FASTGEM TERMS OF SERVICE & NDA

 

This document was last modified on January 12, 2019.

The following are the terms and conditions for use of FASTGEM services. Please read them carefully. Our Service is offered to you with the condition that you accept without modification the terms and conditions contained herein. CCG may change these Terms of Service at any time, with or without notice. Accordingly, you should return to this Website often to check for changes to the Terms of Services. You understand that by using the Service after a change becomes effective, you have agreed to it. By purchasing Services from CCG, you are indicating your agreement to be bound by all of the terms and conditions set forth in this document.

THESE TERMS AND CONDITIONS STATE IMPORTANT REQUIREMENTS REGARDING YOUR USE OF FASTGEM AND YOUR RELATIONSHIP WITH CCG AND ITS PARTNERS. YOU SHOULD READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OURS.  YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS.

  1. GENERAL
    These Terms of Service (the "Agreement") are entered into by and between you, the customer (personally and/or on behalf of your employer, as applicable) ("you", "your" or "Subscriber") and Caldwell Consulting Group, LLC DBA FastGem ("FASTGEM", "us" or "we"). You are deemed to have accepted this Agreement upon the earlier of: (a) your accepting the Terms of Service electronically during registration for the Website; or (b) your use of the Website or Service. This Agreement is made up of the terms below, plus the FASTGEM Privacy Policy, all attachments to this Agreement, and the other policies and materials specifically referred to in these Terms of Service, all of which are incorporated herein by reference. The Agreement and related policies are also set forth on the FASTGEM website (https://mip.fastgem.net) ("Website"). The Agreement sets forth the ONLY terms and conditions under which may use the Service and the Website, and under which CCG agrees to provide access to the Website and the Service to you.
  2. DEFINITION OF SERVICE
    For purposes of this Agreement, the term "Service" shall mean your engagement of FASTGEM, through the Website, to act as your agent for the purpose of your direct from manufacturer purchase of goods and services shown on the Website. Please note that additional agreements and paperwork will be required in order to complete the actual purchase of an item shown on the Website from the manufacturer.
  3. AUTHORIZED USER, USE, AND RESPONSIBILITIES
    3.1 You represent that: (i) you are 18 years of age or older and you have the legal capacity and authority to bind yourself and your employer, as applicable, to this Agreement; (ii) you consent on behalf of yourself and/or as an authorized representative of your employer, as applicable, to be bound by this Agreement; and (iii) the information you supply to us is correct and complete. You understand that FASTGEM and its partners rely on the information you supply and that providing false or incorrect information may result in Service withholding or delays or the suspension or termination of your customer account. You agree to promptly notify FASTGEM whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).

3.2 You agree that you are responsible for all use on your account, including any secondary accounts or sub-accounts registered to your primary account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses the Service via your account, or any secondary accounts, with or without your permission.

  1. PRIVACY POLICY
    Your privacy is important to FASTGEM. FASTGEM will treat your personal information in accordance with its current Privacy Policy, subject to change from time to time. You agree to the terms of the Privacy Policy, which describes FASTGEM’s use and disclosure of information about you, your account and your use of the Service.
  2. CONFIDENTIALITY OF SERVICE
    In connection with your use of the Service and access to the Website, FASTGEM will disclose to you information which is confidential and proprietary to FASTGEM and which is important to the conduct of its business. The disclosure of such information or the engaging in competitive activities by you would cause substantial harm to FASTGEM. Accordingly, in consideration of FASTGEM allowing you to have access to the making known the information, and of the proposed arrangements between the parties, you and FASTGEM agree as follows:

5.1        As used in this Agreement, the term “Information” means any technical or business information furnished by FASTGEM to you in connection with the proposed business relationship including, without limitation, FASTGEM’s business model and business plan, FASTGEM’s terms of use, pricing, manufacturers, categories and availability of goods, documentation, specifications and other information about FASTGEM.  Such Information may include, without limitation, trade secrets, know-how, inventions, technical data or specifications, testing methods, business or financial information, research and development activities, product and marketing plans, the specific terms of this Agreement, and customer and supplier information.

