This Customer Policy (“Agreement”) is an agreement between Dillon Gage Incorporated of Dallas (“Dillon Gage,” “Company,” or “we”) and you, the customer (“Customer” or “you”).
PURPOSE OF AGREEMENT
This Agreement states the standard terms and conditions of purchase and sale which will govern all trades between Customer and Dillon Gage, including without limitation buy orders and sell orders that Customer places with Dillon Gage either via telephone or utilizing the limited license and service subscription to Dillon Gage’s digital platforms FizTrade, FizCommerce, FizConnect or Closed Loop IRA (collectively, “FizTrade”) and the use of any products and services offered by Dillon Gage’s Metals Division (collectively “ Orders” and each an “Order”). BY EXECUTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL OF THE STANDARD TERMS AND CONDITIONS SET FORTH HEREIN. YOU ACKNOWLEGE EXECUTION OF THIS AGREEMENT IS THE ONLY VALID WAY TO PROCURE A DILLON GAGE ACCOUNT AND SERVICES AND FURTHER AGREE TO ALL
TERMS SET FORTH IN THE AGREEMENT. This Agreement does not obligate you to buy from or sell to Dillon Gage, and Dillon Gage has no obligation to buy from or sell to you unless you place an Order.
Once you place an Order with a Dillon Gage representative (“ Trader”) or through FizTrade the price you agree upon will not change and is locked in for the life of the Order. You acknowledge and agree that verbally placing an Order with a Dillon Gage Trader or through FizTrade constitutes a valid and binding contract, and it is understood that the contract is legally enforceable against you in accordance with the terms of this Agreement and the Order. You acknowledge that verbal orders placed over the phone are recorded and effectively memorialize and constitute an electronic record of the contract between you and Dillon Gage. Likewise, for the Orders placed through FizTrade, an electronic record is created to memorialize such Orders. Your purchase or sale price is confirmed upon the earlier to occur of verbal confirmation of the Order by a Dillon Gage Trader or Dillon Gage’s assignment of an Order number to your trade electronically or when completed through FizTrade. With respect to an Order for most bullion items, bid and ask prices are based on Dillon Gage’s spot prices at the time of the Order. Prices of numismatic items are based on then current market conditions. Dillon Gage’s spot prices are derived from actively traded futures contracts with additional criteria added to those futures contract prices based upon Dillon Gage’s commercially reasonable judgment. Dillon Gage receives market data from third-party providers in “real time,” as defined by Dillon Gage’s data licensing agreements with those providers. Accordingly, Dillon Gage’s spot prices move at the speed of the precious metals market. Dillon Gage provides various ways to access this data, in real time or delayed, depending on the method Dillon Gage determines, at its sole discretion, for data distribution. Notwithstanding the method you choose to access Dillon Gage’s metals pricing, precious metals prices fluctuate and change in “real time” with the speed of the market. FizTrade account holders can log into FizTrade (www.Fiztrade.com) and receive quotes that are updated in real time. If you receive a price quote from a Trader without placing an Order that quote remains subject to change until the Order is placed. The pricing for the limited license and services subscription to any services provided by Digital Metals are set forth on Exhibit A hereto, if applicable.
BUYING METALS FROM DILLON GAGE
Once your account has been established, Dillon Gage offers various methods for placing Orders. You can call and speak to a Dillon Gage Trader who will take your Order and verbally confirm your trade. If you are a registered FizTrade account holder, you can also place a trade online. Dillon Gage also receives orders electronically through various application program interface software protocols. Each of these methods provides an Order confirmation. Once an Order is confirmed and you receive a confirmation number, either verbally with a Dillon Gage Trader or online with FizTrade, a valid and legally binding contract has been created. This Agreement is enforceable against you in accordance with its terms.
With the exception of federal holidays, Dillon Gage’s normal hours of operation are Monday through Thursday 8:00AM to 5:30PM Central Time (“CT”) and Friday 8:00AM to 5:00PM CT. Dillon Gage may offer trading after or before normal business hours through a medium supported by an active electronic market. Currently, electronic market hours are 5:00PM CT on Sunday through 4:15PM CT on Friday. Dillon Gage is not obligated to and may not make markets in all precious metals during these trading hours and may extend or amend its trading hours at its sole and absolute discretion.
