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Go to 'I Agree' statement.
1. Terms and Conditions.
THESE TERMS AND CONDITIONS CONSTITUTE AN AGREEMENT ("AGREEMENT")
BETWEEN BUYCASTINGS.COM, INC. ("AGENT") AND THE SUPPLIER ("SUPPLIER")
RESPONDING TO IT. THE SUPPLIER AGREES TO BECOME BOUND BY THE TERMS AND CONDITIONS
OF THIS AGREEMENT BY CLICKING ON "I ACCEPT THE AGREEMENT" BELOW, BY
SUBMITTING A QUOTATION OR BY ANY OTHER MEANS THAT INDICATE THE SUPPLIER'S ASSENT.
THIS AGREEMENT IS ENTERED INTO AS OF THE DATE THE SUPPLIER INDICATES SUCH AGREEMENT
("EFFECTIVE DATE").
2. Services. The services provided by Agent ("Services")
are owned and operated by Agent and are provided to Supplier under the following
terms and conditions:
(a) Supplier understands and agrees that Agent and its licensors,
shall retain all rights, title and interest in and to all information, content
(including, but not limited to, the identity of the buyers) or advertisements
(collectively, the "Content") distributed through, linked to, downloaded
or accessed from the www.BUYCASTINGS.com Web site or any successor thereto (the
"Site"). Supplier agrees that, except as necessary to use the Site
for its intended purposes, Supplier shall not reproduce, use or distribute the
Content in whole or in part. Supplier understands that any such misuse of the
Site, the Services or the Content shall constitute infringement of Agent's copyright
and other intellectual property.
(b) The Site acts as the venue for Supplier to submit quotations
to a prospective buyer ("Buyer") for sale of goods and services. Buyers
may respond to quotations. You may enter into correspondence with, participate
in promotions by and/or conduct transactions with Buyers. Any such content,
correspondence, promotion, or transaction, including the delivery of, the transaction
processing for, and the payment for, all goods and services, and any other terms,
conditions, warranties or representations associated with the foregoing, are
solely between Supplier and Buyer. Agent does not assume any liability, obligation
or responsibility in connection with any of the foregoing. In the event that
Supplier has a dispute with any Buyer or third party, Supplier releases Agent
(and Agent's agents, employees, directors and consultants) from claims, demands
and damages of every kind and nature, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of or in any way connected with such
dispute.
3. Submission of Quotations. Upon the Supplier's
assent to these Terms and Conditions, Agent may, in its discretion, submit to
the Supplier a request for a quotation ("RFQ") for the supply of goods
and services that Agent has obtained from a Buyer. If the Supplier responds
within the prescribed time period with an appropriate quotation ("Quotation"),
Agent, in its sole discretion, may present the Supplier's Quotation to the prospective
Buyer, together with quotations from other suppliers and additional information.
The Supplier acknowledges that the Buyer has the sole discretion to accept the
Quotation, decline the Quotation and/or contact the Supplier for negotiation
to modify the Quotation.
4. Supplier Services. The Supplier agrees to perform
its obligations under any Quotation (in original or modified form) accepted
by a Buyer. The Supplier, in its sole discretion, may agree to modify the Quotation.
5. Commission. In consideration of the services
provided under this Agreement, Supplier will pay Agent a commission on all sales
of goods and services by Supplier (or its affiliates) to Buyer (or its affiliates)
that: (a) arise out of or are based on the Quotation, or (b) arise out of an
order issued within three years after Supplier submits its Quotation to Agent.
For each order on which commission is due the commission shall be equal to x
percent (x%) of the gross invoice amount. The percentage is different for each
product and service category and the x% is given on Attachment A.
6. Payment and Audit. The payment of commission
on sales of goods and services by Supplier shall be made to Agent under the
following terms and conditions:
Supplier must provide Agent copies of all Buyer Purchase Orders upon
receipt as well as copies of all invoices to Buyer upon issuance. All payments
will be due and remitted to Agent by Supplier within 15 days of the date on
which payment of the ordered goods and services is received from the Buyer.
