States and internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of North Carolina