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These Website and Transaction Terms and Conditions (these “Terms and Conditions”) govern use of the website accessible at www.BullionMax.com (the “Website”) and all transactions between you and BullionMax, LP, a Delaware limited partnership (“BullionMax”). By using the Website, placing an order for or otherwise purchasing any product sold by BullionMax or selling any product to BullionMax, you are agreeing to be bound by these Terms and Conditions.
THESE TERMS AND CONDITIONS INCLUDE IMPORTANT LEGAL PROVISIONS THAT DEFINE YOUR RIGHTS AND OBLIGATIONS REGARDING YOUR USE OF THE WEBSITE, ALL ORDERS YOU PLACE WITH BULLIONMAX AND ALL TRANSACTIONS BETWEEN YOU AND BULLIONMAX, WHETHER CONDUCTED VIA THE WEBSITE, BY TELEPHONE OR OTHERWISE. PLEASE READ THESE TERMS AND CONDITIONS, INCLUDING THE PRIVACY AND OTHER DOCUMENTS INCORPORATED HEREIN, CAREFULLY PRIOR TO USING THE WEBSITE OR ENTERING INTO ANY TRANSACTION WITH BULLIONMAX. YOUR USE OF THE WEBSITE OR ENTRY INTO ANY TRANSACTION WITH BULLIONMAX CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
2. Right to Amend. You acknowledge and agree that BullionMax may amend these Terms and Conditions at any time and from time to time, without notice to you. Following any such amendment, these Terms and Conditions, as so amended, shall govern your use of the Website and any subsequent transactions and interactions with BullionMax. Your use of the Website or entry into any transaction with BullionMax following such amendment constitutes your acceptance of these Terms and Conditions as so amended.
3. Website Limitations. The Website should not be considered a comprehensive source of information regarding Precious Metals (as defined below) or any of the other products being sold and bought by BullionMax (collectively with the Precious Metals, the “Products”). It is your responsibility to educate yourself regarding Precious Metals and such other Products prior to entering into any transaction with BullionMax. Your reliance upon any information on the Website is solely at your own risk. For more information, please see our Risk Disclosure Statement.
5. Protecting Your Account; Account Suspension or Termination.
(a) You are responsible for the accuracy and completeness of all information you provide with respect to Your Account. You acknowledge and agree that you must update such information as required from time to time to maintain the accuracy of all information in Your Account. You agree not to share Your Account with any other individual or entity and to keep Your Account secure from unauthorized access. You are responsible for the confidentiality of Your Account, including your user login and password, and may not share your user login or password with any third parties. You are required to immediately notify BullionMax of any unauthorized use or suspicious activity in Your Account of which you have knowledge. BullionMax will not be liable for any loss or other damages that may result from your failure to protect your login information, including your password, or any other failure to protect the confidentiality of Your Account, including, without limitation, any unauthorized transaction using Your Account, unless such unauthorized transaction results from a wrongful act or omission on the part of BullionMax. Subject to the foregoing exception, you agree to accept full responsibility for use of Your Account, whether authorized or unauthorized.
(b) In the event of your failure to comply with any provision of these Terms and Conditions, BullionMax may suspend or terminate Your Account at any time, without prior notice to you. Any such suspension or termination shall not affect your legal obligations under these Terms and Conditions or any right of BullionMax to exercise any other legal remedy against you.
6. Your Representations and Warranties. By using the Website, you hereby represent and warrant to BullionMax, on a continuing basis, that: (a) you are at least 18 years old; (b) you have the legal capacity to enter into these Terms and Conditions and to comply with them; (c) you have sufficient experience and knowledge to make informed decisions with respect to purchase and sale transactions with BullionMax; and (d) all information that you provide to BullionMax and the Website, including in connection with the creation of Your Account and the submission of any User Feedback (as defined below), is and shall remain accurate in all respects.
7. Rules Regarding Use. As a condition to using the Website and the services provided thereby (the “Services”), you agree to comply with all applicable local, state, national, provincial and international laws, treaties and regulations. You further agree not to (a) gain or attempt to gain unauthorized access to the Website (including any restricted sections thereof), the Services, the account of any other user of the Website or any related system or network, including by impersonating any other Website user or other person or entity or by creating a false identity or account; (b) establish a link to the Website in such a way as to suggest to any third party any form of association, approval or endorsement on the part of BullionMax; (c) falsely imply any sponsorship or other relationship with BullionMax except that of customer and vendor; (d) use the Website, the Services or Your Account in any unlawful manner, including, without limitation, in violation of any person’s privacy rights, to abuse, harass or defame any individual or entity, to send unsolicited communications or to store or transmit any content that infringes upon any third party’s intellectual property rights; (e) use the Website, the Services or Your Account to post, transmit, upload, link to, send or store any content that is unlawful, abusive, obscene, racist or discriminatory; (f) use the Website, the Services or Your Account to post, transmit, upload, link to, send or store any viruses, cancel bots, malware, Trojan horses, time bombs or any other similar harmful software or any tracking cookies; (g) use the Website, the Services or your Account in any manner that interferes with or disrupts the integrity or performance of the Website, the Services or any related system or network or attempt to damage or interfere with any of the foregoing by any method, including, without limitation, flood pings, denial of service attacks, packet or IP spoofing, forged routing or other information or similar methods or technology; (h) attempt to decipher, decompile, reverse engineer, disassemble, reproduce or copy or otherwise access or discover the source code or underlying program of any software used in or in connection with the Website or any Services; (i) copy, display, distribute, create derivative works from or otherwise use in any manner the Website or any of the contents thereof; (j) use or try to use your Account, the Website or any Services in violation of these Terms and Conditions; or (k) assist any third party in any of the foregoing.
