Effective September 1, 2017
ORION PRECIOUS METALS, INC.
TERMS OF USE
These Terms are an agreement between you and Orion Precious Metals, Inc. and its affiliates (collectively, “Orion,” the “Company,” “we,” “us,” or “our”) and govern your use of the website made available at http://www.OrionMetalsExchange.com and its associated webpages and mobile applications (collectively, the “Site”), including all communications and interactions with Orion through or facilitated by the Site.
In the event you sign a Customer Agreement with Orion and there is an inconsistency between the Customer Agreement and these Terms, the Customer Agreement you execute (as amended, if appropriate) shall control and govern.
These Terms are also for the express benefit of Orion’s representatives, officers, shareholders, subsidiaries, employees, and agents. If and to the extent an action of any kind is brought against any such person on account of the Site or any communications and interactions with Orion through or facilitated by the Site, such persons shall have all of the protections afforded by these Terms, including the dispute resolution procedure.
The Terms include the Company’s Privacy Policy, which is available at www.orionmetalexchange.com and which is incorporated by this reference. Please review all of the Terms carefully. BY USING OUR SITE, YOU ARE ACCEPTING AND CONSENTING TO THESE TERMS, AS UPDATED AND AMENDED FROM TIME TO TIME. IF, FOR ANY REASON, YOU DO NOT AGREE TO THESE TERMS, PLEASE STOP USING THE SITE IMMEDIATELY.
Both you and the Company agree, with the limited exceptions noted below, to resolve all disputes between you and the Company through BINDING INDIVIDUAL ARBITRATION as further provided below. BINDING INDIVIDUAL ARBITRATION MEANS THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION.
With respect to your use of the Site, these Terms may be amended by us from time to time at our sole discretion. Please periodically review the controlling, online version of these Terms. By continuing to use the Site subsequent to the Company making available an amended version of these Terms, you thereby acknowledge, agree and consent to such amendment.
You represent that: (1) you are at least 18 years of age; (2) you are of legal capacity to form a binding contract; and (3) you are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions.
You may access portions of this Site without registering. However, you may be required to register with and sign into the Site to access all of its features. You are responsible for maintaining the confidentiality of your username, password, and other information used to register and sign into the Site, and you are fully responsible for all activities that occur under this username and password. Please immediately notify us of any unauthorized use of your account or any other breach of security by contacting us at Benjamin@OrionPreciousMetals.com. If you interact with us or with third-party service providers, you agree that all information that you provide will be accurate, complete, and current.
This Site may be linked to other websites. You acknowledge and agree that the Company is not responsible for the availability of such external websites, and does not endorse and is not responsible or liable for any content, advertising, products and/or other materials on or available from such websites. The Company makes no warranties or representations of any kind as to the accuracy, currency, or completeness of any information contained in such websites and shall have no liability for any damages or injuries of any kind arising from such content or information. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website. Inclusion of any third party link does not imply an endorsement or recommendation by the Company.
We reserve the right at any time to modify or discontinue, temporarily or permanently, this Site or any part thereof with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of this Site or any part thereof.
The Company and our associated logos and names, if any, are our trademarks and/or service marks. Other trademarks, service marks, names, and logos used on or through the Site, such as trademarks, service marks, names, or logos associated with third party organizations, are the trademarks, service marks, or logos of their respective owners. You are granted no right or license with respect to any of the foregoing trademarks, service marks, or logos.
Certain materials available on or through the Site are our Works (i.e., content we own, authored, created, purchased, or licensed). Our Works may be protected by copyright, trademark, patent, trade secret, and/or other laws, and we reserve and retain all rights in our Works and the Site. We hereby grant you a royalty-free, limited, revocable, non-sublicensable, and non-exclusive license to access our Works solely for your personal use in connection with using the Site. You may not otherwise reproduce, distribute, communicate to the public, make available, adapt, publicly perform, link to, or publicly display the Works or any adaptations thereof unless expressly set forth herein.