Notwithstanding the foregoing, Information shall not include information that you can demonstrate through contemporaneous written evidence:

  • was in the public domain prior to the time of its disclosure under this Agreement;
  • entered the public domain after the time of its disclosure under this Agreement through means other than an unauthorized disclosure resulting from an act or omission by you;
  • was independently developed or discovered by you without access to or use of the Information; or
  • is or was disclosed to you at any time, whether prior to or after the time of its disclosure under this Agreement, by a third party having no relationship with FASTGEM and having no obligation of confidentiality with respect to such Information.

5.2        you will keep strictly confidential and not disclose any of the Information to any person or organization, except to persons employed by you and to your legal, financial and accounting advisors, provided that such employed persons and advisors are bound by confidentiality obligations no less restrictive than those in this Agreement.  Without limiting the generality of the foregoing, you may disclose Information if such disclosure is required in order to comply with applicable laws or regulations, or with a court or administrative order, provided that FASTGEM receives prior written notice of such disclosure and that you take all reasonable and lawful actions to obtain confidential treatment for such disclosure and, if possible, to minimize the extent of such disclosure.

5.3        You will not use the Information for any purpose other than to purchase Services from FASTGEM in conjunction with your use of the Website. You represent and warrant that you do not currently have a product or service which would be competitive with Service or the Website and will not, for a period beginning upon your first receipt of the Information and ending twenty four (24) months following your return of all of the Information in your, your employee’s or your agent’s possession, directly or indirectly, develop, market, sell, or assist a third party in the development, marketing or sale of a product which would be competitive with the Service or the Website.

5.4        You will not, by FASTGEM’s disclosure to you or your use of the Information, acquire any rights with respect thereto, all of which rights shall, as between the parties, remain exclusively with FASTGEM.  No patent or copyright license is granted and FASTGEM reserves all rights other than those expressly set forth herein.

5.5        At any time upon the request of FASTGEM, all Information (and all copies, summaries and notes of the contents or parts thereof, in whatever form) shall be returned to FASTGEM and shall not be retained by you in any form for any reason, and all materials prepared by you or your advisors which incorporate or are derived from any of the Information shall be destroyed.

5.6        You understands that FASTGEM makes no representation or warranty herein as to the accuracy or completeness of the Information.

5.7        In addition to and without limiting any other remedies available at law or equity, FASTGEM shall be entitled to an injunction and other equitable relief in the event of any failure by you to comply with the provisions of this Section 5, without the necessity of posting a bond.  No failure or delay by FASTGEM in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.

5.8        You will be responsible for the adherence to the terms of this Agreement by your employees, agents, advisors and any other persons to whom you discloses the Information to the extent permitted by this Section 5.

5.2 FASTGEM, its partners or their suppliers may, at any time, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities and to maintain session control.

  1. ADDITIONAL TERMS UNDER DEVELOPMENT
    6.1 These Terms and Conditions are effective as of January 12, 2019. You acknowledge that the Service and the Website are currently under development and this Agreement and the terms under which you are provided access to the Service and Website will change. FASTGEM reserves the right to amend, revise, or modify this Agreement at any time and in any manner FASTGEM deems appropriate. When we change the Agreement in a material way a notice will be posted on our Website along with the updated Agreement. Your use of our Website and any of the Services provided by FASTGEM after such changes are implemented constitutes your acknowledgement and acceptance of these changes.
  2. TERM AND TERMINATION
    7.1 Effective Date and Term. This Agreement goes into effect upon your acceptance of this Agreement as and shall continue, subject to the terms of this Paragraph, until terminated by either party as permitted by this Agreement.

7.2 Termination of Service.

7.2.1 Termination and/or Suspension by FASTGEM. If, in the sole discretion of FASTGEM: (a) you are in breach of any of the terms of this Agreement (including but not limited to all policies regarding abuse and acceptable use of the Service); (b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Website, or the use and enjoyment of other users; (c) if FASTGEM for any reason ceases to offer the Service; (d) if you are no longer a FASTGEM customer, or (e) FASTGEM determines that you are abusing the Service or using the Website excessively then, FASTGEM at its sole election may terminate or suspend your Service and access to the Website immediately without notice.