8. Authorization to Contact You. By checking the contact authorization box when you [create an account with] OR [submit an order to] BullionMax, you hereby expressly authorize BullionMax, and its designees and agents, to contact you as described below.
(a) Do Not Call Registry Waiver. You hereby expressly authorize BullionMax to telephone you at any number you provide (and any updated or additional numbers you may provide in the future), regardless of whether or not your telephone number appears in the "National Do Not Call Registry,” established pursuant to 16 CFR§ 310.4(b)(1)(iii)(B).
(b) Telephone Consumer Protection Act Authorization. You hereby expressly agree that BullionMax may call you and/or send text messages and/or send emails to you at any telephone number or email account you provide (and any updated or additional numbers or email accounts you may provide in the future), including wireless telephone numbers (commonly known as mobile or cellphone numbers) that could result in charges to you. The manner in which these calls, text messages or emails are made to you may include, without limitation, the use of prerecorded/artificial voice messages and/or automatic telephone dialing systems. You may revoke consent at any time and by any reasonable means, including by texting “Stop” in response to any text message you receive, emailing a stop request to [email protected] (which does not bounce back) or mailing your request to BullionMax, LP, 3440 W Carson St, Suite 200, Torrance, CA 90503. If you email or write, please clearly identify yourself and what methods, number(s) or email address(es) that BullionMax should stop using to communicate with you, if less than all.
9. BullionMax Rights in Website and Related Intellectual Property; Limited License to Use Website.
(a) Except for the limited license granted to you to use the Website as described in the following paragraph, BullionMax retains the exclusive right, title and interest in and to all intellectual property, including, without limitation, all patents, inventions, copyrights, trademarks, trade names, service marks, trade dress, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights, in or related to the Website, the contents thereof and the Services. All such intellectual property and intellectual property rights are protected by applicable law, including, without limitation, applicable copyright laws and treaties throughout the world. You hereby acknowledge and agree that you are not permitted to reproduce the Website or any contents of the Website in any manner, prepare derivative works from the Website or any contents of the Website or use the Website or any contents of the Website for any purpose other than entering into lawful transactions with BullionMax.
(b) BullionMax hereby grants you a limited, revocable, non exclusive, royalty free, non sublicensable and non assignable license to use the Website for the purpose of conducting purchase and sale transactions with BullionMax. Any violation by you of these Terms and Conditions or use by you of the Website for a purpose beyond such limited purpose will result in the automatic termination of the foregoing license to you, without any need for any further action on the part of BullionMax.
10. Trademarks, Logos and Other Intellectual Property. The BullionMax word marks and logos and any BullionMax slogans used in or on the Website are trademarks of BullionMax and may not be copied, imitated or used, in whole or in part, without the prior written permission of BullionMax. You may not use any metatags or any other "hidden text" utilizing the name “BullionMax" or any other name, trademark or product or service name of BullionMax without the prior written permission of BullionMax. The look and feel of the Website, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark and/or trade dress of BullionMax and may not be copied, imitated or used, in whole or in part, without the prior written permission of BullionMax. All other trademarks, trade names, product names and company names and logos mentioned in or on the Website are the property of their respective owners.
11. User Feedback. In connection with your use of the Website and/or any transactions you may enter into with BullionMax, you may be requested or permitted to provide suggestions, recommendations, reviews or other feedback on the Website, any Products offered for sale by BullionMax and/or the Services (collectively, “User Feedback”). You represent and warrant to BullionMax that any User Feedback that you submit to the Website will be accurate, will be in compliance with all applicable laws and will not violate the intellectual property or other rights of any third parties. By providing any User Feedback to BullionMax, you thereby grant to BullionMax an irrevocable, perpetual, worldwide, royalty free, transferable and sub licensable to incorporate into the Website or the Services, reproduce, display, publicize and otherwise use such User Feedback for any purpose deemed reasonable by BullionMax in connection with the Website, the Products and the Services. In the event any User Feedback is in the form of a Product, company or website review or endorsement, such license shall include the right to publish such User Feedback on the Website and/or in any promotional materials of BullionMax and to use your name in connection therewith. You hereby agree that, by submitting any User Feedback, you irrevocably and fully waive any and all moral, privacy rights, rights of publicity and any other rights you may have in and to such User Feedback.