All payments to Agent shall be made in United States Dollars (in the case of
orders providing for payment in any other currency, at such exchange rate as
Agent shall reasonably determine) and shall be made to Agent in the United States.
Supplier shall not withhold any taxes or other governmental charges on any commission
due to Agent. If any taxes or charges are due as a result of any commission,
obligation or payment, Supplier shall bear the cost thereof.
(b) During the twenty-four (24) month period following the date that
a payment by Supplier is due to Agent but no more than twice per year (except
as otherwise required by any governmental regulatory agency), Agent shall have
the right to audit the Supplier’s records relating to payment to confirm the
accuracy of Supplier’s payments and records in order to verify the amount of
the payments owed and/or paid. If the amount owed to Agent was underpaid by
five percent (5%) or less for the applicable payment, then Supplier shall pay
the additional amounts owed to Agent plus interest within thirty (30) days of
notice and verification of such underpayment. If the amount owed to Agent was
underpaid in excess of five percent (5%) of the amount owed for the applicable
payment, then Supplier shall pay the costs associated with such audit and pay
the additional amounts owed to Agent plus interest within thirty (30) days of
notice and verification of such underpayment. Agent shall give reasonable advance
notice to Supplier of the audit, and to the extent reasonably possible each
audit shall be conducted in a manner that does not cause unreasonable disruption
to the conduct of Supplier's business. Commission payments that are not paid
when due shall bear interest at a rate equal to the lower of eighteen percent
(18%) per year or the highest rate permitted by applicable law.
7. Term and Termination.
(a) The term and methods of termination of this Agreement shall be
as follows:
(i) This Agreement shall commence upon the Effective Date and shall
remain in force for one (1) year subsequent to the Effective Date ("Term").
This Agreement will automatically renew for successive one (1) year terms ("Renewal
Term") unless either party gives written notice of termination to the other
party at least thirty (30) days prior to the end of the initial or successive
term.
(ii) This Agreement may be terminated at any time during any Renewal
Term by either party upon at least thirty (30) days prior written notice to
the other party. Without limiting any other remedies available, either party
shall have the right to terminate this Agreement at any time upon giving prior
written notice as follows:
(1) If the other party commits a material breach of this Agreement,
and such breach remains uncured thirty (30) days after written notice of such
breach is delivered to the other party; or
(2) If the other party makes an assignment for the benefit of creditors,
or commences or has commenced against it any proceeding in bankruptcy, insolvency,
or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium.
(b) From and after any termination of this Agreement:
(i) Rights of termination are without prejudice to any remedies available
to the parties under this Agreement for breach at law or in equity.
(ii) All commissions and any other monies due to Agent by Supplier
shall remain due and payable in accordance with the terms hereof.
(iii) Supplier shall complete all pending transactions with Buyers.
(c) Upon termination or expiration of this Agreement,
all provisions of this Agreement concerning the ongoing interests of the parties
shall continue and survive in full force and effect.
8.
Warranty
Disclaimer. Supplier uses the Services at its own risk.
