THESE METAL EXCHANGE CORPORATION TERMS OF USE (these “Terms”) are agreed to between Metal Exchange Corporation, a Missouri corporation (“Metal Exchange,” “we,” “us,” and “our”) and you, or the entity on whose behalf you are agreeing to these terms.
These Terms apply to the Metal Exchange website located at https://mecplus.metalexchangecorp.com and all other sites, mobile sites, services, applications, platforms and tools where these Terms appear or are linked (collectively, the “Services”). These Terms also apply to the online portal, MECPlus, accessible through the Metal Exchange Website (“Customer Portal”). You and other individuals or entities using the Services are collectively referred to as “Users.”
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR OTHERWISE USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS. Any person or entity who interacts with the Services, whether through automated means, third-party means or otherwise, is considered a User. Unless you have entered into a separate written agreement with Metal Exchange regarding the Services, these Terms are the complete and exclusive agreement between you and Metal Exchange regarding your access to and use of the Services and supersede any oral or written proposal, quote, or other communication between you and Metal Exchange regarding your access to and use of the Services.
IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES.
- Definitions. Words and phrases used in these Terms have the definitions given in these Terms or, if not defined herein, have their plain English meaning as commonly interpreted in the United States.
- Term. These Terms are entered into as of the date you first access or use the Services (the “Effective Date”) and will continue until terminated as set forth herein.
- Modifications. We reserve the right, at any time, to modify any of the Services, as well as these Terms, whether by making those modifications available through the Services or by providing notice to you as specified in these Terms. Any modifications will be effective 24 hours following posting through the Services or delivery of such other notice. You must cease using the Services or terminate these Terms at any time if you do not agree to any modification. However, you will be deemed to have agreed to any and all modifications through your continued use of the Services following such notice. Any modifications to the Services, including all updates, upgrades, new versions, and new releases, will be treated as part of the “Services” for purposes of these Terms.
- Eligibility. The Services are intended for use by Users of 18 years of age and older.
- Access. Subject to your compliance with these Terms, we will permit you to access and use the Services solely for lawful purposes and only in accordance with these Terms.
- Unlawful or Prohibited Uses of the Services. The Services may only be used for lawful purposes in accordance with these Terms. As a condition of your use of the Services, you represent and warrant to us that you will not use the Services for any purpose that is unlawful or prohibited by these Terms. Whether on behalf of yourself or on behalf of any third party, you will not:
- Make any commercial use of the Services other than in furtherance of any Transactions that you make through the Services;
- Download, copy or transmit any content for the benefit of any third party;
- Misrepresent your identity, impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Services, or express or imply that we endorse any statement that you make;
- Conduct fraudulent activities through the Services; and
- Use the Services to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including others’ privacy rights or rights of publicity.
- Accounts. Before using certain Services and in particular the Customer Portal, you may be required to establish an account (an “Account”). Approval of your request to establish an Account will be at our sole discretion. Each Account and the User identification and password for each Account (the “Account ID”) is personal in nature. You will not distribute or transfer your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of the Services through your Account. You will ensure the security and confidentiality of your Account ID and will notify us immediately if any Account ID is lost, stolen or otherwise compromised. Any activities completed through your Account or under your Account ID will be deemed to have been done by you. You may not: (1) select or use an Account ID of another User with the intent to impersonate that User; and (2) use an Account ID that we, in our sole discretion, deem offensive.
- Our Content.
- Ownership and Responsibility. All content included with the Services that we provide, such as text, graphics, logos, images, software, application updates, and other materials (collectively, “Our Content”) is the owned or licensed property of Metal Exchange or its suppliers or licensors and is protected by United States and international copyright, trademark, patent, or other proprietary rights (collectively, “IPR”). Metal Exchange and its suppliers and licensors expressly reserve all IPR in all Our Content. You are solely responsible for verifying the accuracy, completeness, and applicability of all Our Content and for your use of any of Our Content. Except as set forth in these Terms, you are granted no licenses or rights in or to any of Our Content, or any IPR therein or related thereto.
- Viewing Our Content. Subject to your compliance with these Terms, you may view Our Content, solely as presented on the Services, in furtherance of any Transactions that you make through the Services and any other permitted uses of the Services. You will not directly or indirectly use any of Our Content for any other purpose. You will not, and will not permit any third party to: (a) alter, modify, copy, reproduce, publish, or create derivative works of any of Our Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Our Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any of Our Content.
- Transactions.
- With Us. To the extent you are authorized to access the Customer Portal (as described in our Privacy Policy), the Services provide you with the opportunity to review our available inventory and then place orders through the Customer Portal. Our standard purchase terms will be provided to you on the Customer Portal.
- Items. All descriptions, images, references, features, content, specifications, products and prices of our products (“Items”) are subject to change at any time without notice. The inclusion of any Items on the Services does not imply or warrant that these Items will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws in regard to the receipt, possession, use, and sale of any Item.
- Customer Service. We or our agents may call, text, or email you at the telephone number and/or email address that you provide us regarding customer service issues. Our use of your contact information will be handled in accordance with our Privacy Policy below.
- Termination. To the extent permitted and in accordance with applicable law, we may terminate your access to the Services or your Account at any time if you violate these Terms or for any reason, at our sole discretion.