12. Risky Nature of Investments; Assumption of Risk. All investments, including investments in Precious Metals, involve some degree of risk and are affected by numerous economic factors. You hereby acknowledge and agree that you assume the risk of all decisions regarding purchase and sale transactions with BullionMax, and that all such decisions are based on your own research, prudence and judgment. BullionMax makes no recommendation with respect to any such transactions and makes no guarantee or representation regarding your ability to profit from any transaction or the tax implications of any transaction. BullionMax recommends that you consult your investment or financial advisor prior to entering into any purchase or sale transaction with BullionMax. For more information, please visit www.BullionMax.com.
13. Reports, Evaluations and Other Guidance on Website. BullionMax from time to time may include on the Website information such as articles, reports, alerts and price evaluations. You acknowledge and agree that such information is provided “as is” and for general background only. You acknowledge and agree that you may not and will not rely upon any such information in making transaction decisions.
14. DISCLAIMERS BY BULLIONMAX.
BULLIONMAX PROVIDES THE WEBSITE AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. BULLIONMAX DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE USE THEREOF OR ANY INFORMATION ON IT (A) WILL BE UNINTERRUPTED OR SECURE; (B) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS; (C) WILL MEET THE REQUIREMENTS OF ANY USER; (D) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE.
BULLIONMAX MAKES NO WARRANTIES WITH RESPECT TO THE WEBSITE, THE SERVICES AND THE PRODUCTS OTHER THAN THOSE EXPRESS WARRANTIES CONTAINED IN THESE TERMS AND CONDITIONS AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
BULLIONMAX SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE TRANSMISSION, DELIVERY OR EXECUTION OF ANY ORDER YOU MAY PLACE OR TRY TO PLACE DUE TO ANY TECHNICAL ISSUE OR ANY OTHER CAUSE.
BULLIONMAX DISCLAIMS ALL RESPONSIBILITY FOR ALL USER FEEDBACK THAT MAY BE DISPLAYED ON THE WEBSITE AND FOR ALL ANY OTHER THIRD PARTY CONTENT AND THIRD PARTY LINKS THAT MAY BE POSTED ON THE WEBSITE.
15. NO LIABILITY FOR CERTAIN DAMAGES. IN NO EVENT, AND UNDER NO LEGAL THEORY (WHETHER CONTRACT, TORT OR OTHERWISE), SHALL BULLIONMAX OR ANY OTHER MEMBER OF THE BULLIONMAX GROUP (AS DEFINED IN SECTION 17 (INDEMNIFICATION)) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS OR WAGES OR LOSS OF BUSINESS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Cap on Damages. Notwithstanding anything to the contrary set forth in these Terms and Conditions, except where prohibited by applicable law, (a) the liability of the BullionMax Group to you with respect to any claim related to any single transaction in Precious Metals between you and BullionMax shall be limited to the amount actually paid by you for the Precious Metals in dispute (if the Precious Metals are returned to BullionMax) or the Spread (as defined below) on such transaction (if the Precious Metals are not returned to BullionMax); (b) the liability of the BullionMax Group to you with respect to any claim related to any single transaction involving any other Product shall be limited to the amount actually paid by you for the Product; and (c) the aggregate liability of the BullionMax Group to you with respect to all claims you may have against the members of the BullionMax Group shall not exceed the lesser of the aggregate purchase amounts for all transactions between you and BullionMax and $1,000. The foregoing limitations of liability reflect an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with these Terms and Conditions.
You agree to defend, indemnify and hold BullionMax and its subsidiaries and other affiliates, and their respective owners, partners, managers, members, directors, officers, employees, agents and other representatives (collectively, the “BullionMax Group”) harmless from and against any and all claims, liabilities, actions, demands, losses, damages, penalties, fines and other costs and expenses (including, without limitation, reasonable attorneys’ fees, experts’ fees, investigation costs, remediation costs and settlement costs) incurred by any of them the extent arising out of or relating to (a) use of Your Account, whether authorized or unauthorized; (b) your use of the Website and the Services; (c) any User Feedback you submit or other content and information you provide to the Website and/or BullionMax; (d) any negligent or other wrongful act or omission in connection with your use of the Website or the Services and/or your purchase or sale of any Products; (e) except where prohibited by applicable law, any market loss incurred in connection with any order placed by you; (f) breach of any representation and warranty made by you to BullionMax; (g) any violation by you of these Terms and Conditions; and/or (h) your violation of any applicable law or any intellectual property or other rights of any third party.