Agent, its employees, users, affiliates, agents, third-party content providers,
suppliers, licensors, and the like do not warrant that the Services will be
uninterrupted or error free; nor do they make any warranty as to the results
that may be obtained from use of the Services, or as to any castings, product,
service, transaction or merchandise provided, promoted or entered into through
the Services. THE SERVICES AND ANY CONTENT, CASTINGS AND PRODUCTS ARE PROVIDED
ON AN "AS IS, AS AVAILABLE" BASIS. NEITHER AGENT NOR ANY OF ITS AFFILIATES
MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY
CONTENT, CASTINGS OR PRODUCTS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
9. Confidentiality/Non Disclosure. It is expected
that from time to time, Supplier may receive certain confidential and proprietary
information from Buyer or Agent in connection with the Services (all such information
is herein referred to as "Confidential Information"). Subject to the
provisions below, Supplier agrees to treat Confidential Information as confidential
and agrees not to use the same or any part thereof except as may be required
to prepare or submit a quotation pursuant to this Agreement or to perform any
agreement with a Buyer arising out of this Agreement, and will not disclose
the same or any part thereof to any third party without the prior, specific
written approval of Agent; provided, however, that to the extent, but only to
the extent reasonably necessary in connection with its activity hereunder, Supplier
may disclose the same to such third parties, including subcontractors and vendors,
who are subjected in writing to an obligation of confidentiality and restricted
use with respect to the same which is at least as restrictive as herein required
of Supplier. Nothing contained in this section shall in any way restrict or
impair the right of Supplier to use, disclose or otherwise deal with any information
which:
(i) At the time of disclosure is generally available to the public
or thereafter becomes generally available to the public by publication or otherwise
through no act of the Supplier;
(ii) Supplier can show was in its possession prior to the time of
the disclosure hereunder and was not acquired directly or indirectly from Agent
or Buyer; or
(iii) Is independently made available to Supplier as a matter of
right by a third party other than Agent.
10. Limitation of Liability. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS AGREEMENT OR OTHERWISE, NEITHER AGENT (INCLUDING WITHOUT LIMITATION,
ITS DIRECTORS, OFFICERS AND SHAREHOLDERS) NOR ANY OF ITS AFFILIATES WILL BE
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY
AMOUNT IN EXCESS OF THE AGGREGATE OF THE AMOUNTS PAID BY SUPPLIER FOR THE SERVICES
DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE,
OR (II) FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF
ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, CONTENT OR FILES, PROFIT,
GOODWILL, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
11. Compliance with Law. Supplier shall fully and
faithfully comply with all applicable laws, rules and regulations in connection
with the use of the Site or Content, dealings with Buyers and sales of castings
including but not limited to all applicable export, import, antitrust and competition
laws, rules and regulations.
12.
Indemnification. Supplier agrees to indemnify and hold harmless
Agent for damages, costs and attorneys' fees that Agent incurs from any claims,
actions or demands, including by way of example but not limitation legal and
accounting fees, arising from (i) Supplier's wrongful use of the Site, (ii)
Supplier's breach of this Agreement, or (iii) any alleged violation of or otherwise
relating to any applicable law, regulation or statute. Agent shall provide notice
to Supplier promptly of any such claim, suit, or proceeding and shall assist
Supplier, at Supplier's expense, in defending any such claim, suit or proceeding.
13. Non-Transferable. Your right to use the Site is
not transferable and is subject to any limits established by Agent, by your
credit card company or by the credit line you establish with Agent.
14. Notices. Unless states otherwise, all notices
will be sent by email: (i) by Supplier to BUYCASTINGS.com or (ii) by Agent either
to the email address Supplier provides to Agent during the registration process
or other address that Supplier specifies in writing. E-mail notices will be
read within 24 hours after they are sent, unless the sender is notified that
the email address is invalid or returned undeliverable. Alternatively, Agent
may provide notice by certified mail, postage prepaid and return receipt requested,
to the address provided to Agent on the user's registration form.
15. Force Majeure. Failure of or delay in performance
of any obligation or adherence to any provision of this Agreement (except for
failure or delay by a party to make payments due under or in connection with
this Agreement), shall not constitute a breach of the Agreement, if such failure
or delay is caused by or arises out of acts of God, acts of government, applicable
export or import laws or regulations as in effect from time to time, strikes
or labor difficulties, fire, failures or delays caused by suppliers or carriers,
material shortages, or any other cause which is beyond the control of the party
failing to perform or delaying its performance.