By agreeing to purchase metals from Dillon Gage or access FizTrade for purchasing or pricing data, you warrant that your conduct and purchase is in full compliance with all applicable federal and state laws, including but not limited to the Patriot Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act and federal Anti-Money Laundering Laws, and that you are not utilizing funds or property derived from unlawful or illegal activity. You further warrant and represent that you are not insolvent and are not using funds with the intent of hindering, delaying, or defrauding any of your creditors.
SELLING METALS TO DILLON GAGE
When selling metals to Dillon Gage, you hereby warrant that all monies and merchandise sent to Dillon Gage as part of any trade, are owned by you, were obtained by lawful and rightful means, and are free of any and all liens, claims, security interests and encumbrances and comply in all respects with the Dillon Gage Conflict Metals Policy (a copy of which is available upon request). You further warrant and represent that you have the title and authority to sell and full right, interest and marketable title in and to all merchandise sold to Dillon Gage. Orders must be shipped within two (2) Business Days of the trade date. When the precious metals are received, the Order will be inspected by Dillon Gage vault managers to determine quantity and quality with respect to the purchase Order. Dillon Gage will promptly notify you of any discrepancies in the Order, and you agree that the results of all Dillon Gage’s inspections are conclusively deemed to be correct and are final. The Customer will rectify all differences and discrepancies in quantity and/or quality within two (2) Business Days following notification thereof. You may also repurchase the entire Order (hereinafter called “Offset); however, in that event you will be liable for any and all of Dillon Gage’s fees and losses associated with the Offset. Payment for Orders which are sales of precious metals to Dillon Gage will be made by check and sent via U.S. Mail. Dillon Gage will, at the Customer’s written request, provide a bank wire or overnight check for a fee of $35.00 per transaction. Payment is issued the day after we receive your item(s) in full and inspect the Order. For Customers who have a credit account and Cash on Confirmation (“credit”) privileges, Dillon Gage will issue payment in accordance with the terms of the Customer’s account.
DIGITAL METALS’ LIMITED LICENSE AND ANNUAL SERVICES SUBSCRIPTION
Pursuant to the terms hereof, the Customer may utilize (i) certain Digital Metals’ licensed services, (ii) certain Third Party Data, and (iii) Digital Metals’ data (collectively, “Services and Data”, as more fully described on Exhibit A, as applicable). The Customer hereby acknowledges and agrees that the terms of this Limited License and Annual Services Subscription for the use of Services and Data become effective as of the execution of this Agreement and continue for one (1) year term (the “Initial Terms”). After the Initial Term, and so long as the Customer remains in good standing and not in default under any provision of this Agreement, the Limited License and Annual Services Subscription will automatically renew for a successive renewal term (“Renewal Term”) unless Dillon Gage expressly revokes it upon not less than thirty (30) days written notice (the “Service Period”). The Customer further acknowledges that a valid email address has been provided in conjunction with this Dealer Application and the Customer authorizes Dillon Gage to utilize the email address so provided for Dillon Gage’s marketing and sales purposes. This authorization notwithstanding, the Customer has a right to opt out of any email communications from Dillon Gage.
LIMITED LICENSE TO SERVICES AND DATA
Subject to the Customer’s compliance with the terms and conditions of this Agreement and payment in full of all fees as set forth on Exhibit A, as applicable, Dillon Gage hereby grants to the Customer a limited, non-exclusive, non-transferable right to access and use the Services and Data solely for such Customer’s permitted business uses as set forth herein. Dillon Gage previously entered into a Derivative Data Agreement with the Chicago Mercantile Exchange (the “CME”) to obtain a limited license to utilize certain proprietary data of the CME. The Customer is prohibited to use any of CME’s data for any purposes the goal of which is not its bona fide business of conducting buy and sell trades with Dillon Gage in accordance with Exhibit A hereof (“Permitted Use”), as applicable, but to reverse engineer any of CME’s pricing data by leveraging Dillon Gage’s data to do so (“Prohibited Use”).
Dillon Gage reserves the right to immediately and without advanced notice revoke this Limited License and Annual Services Subscription for any violations of the
terms hereof or engaging in Prohibited Use and terminate this Agreement effective immediately. The Customer is also prohibited from providing, divulging, disclosing or making available or permitting the use of the Data and Services, such as its secure FizTrade login information with or by any third party to enable unauthorized access to the Services and Data.