18. Export Compliance. You agree to comply with all applicable export laws, rules and regulations, including, without limitation, the Export Administration Act (50 U.S.C. App. §§ 2401 2420), the Export Administration Regulations (15 C.F.R. 730 et seq.), the Customs Laws of the United States (19 U.S.C. § 1 et seq.), the U.S. Commerce Department antiboycott regulations (15 C.F.R. 560) and the U.S. Treasury Department antiboycott requirements (26 U.S.C. § 999) (collectively, “Export Laws”). Without limiting the generality of the foregoing, you agree not to directly or indirectly export, re export or release any Product purchased directly or indirectly from BullionMax to any country to which, or person to whom, such export, re export or release is prohibited by any Export Law.
19. No Waiver. No delay or failure on the part of BullionMax in exercising any legal right or remedy it may have against you shall be deemed to constitute a waiver of such right or remedy. In addition, no partial exercise by BullionMax of any legal right or remedy it may have against you shall preclude the further exercise by BullionMax of such right or remedy or its exercise of any other right or remedy it may have against you.
20. No Assignment. You may not assign or delegate these Terms and Conditions or any of your rights or obligations hereunder. BullionMax has the unlimited right to assign or delegate these Terms and Conditions and any or all of its obligations and rights hereunder. These Terms and Conditions shall be binding upon and inure to the benefit of you and BullionMax and your and its respective permitted assignees and legal representatives.
21. Force Majeure. You expressly acknowledge and agree that BullionMax will not be liable to you under any legal theory for any failure to perform any obligation to you, whether under these Terms and Conditions or otherwise, which failure is caused directly or indirectly by a force majeure event, including, without limitation, any act of God, fire; war, insurrection, riot, epidemic or pandemic, governmental action or refusal to act, communications failure or power failure, any exchange or market ruling or any other cause beyond the reasonable control of BullionMax.
22. Governing Law. Any controversy or claim arising out of or relating in any way to (a) these Terms and Conditions; (b) the enforcement or interpretation hereof; (c) an alleged breach, default or misrepresentation in connection with any of the provisions hereof; or (d) any transaction, communication or interaction between You and BullionMax shall be governed by California law, without regard to its conflicts of law provisions. Notwithstanding the foregoing, the provisions of Section 23, including the requirement to arbitrate claims on an individual basis, shall be governed by and interpreted in accordance with the Federal Arbitration Act.
23. Resolution of Disputes; Waiver of Right to Jury Trial; Agreement to Arbitrate. These Terms and Conditions contain a binding, individual arbitration agreement and class action waiver. This means that any claim must be arbitrated on an individual basis pursuant to the terms set forth below; that claims of different persons cannot be combined or aggregated, and that you are waiving your right to file a lawsuit in court and to have a jury decide the dispute. Please read all the provision of this Section 23 carefully and consult a legal advisor if you have any questions.
(a) Any controversy or claim arising out of or relating to the Website or these Terms and Conditions, their enforcement or interpretation, or because of an alleged breach, default or misrepresentation in connection with the Website or any provision of these Terms and Conditions, or arising out of or relating in any way to any transaction, communication or interaction between you and BullionMax or any other member of the BullionMax Group (each, a “Dispute”), shall be submitted to final and binding individual arbitration in accordance with the following provisions in order to establish and gain the benefits of a speedy, impartial and cost effective dispute resolution procedure.
(b) Except as otherwise prohibited by applicable law, any Dispute will be decided exclusively by final and binding arbitration, before a single neutral arbitrator (the “Arbitrator”), in Los Angeles, California, utilizing the applicable JAMS rules, as described below (the “JAMS Rules”). Notwithstanding the immediately preceding sentence, if required by the JAMS Rules or any applicable JAMS minimum standards, or if the Arbitrator concludes that it would be a financial or other hardship for you to participate in an arbitration in Los Angeles, the Arbitrator shall have the authority to hold the hearing, or any part thereof, in the county where you live or to permit you to attend via videoconference, Skype, Facetime, telephonic or similar virtual participation.
(c) The arbitration shall be administered by JAMS pursuant to its comprehensive arbitration rules and procedures (if the amount in controversy exceeds $250,000) or its streamlined arbitration rules and procedures (if the amount in controversy is less than or equal to $250,000). These rules may be accessed at https://www.jamsadr.com/adr-rules-procedures/.
(d) To the fullest extent permitted by applicable law, and notwithstanding anything else in these Terms and Conditions, you agree that any Dispute shall be decided by the Arbitrator on an individual basis and not on a class, collective or representative basis. You further acknowledge and agree that the Arbitrator shall not have the authority or jurisdiction to hear the arbitration as a class, collective or representative action or to join or consolidate causes of action of different parties into one proceeding.
