PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. BY USING THE BENCHMARKING TOOLS AND SERVICES YOU ARE INDICATING THAT YOU HAVE READ AND CONSENT TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT.
1. MetalMiner℠ Benchmark and Metal Benchmarking Report. MetalMiner℠ Benchmark is an internet-based service (“Service”) that enables buyers of metal to contribute and compare prices they are paying and/or have been quoted for certain Metal Categories with the prices paid and/or quoted to other Users of the Service. Metal Categories are herein defined as unique form, alloy, and grade combinations. Metals Benchmarking Report ("MBR") is a report generated by the Service that helps Customers identify general vs. specific areas of sourcing strength or weakness in relation to specific Metal Categories.
2. Eligibility. Price Dynamics retains the sole discretion to determine whether to allow You access to some or all of the Benchmarking Tools. The Benchmarking Tools are for individually authorized business Users only and are subject to the rights and restrictions outlined herein.
3. Use of Service.
(a) Price Dynamics License. As with other community based, crowd sourcing services, any information supplied by You (hereafter “Benchmark Information”) is retained in the Benchmarking Tools, including but not limited to: Company Type, Company Industry, Company Location, Form, Alloy, Grade, Specification, Size, Order Date, Order Quantity, Price, Quantity, Lead-time, Source Type, Source Location, and Material Origin. As a condition of use, You therefore grant to Price Dynamics the right to retain, use and share in any manner, all Benchmark Information. Without limiting the foregoing, the Parties agree that your Name, your Company Name and the name of your Source of Supply will never be disclosed to any third party without your prior written consent. Personal profile information provided by You such as user name, address, URL, phone, fax, and email address, will be retained by Price Dynamics but will NOT be sold to third-parties that might use such information to send you unsolicited sales offers and other communications.
(b) Users Permission. Price Dynamics grants You permission to access and use the Benchmarking Tools and other services made available to You through Price Dynamics in accordance with this Agreement.
(c) Registration. You must register for an account in order to access the Benchmarking Tools and be assigned a User-specific login and password in order to use the Benchmarking Tools. You are solely responsible for maintaining the confidentiality of Your account login and password, and for restricting access to Your account. You agree to accept responsibility for all activities that occur under Your account.
(d) Content. You are solely responsible (and Price Dynamics LLC, has no responsibility to You or to any third party) for any Benchmark Information or other content that You create and submit to Price Dynamics or enter directly into the Benchmarking Tools. You agree that: (i) the Benchmark Information and content that You provide at the time of registration and at all other times will be true, accurate, current, and complete; (ii) You will not provide any Benchmark Information or content that is false, offensive or misleading; (iii) Price Dynamics reserves the right (but is not obligated) to pre-screen, review, flag, filter, modify, refuse or remove any or all Benchmark Information and content from the Benchmarking Tools; and (iv) Price Dynamics is not obligated to use any of the Benchmark Information and content that You may provide.
(e) Restrictions. For the avoidance of doubt, You are not licensed or permitted, and You agree not to use or access (or allow others to use or access) the Benchmarking Tools for the purpose of creating a competing service or informational product.
(f) Authorized Use. You agree that any information obtained through the Benchmarking Tools is for Your authorized business use only, and may not be sold or redistributed without the express written consent of Price Dynamics and Price Dynamics has the sole discretion to withhold such consent. If You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your account ID or password), then You agree to immediately notify Price Dynamics at: firstname.lastname@example.org, whereupon we will issue new log-in credentials.
(g) Intended Use. You agree not to: (i) interfere with, or attempt to interfere with the proper working of the Benchmarking Tools; (ii) post or transmit to the Benchmarking Tools any unlawful, fraudulent, offensive, harassing, libelous, or obscene content; (iii) post or transmit to the Benchmarking Tools any content that contains a virus, bug, Trojan Horse or other harmful item; and (iv) publish, perform, distribute, prepare derivative works, copy or reverse engineer the Benchmarking Tools.
(h) Access Rights. If You fail to satisfy any of the above responsibilities, Price Dynamics reserves the right to take any reasonable action deemed necessary or appropriate, including limiting or suspending Your access and use of the Benchmarking Tools and deleting any of Your Benchmark Information and content, and/or to pursue legal action if necessary.
(a) Modifications. Price Dynamics reserves the right at its discretion, to change, modify, add, or remove portions of these Terms at any time. Please check the Terms periodically for changes. Your continued use of the Benchmarking Tools after the posting by Price Dynamics of any changes constitutes Your implicit and binding acceptance of any such changes.
(b) Guidelines. When using the Benchmarking Tools, You will be subject to any posted policies and guidelines applicable to specific services and features which may be posted by Price Dynamics from time to time. All such posted policies and guidelines are hereby incorporated by reference into these Terms.
(c) Features and Services. From time to time, Price Dynamics may add, change, or delete features and services made available to You through the Benchmarking Tools.
6. Term and Termination.
(a) Term. You may use the services on Price Dynamics in accordance with these Terms in perpetuity from the date You register, unless otherwise terminated earlier in accordance with this Section 6.
(b) Termination. You agree that Price Dynamics shall have the right to terminate, limit or suspend your access to all or any part of the Benchmarking Tools at any time, with or without notice, and without liability to You or any third party, for any conduct that Price Dynamics determines is in violation of the Terms, or is otherwise detrimental to the use and operation of the Benchmarking Tools. These remedies are in addition to any other remedies Price Dynamics may have at law or in equity. You shall have the right to terminate Your use of the Benchmarking Tools at any time by deleting Your account with the Benchmarking Tools.
