Terms and Conditions - For Vendors

Last updated: 07/10/2023

Standard Terms and Conditions

These Standard Terms and Conditions (“Standard Terms” or “Agreement”) is a legal, binding agreement between Metals Mart, Inc. (“METALSMART”) and you, the purchaser or recipient of leads or services (“Dealer” or “You” or “Your”). Acceptance of these Standard Terms is a condition to Your use of any Leads or Services (as such terms are defined below) provided by METALSMART to You, and You covenant, represent, and warrant that You have the right and authority to enter into this Agreement on behalf of Dealer, if applicable.  BY CREATING AND ACCOUNT, WHICH WILL CONSTITUTE YOUR ELECTRONIC SIGNATURE, YOU ARE AGREEING TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS MAY BE MODIFIED FROM TIME TO TIME, AS PROVIDED BELOW.

Lead Generation and Delivery.  METALSMART shall collect information regarding consumers that may be interested in being matched with Dealer for the purposes of purchasing precious metals including, but not limited to, Gold, Silver, Platinum, and Palladium, (each, a “Lead”) and may deliver Leads to Dealer (the “Services”). Such information shall include, but may not be limited to, the following with respect to each Lead: name, email address, phone number, purchase amount, and precious metals product selections. Each Lead will be delivered only after consumer reviews a Dealer proposal and clicks on a request contact button for that specific Dealer. Dealer shall receive a username and password to a METALSMART customer self-service interface (“Portal”), allowing 24-hour access to all Leads. The Portal is a webpage or cellphone app based interface available to Dealer through which (i) updates to these Standard Terms may be provided; (ii) Dealer may manage leads and proposals,; (iii) Dealer may update, adjust and maintain “Dealer Information”, which shall include company details, logos, payment information, and other information; and (iv) Dealer may view information about Leads received by Dealer.  METALSMART will deliver Leads as requested by Dealer in the Portal. Please note that METALSMART does not guarantee continual delivery by Dealer’s preferred methods.
Disputed Leads.  Dealer may dispute Unqualified Leads (as defined below) within three (3) days of receipt (the “Dispute Period”) to receive credit for such Unqualified Leads. All Unqualified Leads not returned within the Dispute Window shall be deemed qualified and payment shall be due in full. For purposes of this Agreement, the defined term “Unqualified Lead” shall mean any leads returned for invalid contact information (phone number or email address). All Unqualified Lead disputes are subject to review by METALSMART for approval or denial. Upon receiving notice of termination, all Leads delivered to Dealer will be deemed qualified.
Use of Leads.  Leads and the related Services are provided by METALSMART on a non-exclusive basis for a specific type of precious metals-related product or service (the “Vertical”).  Dealer shall use the information contained in Leads solely to contact the applicable consumer regarding such consumer’s interest in making a purchase from Dealer with respect to the products and services in the Vertical. Dealer may not use the Leads or Services for purposes of marketing or offering products and services other than those in the Vertical for which the consumer has specifically inquired about.  Dealer (i) shall not sell, transfer or otherwise disclose information contained in Leads to any affiliated or unaffiliated third party unless and until Dealer obtains the consumer’s authorization to do so in accordance with applicable law;  (ii) agrees to use and disclose Lead information only in accordance with applicable law;   (iii) will not suggest or encourage consumers to contact METALSMART for the purpose of having the consumer “cancel” their Lead and (iv)  will not reveal any of METALSMART’S pricing information to any third party without METALSMART’S prior written consent.  For purposes of clarity, all METALSMART pricing information is METALSMART’S Confidential Information.
Distribution of Leads.  METALSMART may transmit Leads to Dealer if such Leads have asked to be matched with Dealer.  The parties acknowledge and agree that: (i) METALSMART is under no obligation to transmit any particular Lead to Dealer, even if such Lead is requested by consumer; and (ii) METALSMART may transmit Leads to other participating Dealers at any time.
Advertising Content.  Dealer shall provide to METALSMART all links, images, graphics, text and URL’s (collectively the “Content”) necessary for METALSMART to provide the Services. Dealer grants MetalsMart the right to use, reproduce, publicly display, and distribute the Content for the purpose of providing the Services.
Term of Agreement.  The term of this Agreement shall continue until either party terminates the Agreement pursuant to Section 7.