(e) The Arbitrator may award any form of remedy or relief (including injunctive relief and specific performance) that would otherwise be available in court. Any award pursuant to the arbitration shall be accompanied by a written opinion of the Arbitrator setting forth the reason(s) for the award, which shall be delivered within 30 days of the close of the hearing on the arbitration (unless extended by mutual agreement of you and BullionMax). The award rendered by the Arbitrator shall be conclusive and binding upon you and the BullionMax Group, and judgment upon the award may be entered, and enforcement may be sought in, any court of competent jurisdiction.
(f) Subject to the JAMS Rules and any applicable JAMS minimum standards, the arbitration fees, together with other expenses of the arbitration incurred or approved by the Arbitrator, shall be divided equally between you and BullionMax.
(g) YOU UNDERSTAND THAT, ABSENT THESE TERMS AND CONDITIONS, EACH OF YOU AND THE MEMBERS OF THE BULLIONMAX GROUP WOULD HAVE THE RIGHT TO SUE THE OTHER IN COURT AND TO HAVE ANY DISPUTE DECIDED PURSUANT TO A JURY TRIAL, BUT, BY THESE TERMS AND CONDITIONS, YOU ARE GIVING UP THAT RIGHT AND AGREEING TO RESOLVE BY ARBITRATION ANY AND ALL DISPUTES.
(h) You and BullionMax agree to treat as strictly confidential all information concerning any arbitration proceeding, including the pleadings, the hearing and any arbitration award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, confirmation and enforcement proceedings or a judicial challenge to an award or its enforcement, or unless otherwise required by applicable law or judicial decision. You and BullionMax agree that breach of this confidentiality provision would irreparably harm the non breaching party, and further agree that any such breach shall entitle the non breaching party to seek injunctive relief and/or compensatory damages for the breach (without the necessity of posting a bond or other security).
(i) You may elect to opt out and exclude yourself from the final, binding arbitration procedure and class action waiver specified in these Terms and Conditions by sending, for postmarking within 15 days of your creation of Your Account, to BullionMax, LP, 3440 W Carson St, Suite 200, Torrance, CA 90503, a letter stating (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding arbitration procedure and class action waiver. You are not required to send the letter by registered or certified mail, with return receipt requested, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove that the request was postmarked within the 15 day deadline. In the event of an effective exclusion request, BullionMax reserves the right, exercisable in its sole and absolute discretion, to rescind any purchase or sale transaction with you. In the event of an effective exclusion request, all other terms of these Terms and Conditions shall continue to apply.
(j) Notwithstanding the other provisions of this Section 23, you agree that BullionMax will have the right to seek injunctive or other equitable relief in any state or federal court located in Los Angeles County, California, to enforce these Terms and Conditions or prevent an infringement of a third party’s rights, without being required to post a bond or other security or prove actual damages. In the event BullionMax seeks such equitable relief, you hereby irrevocably submit to the personal jurisdiction of such court and waive all objections to the jurisdiction.
24. Prevailing Party. In the event of any Dispute, and whether such Dispute is resolved via arbitration, litigation or otherwise, the prevailing party (as that term is commonly defined by the prevailing common and/or statutory law in the applicable jurisdiction) shall be entitled to recover its costs of suit, which costs shall be specifically defined to include all reasonable attorneys’ fees incurred by the prevailing party related to the Dispute. In the event a party fails to proceed with arbitration, unsuccessfully challenges the Arbitrator’s award or fails to comply with an award, the other party is entitled to costs of enforcement, including reasonable attorneys’ fees incurred in having to compel arbitration or defend or enforce the award.
25. Time Limit to File Claims. You expressly agree that, except where applicable law prescribes a shorter applicable statute of limitation, or prohibits shortening the otherwise applicable longer statute of limitations, you must file any claim or legal action of any kind arising in connection with or relating in any way to your purchases from or sales to BullionMax, any other conduct (or failure to act) on the part of any member of the BullionMax Group or you or the Products, the Services, the Website and/or these Terms and Conditions within one year and one day after the purchase or sale or other event, circumstances or other facts giving rise to the claim or legal action. Notwithstanding the foregoing, if the law of the applicable jurisdiction has a “discovery rule,” whereby accrual of the claim is deferred, which is applicable to one or more claims, then the one year and one day (or shorter, if applicable) limitation period specified herein shall begin running from the date of accrual for such claim or claims as determined by the law of the applicable jurisdiction. If this Section 25 is determined to be unenforceable as to any particular claim or claims under the law of the applicable jurisdiction, it shall remain fully enforceable as to all other claims.
(a) With the exception of the class action waiver in Section 23(d), which is essential to the agreement to arbitrate, if any provision of these Terms and Conditions is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality or unenforceability, or, if that is not possible, such provision shall, to the extent of such invalidity, illegality or unenforceability, be severed from these Terms and Conditions, and the remaining provisions of these Terms and Conditions shall remain in effect.
