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General Terms & Conditions

Bay Supply.com is a digital Platform/Website (the “Platform/Website”, “Website” or “Marketplace”) owned and operated by ACFR Industries, Inc. as a digital division (Bay Supply). Any use of “we”, “our” and the like shall mean reference to Bay Supply, Reference to “you” or “your” shall be regarded as reference to “Users’ / “member” whether registered or unregistered that are using the Bay Supply Platform/Website and are deemed to have accepted these Terms and Conditions, shall include the representative(s) of the company who are authorized to access the Platform/Website and use the online tools and Services and the company itself. You hereby agree that you have the authority to use the Platform/Website independently or shall only use the Platform/Website and Services for and on behalf of a company which you are employed by, or for and on behalf of a company who has authorized you or who has appointed you as their agent or representative, to access the Platform/Website to use the Services.

By using this Platform/Website, you acknowledge that you have read and hereby agree to these Terms and Conditions, including our Privacy Policy and any additional disclaimers or legal notices, and that you also agree to these Terms and Conditions for and or on behalf of the entity you represent. If you use Services offered through the Bay Supply Platform/Website (the “Services”), you shall also be bound by additional Terms and Conditions in relation to those Services.

Bay Supply may modify the Terms and Conditions to reflect changes in the Bay Supply business, applicable law or for other reasons deemed necessary by Bay Supply. Any modifications to the Terms and Conditions shall apply immediately upon such modification of Terms or Conditions being posted on the Platform/Website and such modifications will not require any preliminary notification to any User to be validly implemented. In any case, the newest version of the Terms and Conditions will apply, no matter the date of access or registration of the Users. Such changes and updates do not justify any claims such as a claim for damages by you against Bay Supply.

You understand and accept that you are solely responsible for reviewing these Terms and Conditions and any subsequent updates from time to time. Should you object to any of the Terms and Conditions, any guideline(s), or any change(s) incorporated into the Terms and Conditions now, or at a later date, you should discontinue accessing or using the Platform/Website, its Services and Contents as defined herein under these Terms and Conditions

Bay Supply is an online Platform/Website through which Users may source and procure goods from other Users, make offers and acceptance on the Platform/Website, and transact business together. These transactions of sale may include immediate purchases of available stock, backordered stock for future shipment date(s) or Quote requests and offer acceptances. Bay Supply operates as an Administrator of the Platform/Website, which provides Users with helpful online tools to assist Users to transact business together on the Platform/Website. These Terms and Conditions describe how Bay Supply cannot be considered a contracting partner with transactions between Users or be liable for the actions or violations of adherence to such Terms and Conditions by any User. These Terms and Conditions describe how the Terms of Use of the Platform/Website should be utilized by the Users and the conditions agreed by all Users with respects to the performance terms of business transactions conducted in the Platform/Website.

Our Terms of Use

As the Administrator of this Platform/Website, Bay Supply does not have any control over the actions of Users and the performance of their agreements with each other.  However, any User that violates the general Terms and Conditions in any way, may be subject to corrective actions such as site access, restrictions of use or Account suspension.

1)      User Registration and Access to Account

a)      Registered and non-registered Users have use of the Platform/Website. Some functions and Services may not be available to non-registered Users.

b)      Registered Users are uniquely identified by the email address they use for registration. Each registered User has control over their personal password for Account access. In using the Platform/Website, creating the Account or accessing the Account, you agree to the following: (i) to provide accurate and complete information about you as may be required in the registration information; (ii) to promptly update the Platform/Website if there are any changes in your registration information; (iii) keep Confidential your unique password used to access your Account; (iv) immediately contact Bay Supply if there is any unauthorized access to the Account, any breach of security regarding the Account, any unauthorized disclosure of data in the Account or if you suspect any such actions taking place. If you are setting up and operating an Account on behalf of any entity, you hereby represent and warrant that you are authorized by such entity to set up and maintain the Account and accept these Terms of Use on such entity’s behalf. Bay Supply reserves the right to terminate the Account if the Registration information is false or if you are not authorized to set up, maintain and operate the Account for the relevant entity.  If so, prompted by the Platform/Website system, you shall change your password to be able to continue using the Platform/Website and the Services. You shall not allow any Third-Party or any other entity to access the Account or use the Services under your personal password.

