TERMS OF USE

Last Modified: May 24, 2019

These terms of use are entered into by and between you, an individual, organization or commercial entity (“you” or “your”) and Felux LLC ("Company", "we" or "us"). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these "Terms of Use"), govern your access to and use of www.Felux.com (the "Felux Platform" or the “site”), including any content, functionality and services offered on, through, or in connection with or through the Felux Platform, whether as a guest or a registered user. The Felux Platform is an online marketplace where users may buy or sell metals products and communicate with other users.

Please read the Terms of Use carefully before you start to use the Felux Platform. By using the Felux Platform or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, and incorporated by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Felux Platform.

This Felux Platform is offered and available to users who are 18 years of age or older. By using this Felux Platform, you represent and warrant that you are 18 years of age or older. If you are not 18 years or older, you must not access or use the Felux Platform.

Our Terms of Use includes the following topics.

1.         Purpose of the Felux Platform

The Felux Platform is a marketplace where sellers and buyers of metal can identify each other, communicate, and buy and sell metals. Felux is not a clearing-house or a party to any contract or agreement for the sale and purchase of the metals negotiated via the Felux Platform. Felux and the Felux Platform are not, and shall not be considered or categorized as, a metals or steel broker, agent, or trader for either party.

We encourage you to seek independent legal advice about which type of contract or agreement best suits your purposes. We do not warrant that any contracts or agreements facilitated by your use of the Felux Platform are complete, reliable, accurate, or appropriate for your individual circumstances. You agree that you enter into any commitment to purchase or sell metals via the Felux Platform with a buyer or seller, as applicable (each, a “Commitment”) relying entirely upon your own independent assessment of all relevant matters and do not rely upon any warranty, statement, or representation made or given by us or on our behalf. We encourage you to seek independent legal advice particular to your circumstances before making a Commitment via the Felux Platform. You agree to comply with all applicable laws, rules and regulations in connection with your sale or purchase of metal on the Felux Platform.

2.         Fees Payable to Felux

For each Commitment made between a seller and buyer, the seller shall pay Felux a percentage of the total Commitment (the “Commitment Fee”), as described in the Fee Schedule set out below. Felux also may invoice a buyer or seller for a portion, or the entirety, of the Commitment Fee for other activities or violations of the Felux Platform as described in the Fee Schedule, such as Stale Postings. “Stale Postings” include, but are not limited to, the following: (i) metals posted for sale for more than 60 days, (ii) a request for quotation (RFQ) that is posted with uncommitted weight after the “Bids Due By” date or (iii) a RFQ that is closed with weight unawarded. Felux reserves the right to change the Fee Schedule at any time. Users are bound by the Fee Schedule current at the date of that transaction. All fees must be paid in U.S. Dollars. Felux will invoice users on a weekly basis and payment is due net 30 days. Failure to pay fees when due may result in the termination or suspension of your access to all or part of the Felux Platform without prior notice.

3.         Use of the Felux Platform 

We reserve the right to withdraw or amend this Felux Platform, and any service or material provided on the Felux Platform, in our sole discretion without prior notice. We will not be liable if for any reason all or any part of the Felux Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Felux Platform, or to the entire Felux Platform, to registered users. You are responsible for (i) making all arrangements necessary for you to have access to the Felux Platform; and (ii) ensuring that all persons who access the Felux Platform through your internet connection are aware of these Terms of Use and comply with them.

To access the Felux Platform or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Felux Platform that all the information you provide on the Felux Platform is correct, current and complete. You agree that all information you provide to register with this Felux Platform or otherwise, including but not limited to through the use of any interactive features on the Felux Platform, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

4.         Account Security

You will be provided with a user name, password and other access information as part of our security procedures (the “Authentication Means”), and you must treat the Authentication Means as confidential, and you must not disclose them to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Felux Platform, portions of it or information accessible through the Felux Platform using your user name, password or other security information or any Authentication Means for any purpose whatsoever. You are solely responsible for all actions taken and transactions entered into or facilitated through the use of your Authentication Means.  You agree to notify us immediately of any unauthorized access to or use of your user name or password or other Authentication Means or any other breach of security. You also agree that you will exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time if, in our sole discretion, we determine that you have violated any provision of these Terms of Use.