To further enable the Customer to utilize the FizTrade and the Services and Data, Dillon Gage may from time to time utilize Third-Party Data available to Dillon Gage. Customer hereby acknowledges and agrees that such Third Party Data may be subject to restrictions of use, require additional contractual undertaking by the Customer or may result in additional service fees. While Dillon Gage may undertake to assist the Customer in securing and satisfying the requisite additional obligations and licensing, the Customer remains solely responsible for obtaining any such licenses to enable its continued use of any Third Party Data. Failure to obtain any such prerequisites from the owner of the Third Party Data may be deemed by Dillon Gage a default hereunder and Dillon Gage reserves all rights to terminate this Limited License to Services and Data or limit the Customer’s access thereto.
Except for the limited license and services granted to the Customer under this Agreement, nothing herein shall grant the Customer any ownership or other interest in or right to Dillon Gage’s property, including intellectual property. The Customer acknowledges and agrees that Dillon Gage, and in some instances Third Party Data owners, own the intellectual property in the Data and Services. The Customer further agrees and covenants that it will not, directly or indirectly attempt to modify, enhance, change or otherwise attempt to “reverse engineer” any of the Data and Services. Customer agrees and acknowledges that any default hereunder shall result in irreparable damages to Dillon
Gage and the Third Party Data owners, respectively, and such damaged party shall be entitled to
equitable relief including without limitation temporary and permanent injunctions, without the need for a bond, award of attorney’s fees and other costs. Any such violation or attempted violation shall also result in the immediate termination of this Agreement and all rights of the Customer to use the Services and Data.
The Customer hereby represents and warrants that the Services and Data provided to it by Dillon Gage hereunder will be utilized by the Customer solely for the purposes of trading with Dillon Gage and any other uses are expressly prohibited. The Customer further acknowledges that it may request from time to time that Dillon Gage through Digital Metals provide additional services and data not set forth on Exhibit A to enable the Customer to conduct its business via FizConnect Application Program Interface (“API”) for which Dillon Gage reserves the right to charge additional fees to be agreed upon by the Customer (“Additional Services Fee”). The Customer understands that all recurring charges and fees set forth on Exhibit A, as applicable, shall be due and payable in advance, without offset or deduction on or before the first date of the Service Period. Customer shall pay all Additional Services Fees, if any, immediately upon receipt of invoice.
PAYMENT & DELIVERY
Acceptable forms of payment to Dillon Gage are bank wires, cashier checks, business or personal checks. Dillon Gage does not accept cash, money orders, or any debit or credit cards as a form of payment. When paying with a bank wire, your Order will normally be shipped to you within 48 hours. For all other forms of payment, including cashier checks, your Order will normally be shipped to you within ten (10) to fifteen (15) days. All payments should be made within a 24 hour period of placing an Order. If mailing a check, please have payment in the mail the same or next day. If your Order has not been paid in full within seven (7) Business Days, Dillon Gage reserves the right to cancel the Order, at its discretion. Any losses incurred by Dillon Gage as a result of the cancelled Order will be the responsibility of the Customer to pay in full within three (3) days following notice of such losses by Dillon Gage to you.
Once you have placed an Order with a Dillon Gage Trader or on FizTrade, a confirmation number will be assigned to your Order. Upon the earlier of verbal confirmation of the Order by a Dillon Gage Trader or Dillon Gage’s assignment of a confirmation number to your Order, the Order is a valid, legal and binding contractual obligation enforceable against you, and you may not cancel the Order. If you do not wish to fulfill the buy or sell Order you have placed, then your only recourse is to Offset the Order. If you Offset the Order, then you may incur charges for market movement, premium changes, and differences between the bid and ask prices. Dillon Gage reserves the right to cancel your Order if payment is not received within seven (7) Business Days. The amount of the Offset is any losses incurred by Dillon Gage due to market movement, premium changes, and differences between the bid and ask prices. The Offset is the Customer’s responsibility and must be paid in full by you within three (3) days following notice of such losses by Dillon Gage to Customer. If Dillon Gage cancels an open Order where delivery or payment by Dillon Gage to you has not been made, then Dillon Gage will refund any monies or merchandise related to such an Order received from the Customer.