 

2)      Services

a)      Bay Supply believes it is in the best interest of Buyers and Sellers (“Users” or “User”) to complete transactions on the Platform/Website because Users of the Platform/Website are agreeing to adhere to the Terms and Conditions pertaining to each transaction. These Terms and Conditions include agreed timelines, cancelation terms, financial transaction agreements and product returns.  While Bay Supply does not guarantee the conduct or performance of any User of the Platform/Website, the Terms and Conditions provide the agreed conditions between Users and expectations related to the conduct and remedy to conclude, resolve, and successfully transact business.

b)      Bay Supply does not accept any responsibility in respect to: (i) the accuracy of product descriptions, specifications, images, Content, videos, or any other digital media, presented on the Platform/Website by any User; (ii) product defects or misaligned specifications as part of an agreement between Users; (iii) warranty of use or merchantability of products sold by Users.

c)      Bay Supply does not accept any responsibility in respects to User verification or authority and warns that there may be risks of dealing with companies, individuals, business units or entities acting under false pretenses.  Bay Supply does not confirm each User’s purported identity (including, without limitation to Platform/Website Users). We highly recommend and advise you to use also other means, as well as common sense, to evaluate any individual, company, business unit or entity you are dealing with through the Platform/Website.

d)      At times Bay Supply may enlist third-party Services to offer Users improved functions or efficiencies.  While Bay Supply may conduct a comprehensive evaluation of such Services and the value they may provide to Platform/Website Users, Bay does not accept any responsibility in respects to the independent operations or conduct of such third-party Service providers.

 

3)      Electronic Communication

In using the Services on the Platform/Website, you consent to Bay Supply sending you electronic messages such as email, text messages, mobile push messages or notices and other communications on this website.

4)      Usage of Platform/Website

a)      In using the Services on the Platform/Website, you will have to upload, submit, store, receive or send Content in connection with the entity you represent (the “Content”). You hereby grant Bay Supply a worldwide and royalty-free license to use, host, store, reproduce, modify, communicate, publish, publicly perform, publicly display, and distribute the Content for the purposes of Bay Supply customers with the Services. The rights granted in this license are also for the purposes of enabling Bay Supply to use analyze the Content to promote, market, improve and develop the Website and the Services. Bay Supply may share the Content with its related companies and affiliates as well as Third-Party Service providers to process and manage the Content. Such a license continues even after you cease to be Bay Supply’s customer.

 

b)     You agree not to publish, upload, email, post, transmit or otherwise make available Content that is unlawful, harmful, vulgar, obscene, hateful, racially, or religiously sensitive or otherwise objectionable. You agree not to publish Content that infringes the intellectual property rights of Third Parties. You agree not to publish Content that contains software viruses, trojan horse, work, time bomb, cancelbot or any other computer file or software designed to corrupt, interrupt or limit functionality of any computer hardware, software, or other property

c)      You agree not to impersonate any person or entity or misrepresent your affiliation with any other person or entity.

d)     You agree not to harass, defame, abuse, stalk or threaten the rights of other persons or entities rights of privacy.

e)     You agree not to harvest, collect, store, and use in any way the information or data of other Users of the Platform/Website or the Services for purposes other than that which the Services are designed for.

f)       You agree not to download any Content from the Platform/Website in the course of using the Services and use such Content for illegal purposes or for purposes unrelated to the Services or to offer Services similar to the Services.

g)      You agree not to gain unauthorized access to the Platform/Website or the Platform/Website providing the Services or any other computer systems, or networks related to the Platform/Website, whether through hacking, mining, or any other means.

h)     You agree not to take down the Platform/Website or amend any part of the Platform/Website.

i)       You agree not to copy, modify, distribute, transmit, display, publish, license, or create derivative works from, transfer or sell the Platform/Website or the Content on the Platform/Website.

j)       You agree not to copy or modify any part of the Services.

k)      You agree not to interfere with or disrupt the servers or network which supports the Platform/Website or breach any procedures, policies or regulations of networks connected to the Platform/Website.

l)       You agree not to reverse engineer, decompile, disassemble, or otherwise use source code of this Platform/Website to build a website similar to the website and not to violate any applicable local and international laws and their regulations.