5.         Intellectual Property Rights

The Felux Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and their design, selection and arrangement), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Felux Platform for your internal business purposes only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Felux Platform, except as follows:

You must not:

If you wish to make any use of material on the Felux Platform other than that set out in this section, please address your request to:  support@felux.com.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Felux Platform in breach of the Terms of Use, your right to use the Felux Platform will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Felux Platform or any content on the Felux Platform is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Felux Platform not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

6.         Trademarks

The Company name, the term Felux and the Felux logo, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Felux Platform are the trademarks of their respective owners.

7.         Prohibited Uses

You may use the Felux Platform only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Felux Platform:

Additionally, you agree not to:

You as a User acknowledge that there are restrictions imposed by the U.S. government, U.S. state governments, U.S. local governments, foreign governments, multilateral organizations and non-governmental organizations concerning certain persons, companies, countries and entities with which Users may not interact, and that interaction with these persons, companies, countries and entities may result in Users being non-compliant with applicable U. S., foreign and multilateral export and import laws and regulations.   Users acknowledge that failure to comply with all applicable export and import laws and regulations may cause Users to be liable for sanctions and penalties, both criminal and civil, for failure to comply with the applicable laws and regulations.  Users further acknowledge that they are responsible for complying with any and all laws and regulations regulating intrastate, interstate and international commercial transactions initiated, negotiated or concluded on this site.  Felux is not liable for any sanctions or penalties imposed on Users for the failure of Users to be informed of and compliant with any laws, regulations or procedures that affect participation on this site.  

8.         User Contributions

The Felux Platform may contain message boards, chat rooms, profiles, marketplace forums, bulletin boards, and other interactive features (collectively, "Interactive Services") that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Contributions") on or through the Felux Platform. All User Contributions must comply with the Content Standards. Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Felux Platform, you grant us, our affiliates and our service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material.

You represent and warrant that:

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and that you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Felux Platform.

9.         Monitoring and Enforcement; Termination

We have the right to:

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Felux Platform. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

You may refer any inaccuracies or concerns to the Company by email addressed to support@felux.com.   However, we cannot and do not undertake to review material before it is posted on the Felux Platform, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

10.         Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:

11.         Copyright Infringement

The Company may terminate the user accounts of infringers without notice.

It is our policy to respond promptly to any claim that content posted on the Site infringes the copyright of any person.  We will use reasonable efforts to investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (“DMCA”) and other applicable law where we believe an infringement has taken place.  This may include removal of the accused content, disabling access to the accused content, or disabling or terminating accounts associated with the accused content.

To notify us of your claim that content posted to the Felux Platform infringes your copyright or that of another person or entity, please provide us with a written notice with a subject line of “DMCA Takedown Request” by email to support@felux.com or by U.S. mail to 6001 Euclid Ave. Suite #150 Cleveland, OH 44103 Please include in your notice all of the following information:

Upon receipt of a valid and complete notice, we will remove the material and make a good faith attempt to contact the user who uploaded the material by email.. We review the notice submitted by the copyright holder.  We will notify the user and reply to the copyright holder to let him or her know we’ve taken action.  If the notice is complete and valid, then we remove the content.  If the party who posted the content believes he or she has rights to use the content or that the notice was submitted incorrectly by the complainant then that party may  submit a counter notice. We will review the counter notice for completeness. We also reply to the site owner and notify the copyright holder, providing the copyright holder with a copy of the counter notice.  If the copyright holder does not take further legal action within 10 business days of the submission of the counter notice, then we restore the content.

12.         User Ratings

You acknowledge and agree that users publish and request the Company to publish on their behalf information on the Felux Platform about the user, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that users voluntarily submit to the Company and does not constitute and will not be construed as an introduction, endorsement, or recommendation by the Company; the Company provides such information solely for the convenience of its users.

You acknowledge and agree that user feedback benefits the marketplace, all users, and the efficiency of the Felux Platform and you specifically request that the Company post composite or compiled feedback about users, including yourself, on the Felux Platform. You acknowledge and agree that feedback results for you, including your user rating, wherever referenced, and other User Contributions highlighted by the Company on the site or otherwise (“Composite Information”), if any, will include user comments, user ratings, indicators of user satisfaction, and other feedback provided exclusively by other users. You further acknowledge and agree that the Company will make Composite Information available to other users, including composite or compiled feedback. You agree not to use the Composite Information to make any credit, credit valuation, underwriting, or other similar decision about any other user.