DEFAULT & RIGHT OF OFFSET
You acknowledge and agree that you are in default (“Default”) when any of the following occur: (1) non-payment or non-delivery of any trades, Orders, or any duty, obligation or liability under this Agreement; (2) failure to notify Dillon Gage of any changes to your financial condition that have or may have an adverse effect on your ability to trade or which conflicts or may conflict with any of the information provided in the original documentation setting up your account, including but not limited to the information contained in this Agreement; (3) Dillon Gage determines, in its sole and absolute discretion, that you have or may have misrepresented any information or breached any warranties associated with any type of Order; or (4) failure to adhere to any of the terms and conditions set forth in this Agreement. If you are in default under any part of this Agreement, without limitation of all of Dillon Gage’s rights and remedies arising hereunder and at law and in equity, then Dillon Gage reserves the right to perform any or all of the following: (a) immediately terminate your Dillon Gage account, (b) immediately call any and all amounts due by you and liquidate any and all of your precious metals held by Dillon Gage and apply the funds from such a liquidation to any amounts due by you, (c) Offset any amounts due or owing by you against any amounts due or owing by Dillon Gage, (d) cancel any open Orders where delivery or payment by Dillon Gage to you has not been made and Customer will be liable for all losses relating thereto, (e) cancel any open Orders where delivery or payment by you to Dillon Gage has not been made and Customer will be liable for losses relating thereto, (f) assess and receive all interest and late fees, applicable by law, on all outstanding amounts due Dillon Gage, including without limitation, interest at the lesser of 18% or the highest rate allowed under applicable law on all outstanding amounts due Dillon Gage from the date due through the date of payment of such outstanding amounts, and/or (g) employ any other form of collection available under state and federal law. All Offsets will be based on current market prices at the close of trading for that (those) commodity(ies) on the day the Customer’s account is deemed in default.
You have the right to return precious metals to Dillon Gage if they do not meet the specifications of your Order. In order to obtain a full refund of your purchase price, the precious metals must be returned within five (5) Business Days of your receipt of the precious metals. Following five (5) days after your receipt of the precious metals, Dillon Gage may reject any return shipment of precious metals and has no obligation to refund your purchase price.
If you return precious metals to Dillon Gage, please enclose a copy of the corresponding Sales Order in the shipment. All shipments MUST be accompanied by documentation identifying the trade/purchase confirmation number, date of the trade, the items, and quantity involved and returned. You assume risk of loss for all hazards with respect to returned precious metals until any returned precious metals is actually received by Dillon Gage.
From time to time, Dillon Gage may, in its sole and absolute discretion, establish credit accounts for certain of its customers. A review of the financial condition of each customer who requests a credit account may be undertaken by Dillon Gage in its sole and absolute discretion. Upon approval, which approval may be granted or withheld in Dillon Gage’s sole and absolute discretion, an extension of credit with a credit limit will be determined that allows the Customer to engage in a credit program. This extension of credit may be in the form of shipping precious metals prior to payment being received by Dillon Gage. If Dillon Gage ships precious metals to you prior to its receipt of payment, the precious metals remain the property of Dillon Gage until paid for in full and shall be returned to Dillon Gage on demand if payment in full is not timely made. No right or power is given to you to sell, pledge, hypothecate, or otherwise dispose of the precious metals unless and until paid for in full. In the event that Dillon Gage does not receive payment when due, Dillon Gage, may, at its option, charge interest on the monies at a rate equal to or less than the maximum rate allowed by laws of the State of Texas.
Payments issued and/or metals shipped to the Customer as part of the credit program will not exceed the credit limit for the Customer established by Dillon Gage. Terms of payment and the requirement of guarantees may vary. Dillon Gage is not required to extend credit to any Customer, and not all account applications will be approved. Dillon Gage may change or withdraw the credit program at
any time, and the terms and limits for such credit will be at Dillon Gage’s sole and absolute discretion.
CHANGES IN CUSTOMER CONDITION
You agree immediately and before placing another Order to notify Dillon Gage in writing of any changes to your current business operations and financial condition to include but not limited to: (1) location and proper address;
(2)name change; (3) change in status or company existence (i.e. corporation, partnership, sole proprietor); (4) changes in your business licenses or permits; (5) change in your financial condition that could adversely affect your ability to fulfill your duties, obligations, or liabilities as stated in this Agreement; and (6) changes in the laws and regulations that govern your state or locality that may affect this Agreement and your performance hereunder.
If any term or provision of this Agreement shall be held to be invalid, illegal, unenforceable, or in conflict with the law of any jurisdiction or legal authority, then the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and all unpaid balances on Customer’s account shall remain enforceable.