 

5)      Personal Data Protection

When you use the Platform/Website or when you register with Bay Supply, you will have to provide Bay Supply with certain information, which may include information that identifies you personally, such as your name, contact details and email address (“Personal Data”). By providing Bay Supply with Personal Data, you agree that Bay Supply may collect, use, store, manage and otherwise process your Personal Data for the purpose of providing you with access to the Platform/Website and the Services. You agree to provide Bay Supply with complete and accurate information, including keeping your Personal Data accurate and updated. If you request to delete your Account with Bay Supply or your Personal Data, you will no longer be able to access Services. Bay Supply may share the Personal Data with its related companies and affiliates as well as Third-Party Service providers to process and manage your Personal Data for the purposes of promoting, marketing, improving, and developing the Platform/Website Services. The use of your Personal Data is subject to Bay Supply’s Privacy Policy, which can be accessed by clicking on the “Privacy” link at the footer of each page on the Platform/Website.

 

6)      Confidentiality

a)      You shall not disclose or use in any way the Confidential Information to which you are provided access through your use of the Platform/Website or the Services. You agree to take all reasonable measures, to the same extent that you take measures to protect your own Confidential information. You agree to keep the Confidential Information strictly Confidential, to use the Confidential Information solely for the purposes of fulfilling your obligations under the Terms of Use and any additional Terms and Conditions and not to disclose any Confidential Information to any party without the prior written consent of Bay Supply. The Confidential Information may only be disclosed to those within your company on a need-to-know basis or to your professional advisors, for the purposes of your company using our Services. As used herein, “Confidential Information” shall mean all information disclosed by Bay Supply in connection with the provision of the Services, including all trade secrets, information concerning operations, business affairs, customers, and suppliers of Bay Supply, information labelled as “Confidential” or that given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood as Confidential.

b)      All Content posted or uploaded by you to the Platform/Website shall be at your own risk and Bay Supply shall not be responsible for the use or misuse of such uploaded information by any other User of the Platform/Website.

c)      Your Confidentiality obligations herein shall continue even after you cease using the Platform/Website and/or after the termination of your Account.

 

7)      Intellectual Property Rights

a)      Bay Supply and the relevant licensors own all Intellectual Property Rights in the Platform/Website and the Services. Subject to these Terms of Use, Bay Supply grants you a limited, revocable, non-exclusive, and non-transferable license to access and use the Platform/Website and the Services in accordance with the Terms of Use and the additional Terms and Conditions. Nothing in these Terms of Use shall be deemed to give you the right to modify, copy, distribute, transmit, display, publish, reproduce, license, create derivative works from, transfer or sell any software used by Bay Supply for the Platform/Website and the provision of the Services or the Content in the Platform/Website and the Services. As used herein, the term “Intellectual Property Rights” means patents, design rights, industrial design rights, copyrights, trademark rights, Service marks, trade secrets or any other similar intangible property rights including applications for any of the foregoing in any country.

b)      You grant us worldwide, non-exclusive, royalty-free license to publish, reproduce and use your Intellectual Property Rights, specifically your trademark, logo, or brand, on the Platform/Website and for the purposes of our provision of Services.

 

8)      System Security and Availability

 

a)      You agree not to manipulate the Platform/Website for the Services and the functionality contained in the Platform/Website or the Platform/Website for the Services and not to introduce material data into the Platform/Website for the Services that could damage or steal other computer programs, computer systems, data, or information or to overload the infrastructure for the Platform/Website for the Services or that of other Users with large volumes of data not required for business purposes.

 

b)      Information distributed to you by Bay Supply in the password-protected areas of the Platform/Website may only be disclosed to Third Parties with the express prior written agreement of Bay Supply.