Termination of Agreement.  Either party may terminate this Agreement at any time for any reason upon twenty-four (24) hours’ notice to the other party via email or the Portal. Promptly upon termination, METALSMART shall cease providing the Services and Dealer’s account with METALSMART shall be terminated. Upon termination of this Agreement, Dealer shall pay to METALSMART any amounts due and payable for Services provided prior to the date of termination. All deposits made to METALSMART will be refunded via the payment method on file within 30 days of termination.   All provisions intended to survive the termination of this Agreement shall expressly survive termination and shall continue in force and effect, including, without limitation, Sections 3, 8.b, 9, 10-12 and 14 -17.
Dealer:
1. Dealer Representations and Warranties.  Dealer hereby represents and warrants to METALSMART that: (a) it shall have in effect all licenses and authorizations required by all applicable authorities allowing it to offer the precious metals products in the states in which it is doing business that are the subject of the Lead; (b) it shall comply with all local, state, and federal laws, ordinances, regulations, and orders applicable to its use of the Leads and any calls or other interactions with consumers resulting from the Leads, including without limitation the Telephone Consumer Protection Act and related regulations and authority (the “TCPA”), the CAN-SPAM Act, and/or any other federal and state laws and regulations governing the marketing, promotion, and/or sales of good or services, including without limitation general consumer protection laws and regulations; (c) the Content, trademarks, logos, testimonials and other materials submitted to METALSMART by Dealer do not and shall not contain any content, materials or advertising that is inaccurate or that infringes on or violates any intellectual property rights of any third party; (d) the Content and other materials submitted to METALSMART by Dealer shall comply with all applicable local, state and federal laws, ordinances, regulations and orders; and (e) it will ensure that its employees, contractors, and agents comply with the foregoing and all terms set forth within this Agreement.
2. Dealer Obligations. Dealer shall retain copies of all documents relating to its transactions with consumers in accordance with applicable law. Dealer acknowledges that METALSMART may request a copy of these documents to verify use of Portal and for quality control and other purposes.
Disclaimers.
1. METALSMART
  1. METALSMART is not a Dealer and is not engaged in selling precious metals.
  2. METALSMART does not attempt to fulfill any regulatory obligations, including notices or disclosures, which may be triggered by Dealer’s receipt of or response to consumers requests or Lead information and METALSMART’s obligations hereunder are limited to providing the METALSMART Services.
  3. METALSMART does not make any representations or warranties regarding the number or quantity of Leads that will be transmitted to Dealer, the identity of consumers whose purchase requests are transmitted to Dealer, the validity or accuracy of any purchase request or Lead information or the creditworthiness of consumers.
2. General. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE METALSMART SITE AND PORTAL IS PROVIDED FOR USE “AS IS” WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, METALSMART DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnification. Dealer shall defend, indemnify and hold harmless METALSMART and its subsidiaries, affiliates directors, officers, employees, agents or assigns from and against all, actions, claims, costs, liabilities, judgments, expenses, and damages (including amounts paid in settlement, accounting fees, expert costs and fees and reasonable attorneys’ fees) (collectively, “Losses”) resulting from a third-party claim, suit or investigation to the extent such Losses arise out of or are in connection with: (i)  Dealer’s breach of this Agreement, including without limitation any terms, covenants, warranties, or representations made within this Agreement; (ii) Dealer’s violation of applicable law; (iii) infringement of intellectual property rights, contract rights or tort rights (including the right of publicity or right of privacy) of any third party; (iv) any act  or omission of Dealer including, without limitation, any acts or omissions relating to consumer privacy, applicable law, appropriate approvals and licenses;  or (v) any negligent act or willful misconduct by Dealer or Dealer’s directors, officers, employees, agents or assigns; and Dealer agrees to promptly pay and fully satisfy any and all Losses, incurred or sustained or reasonably likely to be incurred or sustained, by METALSMART as a result of any claims of the types described in this Section 10.
Liability Limitations. EXCEPT IN THE EVENT OF A BREACH OF SECTION 14 OF THIS AGREEMENT, DEALER’S OBLIGATIONS WITH RESPECT TO CONSUMER INFORMATION AND INFORMATION SECURITY, OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, IN CONTRACT, TORT, OR OTHERWISE, FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, THE LOSS OF ANTICIPATED PROFITS RESULTING FROM PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL METALSMART’S LIABILITY TO DEALER EXCEED THE AMOUNT OF THE FEES DEALER HAS PAID METALSMART IN THE PRIOR SIX (6) MONTH PERIOD UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY AND WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.   THE PARTIES AGREE THAT THIS SECTION 11 REPRESENTS A REASONABLE ALLOCATION OF RISK.
Pricing / Terms of Payment / Disconnect Provision.