7. Ownership; Proprietary Rights. MetalMiner℠ Benchmark and the Metal Benchmarking Report are owned by Price Dynamics. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Benchmarking Tools (the "Materials") provided by Price Dynamics or its parent company, affiliates, providers, partners and/or third-party licensors are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Benchmarking Tools are the property of Price Dynamics or its parent company, affiliates, providers, partners and/or third-party licensors. All trademarks, service marks, and trade names of the Benchmarking Tools are proprietary to Price Dynamics or its parent company, affiliates, providers, partners and/or third-party licensors. MetalMiner℠ is a service mark owned by Azul Partners, Inc. and used under license to Price Dynamics LLC. Price Dynamics and its licensors reserve all rights not expressly granted in these Terms.
8. DISCLAIMER. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 8, THE TERM "PRICE DYNAMICS" INCLUDES PRICE DYNAMICS LLC, ITS PARENT COMPANY, AFFILIATES, PROVIDERS, PARTNERS (INCLUDING AZUL PARTNERS, INC., D/B/A METALMINER℠), AND LICENSORS.
(a) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRICE DYNAMICS AND ITS AFFILIATES, PROVIDERS, PARTNERS, AND LICENSORS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH PRICE DYNAMICS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(b) "AS IS" AND "AS AVAILABLE" AND "WITH ALL FAULTS." YOU EXPRESSLY AGREE THAT USE OF THE BENCHMARKING TOOLS IS AT YOUR SOLE RISK. THE BENCHMARKING TOOLS AND ANY DATA, INFORMATION, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE BENCHMARKING TOOLS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. PRICE DYNAMICS DOES NOT WARRANT THAT THE DATA, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE BENCHMARKING TOOLS WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(c) ACCURACY. BECAUSE RELEVANT INFORMATION REGARDING METALS PRICES CHANGE FREQUENTLY, AND MAY DIFFER DEPENDING ON JURISDICTIONS OR PARTICULAR PRODUCTS AND ASSOCIATED SERVICES, THE INFORMATION CONTAINED ON THE BENCHMARKING TOOLS MAY NOT BE ACCURATE, AND PRICE DYNAMICS DOES NOT PROMISE OR GUARANTEE THAT INFORMATION FOUND ON THE BENCHMARKING TOOLS IS CORRECT OR COMPLETE. IT IS YOUR RESPONSIBILITY TO TAKE ALL THE NECESSARY STEPS TO ASCERTAIN THAT ANY INFORMATION YOU FIND ON THE BENCHMARKING TOOLS IS ACCURATE. PRICE DYNAMICS AND ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE OF THE BENCHMARKING TOOLS OR INFORMATION THEREIN IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
9. LIMITATION OF LIABILITY AND DAMAGES. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 9, THE TERM "PRICE DYNAMICS" INCLUDES PRICE DYNAMICS LLC, ITS PARENT COMPANY, AFFILIATES, PROVIDERS, PARTNERS (INCLUDING AZUL PARTNERS, INC., D/B/A METALMINER℠), AND LICENSORS.
(a) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE AND WILLFUL MISCONDUCT, SHALL PRICE DYNAMICS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR PROVISION OF FALSE OR MISLEADING BENCHMARK INFORMATION OR CONTENT, YOUR USE OF OR YOUR INABILITY TO USE THE BENCHMARKING TOOLS, OR ANY OTHER INTERACTIONS WITH PRICE DYNAMICS IN CONNECTION WITH THE BENCHMARKING TOOLS, EVEN IF PRICE DYNAMICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE AND WILLFUL MISCONDUCT, OR OTHERWISE) EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
(b) THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED BY SUPPLIERS AND THIRD PARTIES OTHER THAN PRICE DYNAMICS.
10. Indemnification. You agree to indemnify, save, and hold Price Dynamics and its parent company, affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (including Azul Partners, Inc., d/b/a MetalMiner℠) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of: (i) Your illegal/improper access to and use/misuse of the Benchmarking Tools; (ii) any violation by You of these Terms including any provision of false or misleading Benchmark Information and content; or (iii) any breach of the representations, warranties, and covenants made by You herein.
11. General Provisions.
(a) Governing Law. The Terms shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Ohio and the federal U.S. laws applicable therein, excluding its conflict of laws provisions, and without regard to the United Nations Convention on the International Sale of Goods. You agree that any action at law or in equity arising out of or relating to these Terms or relating to your usage of the Benchmarking Tools shall be filed only in the state or federal courts located in Loveland, Ohio and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
(b) Severability, Waiver and Entire Agreement. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. The failure of Price Dynamics to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Price Dynamics. The Terms, including any amendments or modifications made thereto, and any applicable Price Dynamics policies or procedures related to the Benchmarking Tools, posted on the MetalMiner℠ Benchmark site, or otherwise communicated to third parties by Price Dynamics, constitutes the entire, complete and exclusive statement of the agreement between You and Price Dynamics related to Your use of Benchmarking Tools and supersedes all prior oral or written proposals, prior Agreements and other prior communications between You and Price Dynamics concerning the Benchmarking Tools.
(c) Notice. Price Dynamics may provide You with notices, including those regarding changes to these Terms of Service, by email, regular mail, or postings on the Benchmarking Tools, at the contact information provided by You on the Benchmarking Tools. Notice will be deemed given after twenty-four hours of posting on the site or email is sent, or three days after the date of mailing.
(d) Assignment. The Terms (including any Guidelines) and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Price Dynamics without restriction. Any assignment attempted to be made in violation of the Term shall be null and void.