(b) If the class action waiver in Section 23(d) is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable to any extent, then the entirety of the dispute resolution procedures specified in Section 23 of these Terms and Conditions shall be void and of no force and effect.
27. Survival. The provisions of these Terms and Conditions shall survive any termination of Your Account or of any order or other transaction between you and BullionMax, regardless of the reason for such termination:
28. Notices. Except as otherwise expressly provided in these Terms and Conditions, including, without limitation, Section 8 (Authorization to Contact You), (a) all notices required or permitted under or in connection with these Terms and Conditions must be in writing; (b) you shall send all notices to BullionMax by U.S. first class mail, postage prepaid, addressed to BullionMax, LP, 3440 W Carson St, Suite 200, Torrance, CA 90503; and (c) BullionMax shall send all notices to you by U.S. first class mail, postage prepaid, addressed to you at the then current mailing address in Your Account.
29. Nature of Relationship with BullionMax. The relationship between BullionMax and you is solely that of buyer and seller. No other relationship, including, without limitation, that of agent and principal, employer and employee, franchisor and franchisee, joint venturers or partners, exists between BullionMax and you.
30. Further Assurances. You agree to execute and deliver such other documents and take such other actions as BullionMax may reasonably request in connection with any transaction between BullionMax and you or as may be required for you to fully perform your obligations under these Terms and Conditions or for BullionMax to fully exercise its rights under these Terms and Conditions.
31. Third Party Beneficiaries. The members of the BullionMax Group are intended third party beneficiaries of the indemnification, limitation of liability, dispute resolutions and claim time limit provisions of these Terms and Conditions.
32. Entire Agreement. These Terms and Condition, together with any Accepted Orders, constitute the entire agreement between you and BullionMax with respect to your use of the Website and any transaction between you and BullionMax and supersede any prior or contemporaneous agreement between you and BullionMax with respect to such subject matter.
33. Reservation of Rights. Any rights not expressly granted by the foregoing provisions of these Terms and Conditions are reserved to BullionMax.
ADDITIONAL PROVISIONS REGARDING ORDERS, TRANSACTIONS AND RETURNS
34. Certain Definitions.
Precious Metals. “Precious Metals” means, collectively, any precious metal, in any form, that is the subject of a transaction between a customer and BullionMax, including, without limitation, Bullion, Proof, Semi Numismatic, Numismatic and Fixed Mintage coins and bars.
Bullion. “Bullion” generally refers to Precious Metals whose price is primarily determined by the content and purity of the piece.
Fixed Mintage. “Fixed Mintage” refers to a specific type of Precious Metal for which production/mintage has been or will be capped by the originating mint. The production/minting cap may apply to the coin itself (for example, a limited edition coin) or just the year of production. The amount of the cap is set by the mint or party responsible for procuring its mintage. Fixed mintages vary in quantity and can range from one unit to hundreds of thousands of units (or even more).
Numismatic. “Numismatic” generally refers to a Precious Metal that is scarce or otherwise difficult to procure and, as a result, carries a price premium that reflect such scarcity. The price of a Numismatic coin often has very little to do with the purity or content of the coin; this classification generally is reserved for gold coins that were minted before 1933 and silver coins that were minted before 1965.
Proof. “Proof” generally refers to a specially made coin distinguished by sharpness of detail and usually with brilliant, mirror like surfaces. Proof refers to the method of manufacture and is not a grade.
Semi Numismatic. “Semi Numismatic” generally refers to Precious Metals that have scarcity characteristics or other attributes that make the price of the Precious Metal less tied to the purity and content of the metal, but are not so rare or old to be properly considered Numismatic. This assessment can be highly subjective, and reasonable disagreement is possible. BullionMax classifies many Fixed Mintage and Proof Precious Metals as Semi Numismatic.
Ask price. “Ask price” means the price at which BullionMax sells Precious Metals to its customers. This is also known as the “sell price” or “retail price.”
Bid price. “Bid price” means the price that BullionMax pays to purchases Precious Metals from its customers. This is also known as the “buyback price.”
Spread. “Spread” means the difference, calculated as a percentage, between BullionMax’ Ask price and Bid price for the same Precious Metal at the same time. This is calculated by subtracting the Bid price from the Ask price, and then dividing this difference by the Ask price. Spreads can vary significantly, both by Precious Metal and over time. For a customer to make a profit with respect to any Precious Metal, you must be able to sell the Precious Metal in the future for a price high enough to cover your initial investment, including the Spread.