The Company does not generally investigate any remarks posted by users or other user Contributions for accuracy or reliability and does not guarantee that User Contributions is accurate. You are solely responsible for your User Contributions, including the accuracy of any User Contributions, and are solely responsible for any legal action that may be instituted by other users or third parties as a result of or in connection with your User Contributions if such User Contributions is legally actionable or defamatory.  The Company is not legally responsible for any feedback or comments posted or made available on the site by any users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect users from abuse, the Company reserves the right (but is under no obligation) to remove posted feedback or information that, in the Company’s sole discretion, violates the Terms of Use or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of the Company. You acknowledge and agree that you will notify the Company of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, the Company may rely on the accuracy of such information.

13.        Reliance on Information Posted

We do not warrant the accuracy, completeness or usefulness of information presented on or through the Felux Platform. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Felux Platform, or by anyone who may be informed of any of its contents.

We may provide complimentary onboarding services or other services to you in connection with your use of the Felux Platform. If we input content on your behalf, you agree that such content shall be considered a “User Contribution” posted by you. We are not responsible for the accuracy or completeness of such content. It is your responsibility to review and evaluate the accuracy and completeness of such content. We disclaim all liability and responsibility arising from any such services provided to you.

This Felux Platform includes content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and reporting services. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

14.         Information About You and Your Visits to the Felux Platform

All information we collect on this Felux Platform is subject to our Privacy Policy. By using the Felux Platform, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

15.        Linking to the Felux Platform and Social Media Features

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our prior written consent.

This Felux Platform may provide social media features that enable you to:

You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with, and otherwise in accordance with any terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right in our sole discretion to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.

16.        Links from the Felux Platform

If the Felux Platform contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Felux Platform, you do so entirely at your own risk and subject to the terms and conditions of use for those websites.

17.        Geographic Restrictions

The owner of the Felux Platform is based in the state of Ohio in the United States. We make no claims that the Felux Platform or any of its content is accessible or appropriate outside of the United States. Access to the Felux Platform may not be legal by certain persons or in certain countries. If you access the Felux Platform from outside the United States, you do so on your own initiative and are responsible for compliance with all local laws.

18.        Disclaimer of Warranties

  You understand that we cannot and do not make any guarantees or warranties about the truth and/or accuracy of a listing, RFQ or other advertisements, the suitability, quality, and/or existence of listed items, and/or the ability of users to actually enforce or complete a transaction. Felux does not warrant that sellers are the legal owners of the steel listed on the Felux Platform.

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Felux Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY, NOR ITS EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS, DIRECTORS, AFFILIATES, OR THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “COMPANY REPRESENTATIVES”), MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY, NOR THE COMPANY REPRESENTATIVES, REPRESENT OR WARRANT THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

19.        Limitation on Liability

IN NO EVENT WILL THE COMPANY OR THE COMPANY REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

20.         Indemnification

You agree to defend, indemnify and hold harmless the Company and the Company Representatives from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including attorneys' fees) arising out of or relating to your violation of these Terms of Use or any applicable law, regulation or rule or your use of the Felux Platform, including, but not limited to, your User Contributions, any use of the Felux Platform's content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Felux Platform.

21.        Governing Law

All matters relating to or arising out of the Felux Platform and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction).

22.        Arbitration

If a dispute arises between you and the Company or the Company Representatives, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, the Company, and the Company Representatives agree that any claim, dispute, issue, or controversy that arises out of or relates to these Terms of Use, your relationship with the Company, the termination of your relationship with the Company, or the Felux Platform, (each, a “Claim”) shall be resolved in accordance with this Section 23 (sometimes referred to as the “Arbitration Provision”).

Before serving a demand for arbitration of a Claim, you and the Company agree to first notify each other of the Claim.  You agree to notify the Company of the Claim at Attn: Legal, 6001 Euclid Ave. Suite #150 Cleveland, OH 44103 or by email to support@felux.com, and the Company agrees to provide to you a notice at your email address on file (in each case, a “Notice”).  You and the Company shall first seek informal voluntary resolution of the Claim.  Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or the Company, as applicable, may evaluate the Claim and attempt to informally resolve the Claim.  Both you and the Company will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.