You and other users may be able to upload, post, create, make available, send, share, communicate, transmit, or submit (“Submit”) data, information, comments, ideas, or other types of content (collectively, “Web Content”) to or through the Site and other websites linked to on the Site. You understand that all content Submitted by users of the Site (“User Web Content”) is the sole responsibility of the person from whom such content originated. We do not make any guarantee whatsoever related to User Web Content. Under no circumstances will we be liable or responsible in any way for any claim related to User Web Content.
You retain ownership of any intellectual property contained in your User Web Content. However, you grant us a royalty-free, irrevocable, transferrable, sublicensable, and non-exclusive perpetual license throughout the universe for use in any and all media whether now known or hereafter devised to use and exploit (including without limitation by reproduction, distribution, public display, adaptation, communication to the public, and/or public performance) any and all User Web Content that you Submit to or through the Site. You also waive to the fullest extent permitted by law any and all claims against us related to moral rights in the User Web Content. In no circumstances will we be liable to you for any exploitation of any User Web Content that you Submit. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish and exploit User Web Content that you Submit.
You also grant other users of the Site a non-exclusive, royalty free license to access your User Web Content via the Site consistent with the terms herein and to engage in any reproductions, public performances, communications to the public, distributions, or public displays necessary to do so.
By submitting to us any comment or testimonial, you grant to us and our designees, successors, assigns and licensees the irrevocable, royalty-free right to publish, disseminate, and use your name and likeness, as well as your comment or testimonial, without further notice or consideration, in perpetuity, throughout the world, in all media and media now known or hereafter invented.
The Company has no obligation of confidentiality, express or implied, with respect to any User Web Content that you Submit to us through the Site or through the Internet by email or otherwise, such as any questions, comments, suggestions, or the like. The Company shall be entitled to use, exploit, or disclose (or choose not to use, exploit, or disclose) such User Web Content at our sole and absolute discretion without any obligation to you whatsoever (i.e., you will not be entitled to any compensation or reimbursement of any kind from us under any circumstances whatsoever). The Company shall be free to use any ideas, concepts, know-how or techniques contained in any communication from you to the Company for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products, without further authorization from you and without any compensation to you.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT FOR USER CONTENT AND LINKS
We have adopted a policy, in compliance with the Digital Millennium Copyright Act (“DMCA”), to enable, at our sole discretion, the expeditious removal of infringing material and the termination of repeat infringers’ accounts. If you have a good faith belief that your copyright is being infringed by any Content accessible on or through the Site, please send a notice of claimed infringement, including the information listed below, to our Designated Copyright Agent at:
By mail: Orion Precious Metals, Inc., Attn: Benjamin Novak, 12301 Wilshire Blvd., Suite 412, Los Angeles, California 90025
By email: Benjamin@OrionPreciousMetals.com
To be effective, the notice of claimed infringement must include the following required contents:
Please note that information provided in this legal notice may be forwarded to the person who provided the allegedly infringing Content.
To leave a message for the Company’s Designated Agent by phone please call 1-800-559-0088.
PROCEDURE FOR MAKING OTHER COMPLAINTS
If you believe that your rights, or the rights of a third party, are being violated in any way by any Content accessible on or through the Site, please contact us at Support@OrionMetalsExchange.com. Where appropriate, we will work to prevent unlawful activity from taking place on or through the Site.
PROHIBITED CONDUCT/REPRESENTATIONS AND WARRANTIES
You represent and warrant that you will not use the Site to:
PRICING AND PRODUCT DESCRIPTIONS
Although we make reasonable efforts to provide accurate pricing information and product descriptions, pricing mistakes, typographical errors or mistakes regarding product availability may occur. We reserve the right to correct such mistakes and errors. In the event that a product is listed at an incorrect price or a product description is inaccurate, we shall have the right, in our sole discretion, to reject any order or to cancel any orders placed for that product.