35. Classification of Precious Metals. The classification of Precious Metals may vary by seller or buyer or over time. For example, whether a Precious Metal is classified as Bullion, Proof, Semi Numismatic or Numismatic may turn on various objective and subjective factors, including the age of the Precious Metal, its condition, the number of known copies, the likelihood of additional minting, the originating country, relevant historical events or owners, its relevance to the formation of various collections and a purchaser’s or seller’s personal attraction to the piece. BullionMax’ classification is only an opinion and may change over time based on relevant factors (for example, if additional quantities are made available). In addition, given the subjective nature of the classification process, other dealers or purchasers may classify the same Precious Metal differently. BullionMax’ prices and Spreads are based on its classification determination.
36. Acceptance of Orders. No order for Products placed by you, whether through the Website, by telephone or otherwise, will be deemed to be accepted by BullionMax until you receive an order number from BullionMax. Any order that is so accepted (each, an “Accepted Order”) constitutes a binding transaction between you and BullionMax and, except as may be provided by applicable law, may be cancelled only in accordance with the cancellation procedures set forth below.
General. BullionMax prices Precious Metals in Bid/Ask terms. The Bid price (or purchase from the customer price) for a Precious Metal is the amount BullionMax is willing to pay to purchase such Precious Metal from its customers. BullionMax currently does not purchase Precious Metals or other Products from its customers, but it may do so in the future in accordance with procedures to be determined by BullionMax. The Ask price (or sale to the customer price) for a Purchase Price is the retail price for sales by BullionMax of such Precious Metal to its customers.
Pricing for Products Offered for Sale. Prices and availability of all Precious Metals and other Products offered for sale on the Website are subject to change, without notice. All quoted prices on the Website for Products offered for sale are current as of the time shown, but can change daily or even more frequently. All prices for Precious Metals include the Spread on that piece. All quotes are given as an “Ask” price unless otherwise specified.
38. Sales Tax and Duties. BullionMax charges and collects sales tax (and, to the extent applicable, any other taxes and duties required to be imposed) on every sale of Products in accordance with the tax laws of the jurisdiction in which you are located. BullionMax will not pay sales tax on any purchase of Products from you unless BullionMax has not obtained a valid exemption certificate from the jurisdiction in which you are located.
39. Payment Methods for Customer Purchases.
(a) BullionMax currently accepts payments by wire, paper check mailed to BullionMax, credit or debit card and PayPal. In order for BullionMax to honor the price at which any order has been submitted, your payment must be received within the time periods set forth below. Any payment not received within the applicable time period shall result in the order being assessed a market loss for the period between the time of the order and the time payment is ultimately received, in accordance with the BullionMax Market Loss Policy described in Section 48.
Credit Card = 0 days (at time of checkout)
PayPal = 0 days (at time of checkout)
Wire = Due within 3-5 business days
Paper Check = Payment must be dated with 24 hours of order and received within 5 business days. Up to six business days to process payment after receipt of the paper check.
eCheck (ACH) = 0 days (at time of checkout)
(b) In the event any payment with respect to any order placed by you is received but subsequently dishonored or disallowed due to any failed, dishonored or reversed electronic debit, dishonored check or disallowed or disputed credit card or PayPal payment, BullionMax reserves the right, at its sole option, to either cancel the order and charge you administrative fees and market losses (to be calculated at the time of cancellation) in accordance with the BullionMax Market Loss Policy described in Section 48 or bill the balance payable to any payment method on file for Your Account.
40. BullionMax Right to Reject or Cancel Orders. BullionMax is not responsible for pricing or typographical errors on the Website. BullionMax reserves the right, in its sole discretion, to reject or cancel any order for any reason and at any time, even if such order constitutes an Accepted Order.
41. Suspected Payment Fraud; Anti Money Laundering Compliance.
(a) In the event BullionMax suspects credit or debit card or other payment fraud with respect to any order placed by you, BullionMax may, but shall not be required to, require an additional authorization from you, including a confirmation of your order via telephone, and other relevant information. If BullionMax suspects payment fraud with respect to any order placed by you, BullionMax shall have the right, but not the obligation, to cancel, delay, refuse to ship or recall from the carrier such order, even if such order constitutes an Accepted Order, and/or to consult appropriate legal authorities and/or the credit or debit card company or other payor and, in such event, to submit all information in the possession of BullionMax in connection with any resulting investigation.
(b) BullionMax has implemented an enterprise wide Anti Money Laundering compliance program. For more information, please view our Anti-Money Laundering Statement.
42. All Sales Final; Exception for Counterfeit Precious Metals; Returns.
(a) All Sales Final. Subject to BullionMax’ cancellation rights as described above in these Terms and Conditions, except as set forth in Section 42(b) (Counterfeit Precious Metals) and Section 49 (Returns) below and except where prohibited by applicable law, ALL SALES ARE FINAL, and any Products you purchase cannot be exchanged or returned to BullionMax for a refund.