 

9)      Modification and Termination of Services

 

a)      Bay Supply is constantly changing and improving its Services. Bay Supply may add or remove functionalities or features. Bay Supply may, in its sole discretion, at any time discontinue providing, terminate or limit your access of the company you represent, to the Platform/Website or to any Content provided on or through the Platform/Website.  In the event that you are in material breach of these Terms of Use, Bay Supply may, at its sole discretion, suspend or terminate your Account on the Platform/Website, delete your Content from the Platform/Website, and refuse you any current or future use of the Platform/Website without notice.  In case of such suspension of use or termination of your Account, Bay Supply shall not be liable to you.

 

b)      If you wish to terminate your Account, please ensure that you are legally entitled to do so under the additional Terms and Conditions that you have agreed with Bay Supply.  You may then contact Bay Supply at help@Bay Supply.com

 

10)   Exclusion of Warranties

The Platform/Website and the Services are provided with a reasonable level of skill and care.  Other than as expressly set forth in these Terms of Use or the additional Terms and Conditions, Bay Supply does not make any specific warranty about the features or qualities of the Platform/Website or the Services, or any specific warranty that the information provided on the Platform/Website is error-free, complete and/or accurate.  The Platform/Website and the Services are provided on an “as is” basis without warranties of any kind (whether express or implied, arising by statute or otherwise in law or from a course of dealing or usage of trade).  To the extent permitted by applicable law, Bay Supply disclaims all other warranties, express or implied, including, without limitation, implied warranties of merchantability, satisfactory quality and/or fitness for a particular purpose, title, and non-infringement of third-party rights.  Statements on the Platform/Website are for explanatory purposes only and shall not constitute any warranty of certain features of the Platform/Website Services.  No warranty or undertaking shall be implied from any published description or advertisement by Bay Supply unless authorized personnel of Bay Supply expressly confirm such warranty or undertaking in writing.

 

11)   Limitation of Liability

Bay Supply shall not be liable in any way for any Content posted by Users of the Platform/Website and the Services, including but not limited to any errors or omissions in such Content, or for any losses or damages of any kind incurred as a result of your use or reliance on any Content posted on the Platform/Website for the Services.  You acknowledge and agree that, to the fullest extent permitted by applicable law neither Bay Supply nor the third-party Content providers will be liable for any loss arising out of or in any way related to your use of the Platform/Website.  Bay Supply shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to loss of profits, revenue, goodwill, data or other intangible losses (whether these are direct or indirect damages and even if Bay Supply had been advised of such losses), however caused, whether in contract or tort or otherwise arising out of or relating to your use of the Platform/Website and the Services; or your procurement of or your sale of goods and Services (including excess goods) using the Platform/Website for Services; or any unauthorized access to or alteration of your data.

12)   Indemnity

You shall indemnify Bay Supply, subsidiaries, affiliates or related companies, its officers, employees, agents and sub-contractors from any claims, demand, losses, damages, expenses, including reasonable attorney’s fees, made or suffered (as the case may be) by any Third-Party due to or arising out of your usage of the Platform/Website, your Content as posted or modified on the website, your breach of these Terms of Use or any additional Terms and Conditions, your unauthorized use of any Intellectual Property Rights owned by Bay Supply or your alleged violation of the rights of a Third-Party.

13)   Miscellaneous

a)      You may use the Services only as permitted by law, including applicable export and re-export control laws and regulations.  Bay Supply may suspend or stop providing Services to you if you do not comply with our Terms or policies or if Bay Supply is investigating suspected misconduct.

b)      Failure by Bay Supply to exercise or enforce any right or provision under these Terms of Use or additional Terms and Conditions shall not constitute a waiver of such rights or provision.

c)      To the extent that any provision in these Terms of Use or additional Terms and Conditions be found to be invalid or unenforceable, such provision shall be modified in such a manner as to make these Terms of Use or additional Terms and Conditions modified, legal and enforceable under applicable laws.  The rest of the provisions in the Terms of Use or additional Terms and Conditions shall not be affected.

14)   Governing Law

This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of New York, excluding its conflict of law rules.  The state and federal courts in Nassau County, Long Island, New York shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. You and Bay Supply hereby submit to the jurisdiction of said courts and waive any defense of forum non conveniens.