INDEMNIFICATION
You agree to indemnify and hold the Company and its representatives, officers, shareholders, subsidiaries, affiliates, employees, and agents harmless from any and all third party claims, demands, actions, suits, losses, obligations, liabilities, judgments, proceedings, damages, expenses and costs (including reasonable attorneys’ fees and expenses), based upon, relating to, or arising under or out of the relationship between you and us described in these Terms, including any breach of the representations and warranties contained herein. You hereby agree that we shall have the sole right and obligation to control the legal defense against any such claims, demands, or litigation, including the right to select counsel of our choice and to compromise or settle any such claims, demands, or litigation.
DISCLAIMER OF WARRANTIES
YOU USE THIS SITE AT YOUR SOLE RISK. THIS SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATED TO THE SITE AND CONTENT OBTAINED THROUGH THIS SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED: (1) THAT THIS SITE WILL MEET YOUR REQUIREMENTS; (2) THAT THE QUALITY OF ANY CONTENT OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; (3) THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED; OR (4) THAT THE SITE, OUR SERVERS, OR COMMUNICATIONS SENT FROM US WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THIS SITE.
NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF OURS HAS ANY AUTHORITY TO BIND US TO ANY AFFIRMATION, REPRESENTATION, OR WARRANTY RELATING TO OUR PRODUCTS OTHER THAN AS SPECIFICALLY PROVIDED HEREIN OR IN OUR CUSTOMER AGREEMENT.
LIMITATION OF LIABILITY
THE COMPANY SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF, OR THE INABILITY TO USE, THIS SITE OR FROM ANY INFORMATION, CONTENT OR MATERIALS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS FOUNDED UPON CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TORT, NEGLIGENCE, OR OTHER GROUNDS. THIS LIMITATION DOES NOT, HOWEVER, EXTEND TO DIRECT OR CONSEQUENTIAL DAMAGES FOR PERSONAL PHSYICAL INJURY. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THIS SITE.
SOME JURISDICTIONS MAY NOT PERMIT CERTAIN LIMITATIONS OF LIABILITY OR DAMAGES. IF ANY COURT DETERMINES THE LAW OF SUCH A JURISDICTION APPLIES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
RELEASE
If you have a dispute with one or more users of the Site, or with any party who provides advertising or third-party services, on, or through the Site, or with any party who provides a website linked to on the Site, you release the Company from claims, demands, and damages (incidental, indirect, punitive, statutory, exemplary, expectation, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you have a dispute with any third party in any way pertaining to our products, you release the Company from claims, demands, and damages (incidental, indirect, punitive, statutory, exemplary, expectation, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. You also waive California Civil Code § 1542 which says:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You also waive any and all benefits and rights that would otherwise accrue to you by reason of the provisions of any federal or state statute or principle of common law of any state of the United States, or any political entity or nation, province or local law or regulation that may govern this release, which statute, regulation, law or principle provides in substance something similar to California Civil Code § 1542. You agree not to file any action or lawsuit inconsistent with the foregoing release.
DISPUTES AND DISPUTE RESOLUTION
BINDING ARBITRATION AGREEMENT AND CLASS WAIVER DISCLOSURE
Both you and the Company agree, with the limited exceptions noted below, to resolve all disputes between you and the Company through BINDING INDIVIDUAL ARBITRATION as further provided below. BINDING INDIVIDUAL ARBITRATION MEANS THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION.
Both you and the Company waive the right to bring any controversy, claim or dispute arising out of or relating in any way to your use of the Site as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else. (This waiver, which is discussed further below, is generally referred to herein as the class action waiver.)
GOVERNING LAW
Use of this Site and any controversy, claim or dispute arising out of or relating in any way to your use of the Site shall be governed by the laws of the State of California without respect to its choice (or conflict) of laws rules. Notwithstanding the immediately preceding sentence or anything else herein to the contrary, the requirement to arbitrate claims on an individual basis, and the arbitration provisions set forth herein in general, shall be governed by and interpreted in accordance with the Federal Arbitration Act.
FORUM SELECTION/JURISDICTION
Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes. If this paragraph would render any other paragraph or provision of these Terms unenforceable, then jurisdiction and venue shall instead be in your home county of residence.