ENTIRE AGREEMENT & MODIFICATION
This Agreement, including without limitation, the Dillon Gage Account Application and Agreement, together with Dillon Gage’s price list as in effect from time to time, and those Purchase Orders, Sales Orders, or Invoices issued from Dillon Gage that memorialize any Order, contain the sole and entire agreement between Dillon Gage and you and apply to and govern over any Orders or other transactions between us, superseding all prior discussions, proposals, quotations, negotiations, representations and agreements relating thereto, and, except as hereinafter provided, shall not be modified or amended, nor shall any requirement set forth herein be waived, except by a written instrument signed by duly authorized officers or employees of Dillon Gage and you. Prior course of dealing, trade usage and/or oral agreements, to the extent they would modify, add to, or detract from the provisions hereof, shall not be binding on Dillon Gage, and you hereby expressly waive them.
Except as otherwise expressly provided herein, no confirmation, purchase order or acceptance provided by you to Dillon Gage and which imposes additional or inconsistent terms of any type, shall be effective for any purpose. Any documents, terms, conditions or other information provided by you to Dillon Gage shall be for identification purposes only and shall not form a part of the Agreement set forth hereby. Any reference by Dillon Gage to any confirmation or purchase order that Dillon Gage receives from you shall not be deemed to be an acceptance of the terms thereof.
Dillon Gage may change or modify its Customer Policy at any time in its sole and absolute discretion, and such changed or modified Customer Policy shall become binding upon the earlier of (a) the Customer’s receipt of notice of the modified Customer Policy, by any means; (b) the Customer’s receipt of a Purchase Order or Sales Order from Dillon Gage; or (c) upon Dillon Gage’s posting of a modified Customer Policy on its website at www.dillongage.com.
Dillon Gage shall not be liable for any failure or delay in performance or obligations under this Agreement to the extent said failures or delays are beyond reasonable control and occurring without Dillon Gage’s gross negligence or willful misconduct, including, without limitation, acts of God, failure of suppliers, subcontractors, and carriers, war, hostile or warlike action, any act of terrorism or any action taken in controlling, preventing, suppressing or in any way relating to any act of terrorism, strikes, lockouts or other labor disturbances, riots or authority of law. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the duration of any delay so caused.
Pursuant to the Texas Business and Commerce Code § 322.007, Customer and Dillon Gage agree that Orders between you and Dillon Gage may be conducted and completed by electronic means.
This Agreement and any guarantees relating hereto shall be interpreted and construed according to, and governed by, the laws of the State of Texas. The federal or state courts located in Dallas County, Texas, shall have exclusive jurisdiction to hear any and all dispute(s) under this Agreement. You hereby consent to venue and personal jurisdiction in Dallas County, Texas and waive the right to sue or to be sued elsewhere.
You are responsible for any and all taxes that may be assessed to you as a result of activity entered into under this Agreement, including without limitation, sales taxes and all federal, state and local taxes. Dillon Gage does not provide tax advice. Dillon Gage encourages you to consult an independent tax professional with respect to tax law and preparation.
It is the practice and policy of Dillon Gage to record all telephone conversations for training, research and verification purposes. Such recording will be used by Dillon Gage as confirmation and memorialization of an Order placed by you. You agree that Dillon Gage’s telephonic recordings of your Order(s) with Dillon Gage constitute an “electronic record” as defined by the Uniform Electronic Records Act (Tex. Bus. & Com. Code 322.007(c)) and is a sufficient, enforceable and proper writing, by electronic means, of the Order(s) between you § and Dillon Gage.
Trading precious metals, like all investments, is speculative and carries a high level of risk, and may not be suitable for all investors. Before deciding to buy, sell, trade or invest in precious metals, you should carefully consider your investment objectives, level of experience, and risk appetite. A substantial possibility exists that you could sustain a loss of some or all of your investment, and therefore you should not invest money that you cannot afford to lose.
Some of the risks of purchasing or owning precious metals include, without limitation: (1) the purchase of physical bullion and coins exposes the investor to risk of loss or theft, although storage of precious metals in a
depository substantially reduces the risk of loss or theft; (2) trading on precious metals exchanges is subject to their rules and regulations. Precious metals exchanges can accidentally affect market conditions and outcomes by changing their trading rates. Other exchange events can also affect or create risk to the precious metals or precious metals futures investor, including: (a) Margin Requirement Change Increasing the margin requirements will likely result in more selling and a price drop as traders liquidate holdings to raise cash to meet the new margin requirements; (b) Liquidation Only: The exchange can temporarily restrict buying so that only selling can occur thereby driving prices down; and (c) Halt Trading: The exchange, under rare conditions, can temporarily halt the trading of any commodity. During such times, no buying or selling may occur and an investor would be unable to trade its holdings; (3) precious metals prices are volatile and are subject to market fluctuations; and (4) there are political risks to precious metals investing in that governments can change laws and regulations that may harm any precious metals that you may buy or sell.