In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, the Company, and the Company Representatives agree that any Claim shall be resolved in Cleveland, Ohio by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury.  JAMS may be contacted at www.jamsadr.com.

  1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION

This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with the Company ends. This Arbitration Provision is intended to apply to the resolution of Claims that otherwise would be resolved in a court of law or before a forum other than arbitration.  If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.

Except as otherwise provided herein, arbitration will be conducted in Cleveland, Ohio in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect.  Arbitration of disputes brought by a user that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the user is located. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures”. Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator.  Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.

You and the Company will follow the applicable JAMS rules with respect to arbitration fees. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court subject to paragraph 19 of these Terms of Use. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.

  1. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION

This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims.  Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision.  All such matters shall be decided by an arbitrator and not by a court. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.  If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and the Company agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.

  1. CLASS AND COLLECTIVE WAIVER

This Arbitration Provision affects your ability to participate in class or collective actions.  Both you and the Company agree that any Claim shall be subject solely to arbitration on an individual basis only, and not on a class or collective basis on behalf of others.  There shall be no right or authority for any Claim to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”).  Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.  In any case in which (1) the Claim is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. However, the Company may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.

  1. TIME LIMITATION ON CLAIMS

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

23.         Waiver and Severability

No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by an arbitrator, a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

24.         Entire Agreement

The Terms of Use and our Privacy Policy, and referenced policies or documents , constitute the sole and entire agreement between you and the Company with respect to the Felux Platform and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Felux Platform.

25.         Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Felux Platform thereafter. However, any changes to the dispute resolution provisions will not apply to any Claims for which the parties have actual notice on or prior to the date the change is posted on the Felux Platform. Your continued use of the Felux Platform following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

26.         Your Comments and Concerns

This website is operated by Felux Inc. All feedback, comments, requests for technical support and other communications relating to the Felux Platform should be directed to: support@felux.com.


FEE SCHEDULE

Commitment Fee:

0.875% of the Total Committed Dollars, not to exceed $100,000 for any single Commitment.

Invoicing Schedule:

  1. For Spot RFQ orders, the Commitment Fee is invoiced the week following the Estimated Arrival/Pickup Date.

  1. For Contract RFQ orders, the fee is broken into flat weekly installations over the life of the contract.

EXAMPLE: A contract with $20,000 of total committed dollars will have a fee equal to $20,000 * 0.875% = $175. If the contract begins on 01/01/2019 and ends on 04/30/2019, then the contract spans 18 calendar weeks in total. The weekly invoice billed to the SELLER will be $175/18 weeks = $9.72.

  1. For Material for Sale orders, the fee is invoiced the week following the Estimated Arrival/Pickup Date.

Payment Terms:

Invoices are due within 30 days of receipt

Payment Methods:

Check, ACH or Wire

Currency:

All fees must be paid in U.S. Dollars

Stale Postings*:

0.875% * (listed opportunity weight * $0.45 cents a pound)

*may be assessed in the discretion of the Company

DEFINED TERMS

Commitment:

A Commitment results when a buyer and a seller make an agreement to purchase metals via the Felux Platform.

Commitment Fee:

Sellers are charged a fee of 0.875% of the Total Committed Dollars for each Commitment. The Commitment Fee shall not exceed $100,000 for any single Commitment.

Order Types:

Spot RFQ Order means an order where the user has selected “BUYING” in the Opportunity Type field and also selected “SPOT” in the Transaction Type field when creating a new opportunity on the site.

Contract RFQ Order means an order where the user has selected “BUYING” in the Opportunity Type field and also selected “CONTRACT” in the Transaction Type field when creating a new opportunity on the site.

Material for Sale Order means an order where the user has selected “SELLING” in the Opportunity Type field when creating a new opportunity on the site.

Stale Postings Include but are not limited to the following:

  1. RFQs that are still posted with uncommitted weight after their Bids Due by Date
  2. RFQs that were closed with weight still unawarded
  3. Material for sale that has been posted for longer than 60 days

Total Committed Dollars:

Means the sum of the charge of each product committed to, calculated as ($/lbs) * (Pounds Committed) resulting from a Commitment.