1. Dealer agrees to purchase Leads placed in Dealer’s Account at the prices set by Dealer via the Portal. Notwithstanding the foregoing, prices are subject to change at any time at METALSMART’S sole discretion.
2. METALSMART requires Dealer to maintain a minimum balance equal to or greater than the then-current price of a Lead (“Minimum Balance”). If the Minimum Balance is exhausted, METALSMART may (i) continue to perform the Services and deliver Leads to Dealer and shall have the right to charge Dealer’s card the greater of the requisite Minimum Balance or the amount selected by Dealer in the Portal;  or (ii) METALSMART may pause Dealer’s account. The purchase of a Lead is not refundable except to the extent such Lead is an Unqualified Lead reported to METALSMART during the Dispute Period, as expressly stated within this Agreement. When METALSMART release its billing module, Dealer may view in the Portal all Leads delivered to Dealer and billed in the previous month, plus any service charges that may be applied. In the interim, billing reports will be generated monthly and emailed to Dealer.
3. Dealer agrees to provide METALSMART with current and valid credit card information (type, name, number, expiration date, etc.) or ACH banking information and hereby authorizes METALSMART to charge the credit card or bank account provided by Dealer in the amounts owed or otherwise agreed upon, plus any applicable taxes.
4. In the event of a declined charge, METALSMART reserves the right to suspend Lead delivery and notify Dealer of declined card. Dealer has (3) business days after notification to provide METALSMART with payment sufficient to maintain the Minimum Balance.   Failure to return Dealer’s account to the Minimum Balance may result in termination of Dealer’s account in the Portal.
5. All amounts due hereunder shall be paid in U.S. dollars. All amounts invoiced shall be exclusive of taxes, and Dealer shall be responsible for all applicable taxes, customs, duties, fees and levies of any nature whatsoever. METALSMART reserves the right to terminate Dealer’s Portal access if payments due to METALSMART are not received in accordance with this Agreement.
Production Credits and Advertising.  Dealer hereby grants to METALSMART the right and license to use Dealer’s corporate logo, and any testimonials in any advertising or public relations campaigns related to promotion of the Services. Additionally, it is understood that METALSMART shall have full authority and permission to receive site and screen credits acknowledging its role as the developer of the Internet presence and producer of any associated multimedia.
Confidentiality.
1. Nondisclosure and Non-use.  The parties acknowledge that each party  (the “Recipient”) will receive in connection with this Agreement confidential information relating to the other party’s (the “Disclosing Party”) business, including but not limited to, information regarding the Disclosing Party’s products, services or offerings; planned marketing or promotion of the Disclosing Party’s products, services or offerings; the Disclosing Party’s business strategies, policies or practices; the Disclosing Party’s inventions, patents and patent applications, discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, “know-how,” trade secrets, any and all customer information, including without limitation, customer lists, customer names, addresses, and all other information related to customers, price lists and pricing policies; financial information, including budgets, forecasts, projections, operating results and financial statements; and information received from others that Disclosing Party is obligated to treat as confidential (collectively, “Confidential Information”). All pricing information, including, without limitation, the specific prices Dealer pays, is METALSMART’s Confidential Information.  Except as otherwise set forth herein, each party agrees to protect and maintain the secrecy of the Disclosing Party’s Confidential Information by, among other things: (i) treating such information with at least the same standard of care and protection which such party accords its own confidential and proprietary information but in any event with no less than a reasonable degree of care; (ii) using care in the assignment of personnel who receive or have access to such information, and instructing and obtaining the prior written agreement of such personnel to take all reasonable precautions to prevent unauthorized use or disclosure thereof; and (iii) not using, disclosing or exploiting such information except as necessary to perform any services or obligations hereunder or as otherwise pre-authorized by the Disclosing Party in writing.
2. Exceptions. Confidential Information does not include any information that the Recipient can demonstrate:  (i) was in the public domain at the time it was received; (ii) enters the public domain through no fault of the Recipient; (iii) is independently developed by Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is disclosed as required by law (including disclosures necessary or appropriate in filings with the Securities and Exchange Commission or other governmental body).  In addition, Recipient may disclose the Disclosing Party’s Confidential Information to a legal, judicial or governmental entity, or as required by the rules or orders of a court or governmental entity, provided that, before such disclosure, Recipient, if legally permissible, shall give reasonable advance written notice of such so that the Disclosing Party can seek a protective order or the appropriate protection for the Confidential Information and the Recipient uses reasonable efforts to have such information treated as confidential and under seal.