7.2.3 Terminated Account. FASTGEM, in its sole discretion, may refuse to accept your request for service, renewal or re-subscription following a termination or suspension of your use of the Service.

  1. LIMITATIONS ON USE OF THE SERVICE
    9.1 You agree that your use of the Service and the Website, without limitation, is your sole responsibility, is solely at your own risk, and you will comply with all applicable local, state, national and international laws and regulations.

9.2 You further agree that FASTGEM and its partners do not own or control all of the various facilities and communications lines through which service may be provided, nor do FASTGEM or its partners guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by FASTGEM or its partners.

9.3 You agree that FASTGEM and its partners cannot and do not guarantee or warrant that data available for downloading through the Service will be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Service for the reconstruction of any lost data.

9.4 You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. FASTGEM and its partners are not responsible for invalid destinations, transmission errors, or corruption or security of your data.

9.5 You understand that your ability to link to a web site through the Service does not, in any way, represent or imply FASTGEM’s or its partners’ approval of, or its determination of the quality of that product or service, and that links are provided for your convenience only. The links provided through the Service are maintained by their respective organizations, which are solely responsible for their content.

  1. WARRANTIES AND LIMITATION OF LIABILITY
    10.1 YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY FASTGEM OR ITS PARTNERS (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT OR SOFTWARE), FASTGEM AND ITS PARTNERS (AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AND AFFILIATES), THEIR THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING MANUFACTURERS, DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY FASTGEM OR ITS PARTNERS OR THEIR RESPECTIVE REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF THE SERVICE IS AT YOUR OWN RISK AND IS NOT WARRANTED.

10.2 FASTGEM MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE OR THE INTERNET. FASTGEM MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE AND THE INTERNET GENERALLY. DO NOT USE THE SERVICE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.

10.3 IN NO EVENT SHALL FASTGEM (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS, BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF FASTGEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.

10.4 THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW OR LIMIT THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

10.5 FASTGEM RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)

  1. INDEMNIFICATION
    You agree to defend, indemnify and hold harmless FASTGEM from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service or the Website or the placement or transmission of any message, information, software or other materials on the Website by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service or the Website.
  2. NOTICES
    12.1 Notices required under this Agreement by you shall be provided to This email address is being protected from spambots. You need JavaScript enabled to view it.. Notices by FASTGEM to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your home, as applicable. Notice of changes to this Agreement and these Terms of Service will be deemed given upon posting to the pages on the Website.

12.2 With regard to electronic communications, you and FASTGEM further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication ("email"), is legally sufficient to verify the sender's identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.

  1. GENERAL PROVISIONS
    13.1 All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including by way of illustration and not limitation, those clauses relating to Warranties and Limitation of Liability, and Indemnification, shall survive such termination, cancellation or expiration.

13.2 FASTGEM will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.

13.3 You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.

13.4  These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Louisiana without regard to conflict of law provisions of Louisiana law and, as to matters affecting copyrights, trademarks and patents, in addition, by applicable United States federal law.  Any controversy or claim arising out of or relating to these Terms and Conditions, or the breach thereof, except as noted below, shall be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules.  Any such arbitration will be governed by Louisiana law and will be held in Baton Rouge, Louisiana.  The arbitrator will be an expert in the field of Internet services and software.  The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  There shall be no class action arbitration pursuant to these Terms and Conditions. FASTGEM may seek injunctive relief in any venue of its choosing.  You hereby submit to personal jurisdiction in such courts and waive and agree to waive any defense or objection of lack of personal jurisdiction, improper venue or inconvenient forum with respect to any such action.  The parties hereto specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from these Terms and Conditions and any transaction between them that may be implemented in connection with these Terms and Conditions. 

13.5 In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. We reserve the right to modify the Service to reflect any change in any applicable tariff or underlying network service or component affecting the Service.

13.7 FASTGEM’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.

13.8 This Agreement, including all Attachments and all other policies posted on the Website, which are fully incorporated into this Agreement either by attachment or by reference, constitutes the entire agreement between you and FASTGEM with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.