You should be aware of all the risks associated with trading or investing in precious metals and seek advice from an independent financial advisor if you are unsure in any way about trading or investing in precious metals. THE DATA AND INFORMATION CONTAINED WITHIN DILLONGAGE.COM AND FIZTRADE.COM WEBSITES ARE BELIEVED TO BE RELIABLE MAY NOT BE RELIABLE, ACCURATE, OR COMPLETE; AND, AS SUCH, ARE SUBJECT TO CHANGE WITHOUT NOTICE. YOU ACKNOWLEDGE AND AGREE THAT NEITHER DILLON GAGE, DILLONGAGE.COM, NOR FIZTRADE.COM ARE OR WILL BE RESPONSIBLE FOR ANY MONETARY LOSS WHICH MAY RESULT FROM YOUR RELIANCE ON THE DATA, OTHER INFORMATION, OR THE OPINIONS EXPRESSED THEREIN OR FOR YOUR INVESTMENT. YOU SOLELY ARE RESPONSIBLE FOR
YOUR OWN INVESTMENT DECISIONS. Please refer to the Dillon Gage and FizTrade website user agreements for more detailed information.
RELATIONSHIP OF THE PARTIES
Neither Party hereto shall act or have the authority to act as an agent for or of the other Party for any purpose whatsoever. Nothing in this agreement shall be deemed to constitute or create a joint venture, partnership, agency relationship, pooling arrangement, or other formal business entity or fiduciary relationship between the Parties. This Agreement does not and is not intended to confer any rights or remedies upon any person other than the Parties.
DILLON GAGE CONFLICT METALS POLICY
DILLON GAGE is committed to engaging in rigorous due diligence efforts designed to verify — whenever possible — the source of precious metals, specifically gold, used in DILLON GAGE supply chain. DILLON GAGE is committed to purchasing precious metals and other materials only from environmentally and socially responsible suppliers. By entering into this Agreement, you acknowledge that you have reviewed and agree to abide by Dillon Gage’s Conflict Metals Policy.
LIMITATION OF DAMAGES
IN NO EVENT SHALL DILLON GAGE BE LIABLE FOR (1) ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, ANY LOSS OF PROFIT OR REVENUE REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHER, EVEN IF ARISING OUT OF DILLON GAGE’S NEGLIGENCE OR (2) ANY EXPENSE INCURRED BY YOU OR ANY THIRD PARTY OR ANY CLAIM BY YOU OR ANY THIRD PARTY BY REASON OF ANY NEGLIGENCE OR ANY BREACH OF WARRANTY OR OTHER OBLIGATION BY DILLON GAGE ARISING OUT OF THESE STANDARD TERMS AND CONDITIONS OR RELATING TO THE TRANSACTIONS CONTEMPLATED HEREIN. CUSTOMER AGREES THAT CUSTOMER SHALL NOT BE ENTITLED TO SPECIFIC PERFORMANCE IN CONNECTION WITH THIS AGREEMENT.
INDEMNITY AND THIRD PARTY CLAIMS
The Customer will defend and indemnify Dillon Gage, its officers, directors, employees, agents, contractors, representatives, suppliers, subsidiaries, parents and affiliated companies from any third party claim arising out of or related to: (a) alleged Customer conduct in breach of this Agreement, including, without limitation, alleged infringement on third party intellectual property or privacy rights; (b) the Customer’s use, misuse or failure to use the Services and Data; and (c) any action taken by Dillon Gage as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer’s obligation includes payment of losses, expenses, damages and costs, including, without limitation, attorneys’ fees and costs, including any court costs.
NO THIRD PARTY BENEFICIARY
This Agreement does not and will not confer any rights or remedies upon any person other than the Customer.
TIME IS OF THE ESSENCE
Time is of the essence with respect to performance by Customer of all of its duties, obligations, and liabilities under this Agreement.
“Business Days” are all days Monday through Friday except those days on which the United States Mail is not delivered and those days on which Dillon Gage is not open for business.
ELECTRONIC EXECUTION OF THIS AGREEMENT
Your electronic acknowledgment, as entered on a Dillon Gage web portal or web site, constitutes your signature and acceptance of this Agreement and serves as acceptance of Dillon Gage’s Customer Policy. To the extent applicable, a telecopied, faxed or electronic transmission of a duly executed counterpart of this Agreement shall also be sufficient to evidence your signature on and acceptance of the terms and conditions