3. Destruction of Confidential Information. Upon termination of this Agreement, and on written request of the Disclosing Party, the Recipient will promptly destroy, and provide satisfactory certification of such destruction, all tangible items containing the Disclosing Party’s Confidential Information; provided, however, that the Recipient shall be permitted to maintain a copy as required by Applicable Law, the record keeping requirements of any applicable authority and/or any internal compliance policies.  Any Confidential Information retained pursuant to this Section shall remain subject to the confidentiality provisions contained in this Agreement for so long as it is retained by the Recipient.
4. Injunctive Relief. Each party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury to the Disclosing Party, the degree of which would be difficult to ascertain.  Accordingly, notwithstanding Section 14, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach or alleged breach of this Section, wherever it deems appropriate, as well as the right to pursue any and all other rights and remedies available at law or in equity in the event of such a breach or alleged breach.
Governing Law / Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. The parties agree that any action, suit, claim or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought by the parties in a Delaware state court or a federal court sitting in New Castle County in the State of Delaware which shall be the exclusive venue of any such action, suit, claim or proceeding. Each party waives any objection which such party may now or hereafter have to the laying of venue of any such action, suit, claim or proceeding, and irrevocably consents and submits to the jurisdiction of any such court in New Castle County in the State of Delaware (and the appropriate appellate courts) in any such action, suit, claim or proceeding. Nothing contained herein shall be deemed to affect the right of any party to serve process in any manner permitted by law.
Consumer Information and Information Security.
1. Consumer Information. Dealer understands that it may receive “Consumer Information” which may include, but is not limited to:  a person’s name, address, e-mail address, social security number and telephone number.  Dealer will maintain such Consumer Information in accordance with this Section 12 and in accordance with all applicable privacy laws, including the Gramm-Leach-Bliley Act of 1999 and implementing regulations.    Dealer will use industry standard best practices to protect the Consumer Information.
2. Electronic Incident Reporting. “Electronic Incident” shall mean any unauthorized action by a known or unknown person which, if successfully completed, would reasonably be considered one of the following:  an attack, penetration, denial of service, disclosure of Confidential Information or Consumer Information, misuse of system access, unauthorized access or intrusion (hacking), virus intrusion, scan of Dealer’s (or any third party vendor used by Dealer) or METALSMART’s systems or networks, or any other activity that could adversely affect Confidential Information or Consumer Information.  Dealer shall report to METALSMART all known or suspected Electronic Incidents and shall provide the following information: (i) nature and impact of the Electronic Incident; (ii) actions already taken by Dealer; (iii) Dealer’s assessment of immediate risk; and (iv) corrective measures to be taken, an evaluation of alternatives and next steps.  Dealer shall continue providing appropriate status reports to METALSMART regarding the resolution of the Electronic Incident and prevention of future such Electronic Incidents.  METALSMART may require that a company’s accessing, processing or storing of Confidential Information or Consumer Information be suspended, connectivity with Dealer be terminated, or other appropriate action be taken pending such resolution.
Miscellaneous.
1. Force Majeure. METALSMART shall not be liable for any nonperformance, delay, error, data loss or other loss caused by an event or conditions that are beyond the reasonable control of METALSMART.
2. Nonwaiver. Any failure by METALSMART to insist upon or enforce strict performance by Dealer of any of the provisions of this Agreement, or to exercise any right or remedy under this Agreement, shall not be construed as a waiver or relinquishment of METALSMART’S right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same shall be and remain in full force and effect.
3. Independent Contractor. METALSMART shall be and act as an independent contractor (and not as the agent or representative of Dealer) in the performance of this Agreement. This Agreement shall not be interpreted or construed as (a) creating or evidencing any association, joint venture, partnership or franchise between the parties, (b) imposing any partnership or franchisor obligation or liability on either party, or (c) prohibiting or restricting METALSMART’s performance of any services for any third party.
4. Entire Agreement; Conflict. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between METALSMART and Dealer with respect to the Services.
5. Amendment; Assignment. METALSMART reserves the right, at any time and from time-to-time, to update, amend, revise, supplement and otherwise modify these Standard Terms and to impose new or additional rules, policies, terms or conditions on Dealer’s participation in Services at any time without liability.  Dealer’s continued use of the Services after notice that the Standard Terms have changed shall constitute Dealer’s acceptance of such modification or amendment.  Notice of any changes to the Standard Terms will be made by posting updated Standard Terms in the Portal, and Dealer shall regularly check the Portal for updates to these Standard Terms. Dealer shall not assign or transfer any of its rights, obligations or interest in this Agreement without METALSMART’s prior written consent.