- Suspension. Without limiting our right to terminate these Terms, we may also suspend your access to your Account and the Services, with or without notice to you, upon any actual, threatened, or suspected breach of these Terms or applicable law or upon any other conduct deemed by us to be inappropriate or detrimental to Metal Exchange, the Services, or any other User or third party.
- Technology and Marks. The Services, and the databases, software, hardware and other technology used by or on our behalf to operate the Services, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), may constitute valuable trade secrets of Metal Exchange. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in these Terms; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, or create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology. We use reasonable means to protect the security of the Services, but you acknowledge that perfect security on the internet is impossible and that, as a result, information relating to Users may be exposed in the event of a breach. We retain all rights, title, and interest, including, without limitation, all IPR in and to the Technology and any additions, improvements, updates, and modifications thereto. You receive no ownership interest in or to the Technology, and you are not granted any right or license to use the Technology itself, apart from your ability to access and use the Services under these Terms. The Metal Exchange name, logo and all product and service names associated with the Services or Items are trademarks of Metal Exchange and its licensors and providers, and you are granted no right or license to use them.
- Representations and Warranties. You hereby represent and warrant to us that: (a) you have the legal right and authority to enter into these Terms; (b) these Terms form a binding legal obligation on your behalf; (c) you have the legal right and authority to perform your obligations under these Terms and to grant the rights and licenses described in these Terms; and (d) your access to, and use of, the Services and your content, will comply with all applicable laws, rules, regulations, and third-party rights and will not cause us to violate any applicable laws, rules, regulations, or third-party rights.
- Disclaimers. WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS, OR OTHERWISE MEET YOUR REQUIREMENTS. THE SERVICES AND ALL CONTENT, ITEMS, TECHNOLOGY, AND OTHER INFORMATION INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES (COLLECTIVELY, THE “MATERIALS”) ARE PROVIDED BY US ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE MATERIALS, THE ACCURACY OR COMPLETENESS OF THE MATERIALS, OR THAT COMMUNICATIONS SENT FROM US ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE MATERIALS IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
- Indemnity. You hereby agree to indemnify, defend, and hold harmless us and our officers, directors, members, managers, shareholders, affiliates, employees, agents, contractors, Users, customers, providers, licensees, successors-in-interest, and assigns (“Indemnified Parties”) from any and all claims, suits, demands, actions, losses, liabilities, damages, judgments, settlements, fines, penalties, fees, expenses and costs (including attorneys’ fees and court costs) arising in any manner from: (1) your access to, or use of, the Materials; (2) your content; and (3) your breach of any representation, warranty, or other provision of these Terms. We will provide you with notice of any such indemnifiable claim or allegation, and we will have the right to participate in the defense of any such claim at our expense.
- Limitation on Liability. WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH, OR OUT OF THE USE OF, THE MATERIALS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS AND ALL MATERIALS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100. YOU AGREE THAT WE WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON OUR LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Data Privacy. You acknowledge that you have read and understood the Privacy Policy included below.
- Disputes.
- Agreement to Arbitrate. Except as otherwise provided in these Terms, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms, including: (a) the formation, validity, binding effect, interpretation, performance, breach, or termination of these Terms; (b) the arbitrability of the issues submitted to arbitration hereunder; and (c) non-contractual claims relating to these Terms (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in these Terms, if any Dispute cannot be resolved through negotiations between the parties within 15 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the rules of the American Arbitration Association then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by us in St. Louis, Missouri, United States. The arbitrator will apply the governing law set forth in in these Terms to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend these Terms or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the substantially prevailing party’s costs, fees and expenses (including reasonable attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
- Exception to Arbitration. You agree that if we reasonably believe that you have, in any manner, violated or threatened to infringe our IPR, then we may seek emergency, preliminary or other appropriate interim relief in the federal or state courts located in St. Louis, Missouri, United States.
- Governing Law and Venue. The interpretation of the rights and obligations of the parties under these Terms, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Missouri, United States as such laws apply to contracts between Missouri residents performed entirely within Missouri, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, and the parties hereby disclaim the application thereof. Subject to the arbitration provision of these Terms, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court located in St. Louis, Missouri, United States, and you irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding.
- Notices. Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided to us by postal mail to the address for Metal Exchange listed on the Services. We may provide you with any notices required or allowed under these Terms by sending you an email to any email address that you provide to us in connection with your Account, provided that in the case of any notice applicable both to you and other Users, we may instead provide such notice by posting it on the Services. Notices provided to us will be deemed given when we actually receive them. Notice provided to you will be deemed given 24 hours after posting to the Services or sending via e-mail, unless (as to e-mail) we are notified that the e-mail address is invalid.
- 21.Additional Terms. Except as expressly set forth in these Terms, these Terms may be amended or modified only by a writing signed by both parties. All waivers by us under these Terms must be in writing or later acknowledged by us in writing. Any waiver or failure by us to enforce any provision of these Terms on one occasion will not be deemed a waiver by us of any other provision or of such provision on any other occasion. If any provision of these Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The substantially prevailing party in any lawsuit or proceeding arising from or related to these Terms will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither these Terms nor any of your rights or obligations hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without our prior written approval. Any assignment in violation of the foregoing will be null and void. We may freely assign these Terms. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” The parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