AGREEMENT TO PRE-ARBITRATION NOTIFICATION
These Terms provide for final, binding arbitration of all disputed claims (discussed immediately below). The Company and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, the claimant (whether you or the Company) shall send a letter to the other side briefly summarizing the claim and the request for relief. If the Company is the claimant, the letter shall be sent to whatever address is on file for you. If you are the claimant, the letter shall be sent to Orion Precious Metals, Inc., Attn: Benjamin Novak, 12301 Wilshire Blvd., Suite 412, Los Angeles, California 90025. If the dispute is not resolved within 60 days after the letter is sent, the claimant may proceed to initiate arbitration proceedings or any other proceedings authorized herein.
AGREEMENT TO ARBITRATE CLAIMS
Except to the limited extent noted below, use of this Site and any controversy, claim or dispute arising out of or relating in any way to your use of the Site shall be resolved by final and binding arbitration.
The arbitration shall take place in Los Angeles County, California in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration.
If you decide to commence arbitration, the provider will require to you to pay a filing fee (which, at the time these Terms were posted, is currently $200). If your filing fee is more than $200, the Company will reimburse you for any excess fee promptly after it receives notice of your arbitration. If the arbitrator ultimately rules in your favor, the Company will also reimburse you for the $200 base fee. Finally, you may request from the arbitrator a waiver of this fee on the ground that you cannot afford it. If the arbitrator concludes that a waiver is appropriate – using the same standards that would apply if you sought waiver from the Los Angeles Superior Court – then the Company will promptly reimburse the fee after it receives notice of the arbitrator’s waiver decision. The Company will pay all of the arbitrator’s fees for hearing the matter, provided the amount claimed in your demand is less than $10,000. If your demand equals or exceeds $10,000, then responsibility for payment of the arbitrator’s fees shall be determined in accordance with the applicable arbitration rules.
If the arbitrator rules in your favor in any respect on the merits of your claim and issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or greater than zero if no offer was made), then the Company will pay you the amount of the award or $5,000, whichever is greater (in addition to reimbursing you for the base fee).
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall determine any and all challenges to the arbitrability of a claim. The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
Both you and the Company waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver of such joined proceedings specified herein is not enforceable, then the entirety of this Dispute Resolution procedure shall be null and void.
SMALL CLAIMS PROCEDURE ALTERNATIVE
Notwithstanding the foregoing binding arbitration procedure, either party may bring an individual action in small claims court (provided the claim otherwise qualifies for such program) as an alternative to proceeding with arbitration.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
MISCELLANEOUS
Absent execution of a Customer Agreement with Orion, these Terms constitute the entire agreement between you and the Company and govern your use of this Site. In the event you sign a Customer Agreement with Orion and there is an inconsistency between the Customer Agreement and these Terms, the Customer Agreement you execute (as amended, if appropriate) shall control and govern.
These Terms and the rights, benefits and obligations contained herein are fully assignable by us and will be binding upon and inure to the benefit of our successors and assigns.
No party, nor any of the parties’ respective attorneys, shall be deemed the drafter of this agreement for purposes of interpreting any provision hereof in any judicial or other proceeding that may arise between the parties.
Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to this agreement. For the purpose of clarity, the Company’s representatives, officers, shareholders, subsidiaries, affiliates, employees, and agents are intended third-party beneficiaries.
Any failure of the Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver or relinquishment to any extent of such right or provision. Any waiver of any right or provision of these Terms must be in writing.
With the exception of any findings as to the enforceability of the waiver of joined proceedings, which is addressed specifically above, if any other provision of these Terms is found by a court of competent jurisdiction to be invalid, the court should nevertheless endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.
The headings in these Terms are for convenience only and have no legal or contractual effect.
We may terminate or amend these Terms for any or no reason at any time by notifying you through a notice on the Site, by email, or by any other method of communication. Any such termination will be without prejudice to our rights, remedies, claims, or defenses hereunder.
“Include,” “Includes,” “Including,” “include,” “includes,” and “including” herein mean including without limitation.
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