16. Governing Law; Forum. This Agreement shall be
exclusively governed by, and shall be exclusively interpreted in accordance
with, the laws of the State of Ohio, U.S.A. (excluding the conflict of laws
provisions thereof). Notwithstanding the foregoing, the 1980 U.N. Convention
on Contracts for the International Sale of Goods shall not apply to this Agreement
or any sale made pursuant to this Agreement. Subject to Section 14 of this Agreement,
any action or proceeding by either of the parties against the other arising
out of or relating to this Agreement; the making, performance, nonperformance,
or termination thereof; or any transaction between the parties or obligation
of either party or both parties in that connection, may (and, in the case of
any such action or proceeding against Agent may only) be brought in any federal
or state court located in Montgomery County, Ohio, U.S.A., and service therein
may be made upon any nonresident party at its address set forth in this Agreement
in accordance with the procedures provided for service upon nonresidents under
the laws of Ohio.
17. Arbitration. Any dispute or claim arising under
or in connection with this Agreement shall be finally settled by arbitration
under the international commercial arbitration rules of the American Arbitration
Association by one arbitrator appointed in accordance with such Rules. Such
arbitration shall be held in Dayton, Ohio, U.S.A. and shall be conducted in
the English language. Any award resulting from such arbitration shall be final
and binding on the parties. Judgment on any such award may be entered and enforced
in any court of competent jurisdiction. Notwithstanding the foregoing, Agent
shall at all times have the right to seek, at its option in lieu of arbitration,
in order to protect its trademarks, trade names, trade secrets, domain names
and/or any other confidential and/or proprietary information, such remedies
through the courts, at law or in equity, or otherwise as it deems necessary
or desirable, including without limitation, injunctive relief.
18. Severability. Nothing contained in this Agreement
shall be construed as requiring the commission of any act contrary to law. Whenever
there is any conflict between any provisions of this Agreement and any applicable
present or future statute, law, ordinance or regulation contrary to which the
parties have no legal right to contract, the latter shall prevail, and in such
event, the provisions of this Agreement thus affected shall be curtailed and
limited to the extent (but only to the extent) necessary to bring them within
the requirements of the law. If any part, section, sentence or clause of this
Agreement shall be held to be invalid or unenforceable, the same shall in no
way affect any other provision of this Agreement and the balance of this Agreement
shall continue in full force and effect.
19. Entire Agreement; Amendment; No Waiver. This Agreement
and any and all exhibits, addenda and supplements attached hereto constitute
the entire agreement between the parties in regard to the subject matter of
this Agreement and supersede any prior agreement, statements of policy, negotiations
or discussions in regard thereto. No amendment of this Agreement shall be effective
until signed by both parties hereto. No waiver, express or implied, of strict
compliance with all terms and conditions of this Agreement shall operate as
a waiver of any prior or subsequent failure to comply.
Attachment A (Definition of x% Commission as given in Section 5)
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Category |
%
|
| Abrasives | 3 | | Additives | 3 | | Binders | 2 | | Casting Impregnation | 3 | | Ceramics | 3 | |
Chemicals | 1 | | Electricity | 1 | | Employment | 10 | | Engineering Services | 10 | | Equipment |
10 | | Finishing Equipment | 10 |
|
|
Category |
%
|
| Finishing Supplies | 3 |
| Furnaces | 8 | | Grain Refiners |
3 | | Heat Treatment | 5 | | Hot Isostatic Pressing | 5 | | Ladels | 3 | | Machining | 5 | | Metal
Products | 1 | | Metals and Master Alloys | 1 | | Money | 5 |
|
|
Category |
%
|
| Office Equipment & Supplies
| 5 |
| Patterns | 3 | | Rapid Prototypes | 3 | | Sand | 2 | | Sand Reclaimers | 10 | | Shipping
| 5 | | Software | 10 | | Surplus Equipment | 15 | | Testing | 5 | | Tooling | 3 |
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I REPRESENT
AND WARRANT THAT I AM AN OFFICER OR REPRESENTATIVE OF THE SUPPLIER AUTHORIZED
TO BIND THE SUPPLIER TO THE TERMS AND CONDITIONS SET FORTH HEREIN. I HEREBY
ACCEPT THE PROVISIONS OF THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY
ITS TERMS AND CONDITIONS IN ALL FUTURE COURSE OF CONDUCT OF THE SITE.
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