(b) Counterfeit Precious Metals. In the highly unlikely event that it is established to BullionMax’ reasonable satisfaction that you have received counterfeit Precious Metals, BullionMax’ liability to you shall be limited to, at the option of BullionMax, either a refund of the full purchase price for such item(s) or replacement of such item(s) with other Precious Metals reasonably similar to those purchased, as determined by BullionMax in its sole discretion. BullionMax will provide such refund or replacement Precious Metals within 30 days of such counterfeit determination by BullionMax or such longer period of time as is reasonable under the circumstances.
43. Delivery. BullionMax will ship all Products purchased by you to the address specified in Your Account within 30 days of receipt of full payment, except that Products subject to “Pre Sale” orders will be shipped only when such Products are released to the public. The shipment time clock will not begin to run until any bank or payment processor hold periods clear or otherwise expire. Except where prohibited by applicable law, all shipping and handling charges are non refundable. BullionMax ships all purchases with well established small parcel post carriers, and all packages are fully insured and require an authorized signature for delivery. After you place any order, you will not be permitted to unilaterally change any aspect of the delivery, including, without limitation, escalating the service level, changing the delivery address or holding a package for pickup. In the event you would like to request any such change, you will be required to call BullionMax Customer Service, during normal business hours of 6:00 a.m. Pacific time to 5:00 p.m. Pacific time, Monday through Friday (excluding holidays), to make such request, and BullionMax reserves the right to reject any such request at its sole discretion. BullionMax will not be liable for any lost or stolen items if you give instructions to any carrier to leave a package for you without the need for a signature or to forward or leave your package with anyone other than yourself.
44. Products Lost or Stolen in Transit. If any Product(s) purchased by you from BullionMax is lost or stolen in transit, you must notify BullionMax immediately and provide all information requested by BullionMax. In such event, BullionMax may require you to file a police report with local law enforcement having jurisdiction over your shipping address. Following an investigation by BullionMax, its insurance carrier and/or applicable law enforcement and verification by BullionMax that any such item was lost or stolen in transit, BullionMax, in its sole discretion, will either refund to you the full purchase price for such lost or stolen item, or replace such item with other Products reasonably similar to those purchased but not received. BullionMax will provide such replacement items or refund within 30 days of such verification or such longer period of time as is reasonable under the circumstances. BullionMax shall have no liability for any item that is lost or stolen after it is delivered to your address.
45. Tampering. BullionMax shall not, under any circumstances, have any liability as to any Products that are removed from their tamper resistant encasements, or as to which the encasements have been modified or exhibit any evidence of tampering by you or any third party.
46. Restocking Fee. If you refuse to accept delivery of any Product purchased by you or fail to make payment when due, unless prohibited by applicable law, BullionMax shall be entitled to recover from you a restocking fee equal to the greater of $50 or 10% of the total order price for such Product, plus, with respect to any Product that is a Precious Metal, the difference in any market fluctuation in the Ask price of the Precious Metal purchased.
47. Limits on Promotional Items. BullionMax reserves the right to limit order quantities of any promotional items offered for sale by BullionMax.
48. BullionMax Market Loss Policy. Upon issuance of an order number following a purchase of any Product from BullionMax, the price for such Product is guaranteed, and you may not cancel the transaction. If your order for any Product is cancelled, except where prohibited by applicable law, you are responsible for any deficit between the price at which BullionMax sold such Product to you and BullionMax’ current Ask price for such Product. Market gains on cancellations or returns shall remain the property of BullionMax.
(a) BMX will accept returns on all Products sold to customers, including Precious Metals, subject to the requirements set forth in this Section 49. In order to return any Product, you must keep the Product in its original packaging and notify BullionMax Customer Service, during normal business hours of 6:00 a.m. Pacific time to 5:00 p.m. Pacific time, Monday through Friday (excluding holidays), within seven days following delivery of the Product. BullionMax Customer Service will provide instructions for return of the Product and assign you an authorization number for your return. No return will be accepted without an authorization number. You are responsible for providing secure packaging for the Product and returning it to BullionMax at your own expense. BullionMax will process your refund only after the Product has been returned to BullionMax and BullionMax has confirmed that the returned item is the same Product as was purchased and is in the same condition as purchased. BullionMax reserves the right to reject any return that fails to satisfy all the requirements set forth in this Section 49(a).
(b) Except where prohibited by applicable law, all returns of Precious Metals are subject to the BullionMax Market Loss Policy described in Section 48, and any market loss with respect to any Precious Metal that is returned will be deducted from your refund. In addition, except where prohibited by applicable law, for all returned Products, BullionMax will charge a restocking fee equal to the greater of $50 or 10% of the total order price for such Products, which restocking fee will be deducted from your refund. BullionMax reserves the right to substitute a credit redeemable on future purchases from BullionMax in lieu of a cash refund. Any other refund will be paid to you via the same payment method that you used to purchase the Product being returned.