15)   Modification and Termination of Services

 

a)      Bay Supply is constantly changing and improving its Services. Bay Supply may add or remove functionalities or features. Bay Supply may, in its sole discretion, at any time discontinue providing, terminate or limit your access of the company you represent, to the Platform/Website or to any Content provided on or through the Platform/Website.  In the event that you are in material breach of these Terms of Use, Bay Supply may, at its sole discretion, suspend or terminate your Account on the Platform/Website, delete your Content from the Platform/Website, and refuse you any current or future use of the Platform/Website without notice.  In case of such suspension of use or termination of your Account, Bay Supply shall not be liable to you.

b)      If you wish to terminate your Account, please ensure that you are legally entitled to do so under the additional Terms and Conditions that you have agreed with Bay Supply.  You may then contact Bay Supply at help@Bay Supply.com

Buyer and Seller Terms of Sales

1)     PRELIMINARY

a)      Scope of Terms and Conditions: These conditions (defined Below) shall apply exclusively to all sales and quote transactions between Seller and Buyer for sale transactions conducted via the Bay Supply Platform/Website.

 

b)     Definitions:

“Buyer” means the buyer who purchases Goods from the Seller via the Bay Supply Platform/Website.

“Seller” means any User of the Bay Supply Platform/Website which will be the seller of Goods to the Buyer, and which will be specified in the Order Confirmation issued to the Buyer.

“Conditions” means these Terms of Sales and includes any special terms and conditions agreed in writing between Buyer and Seller.

“Contract” is formed between Buyer and Seller for the sale of goods or Services from Seller to Buyer once the Buyer places an order on the Bay Supply Platform/Website and after the Seller issues an Order Conformation to Buyer by Order Acceptance.

“Goods and/or Services” means the goods or Service of which are published by the Seller on the Bay Supply Platform/Website, and as selected by the Buyer in its online cart on the Platform/Website.

“Order” means the order placed by Buyer after Buyer has selected the Goods and/or Services in its online cart and checked out such Goods and/or Services on the Platform/Website.

“Backorder” means the order placed by Buyer after Buyer has selected the Goods and/or Services in its online cart that are not readily available by Seller and the order contains an estimated future ship date when the Goods and/or Services become available for fulfillment.

“Order Confirmation” means the order confirmation issued by the Seller’s acceptance on the Bay Supply Platform/Website to Buyer after Buyer has placed its order on the platform/Website.

“RFQ” means Request for Quote created by Buyer on the Platform/Website to gather Quote submissions from Sellers for Goods and/or Services to transact orders.

“Restocking Fee” means a fee that is chargeable by Seller to Buyer and agreed at the time of order between Buyer and Seller. This fee is to reimburse costs to Seller for material handling Goods should an order be fully or partially returned following shipment confirmation by Seller on the Platform/Website. This fee is proportionately applied to the amount of Goods returned to the Seller and is deducted from any refunds for such Goods issued to the Seller.

 

c)      Application of Conditions: These conditions shall be exclusive terms and conditions governing Buyer and Seller in the Buyer’s purchase of Goods and/or Services and Seller’s sale of Goods and/or Services via the Platform/Website. These Conditions shall override any contrary, different, or additional terms (if any) contained on or referred to in an order form or other documents or correspondence from Buyer. No addition, alteration, or substitution of any term in these Conditions shall bind Seller or form part of the Contract unless they are expressly accepted in writing by authorized personnel of the Seller.

 

d)     Headings: The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

2)     Purpose

 

a)      Purpose for Existing Users: To expand product offerings and Services to our existing network of Users.

 

b)     Purpose for Buyers: Bay Supply is committed to providing improved efficiencies for Buyers that actively source fastening products. Our goal is to improve the Platform/Website tools, Services, and resources to make sourcing, issuing, and managing RFQs more efficient. RFQ submission is targeted to Manufacturers, brands and distributors that are qualified to serve their sourcing needs with a single request and the tools to manage and transact business.  The Buy-Now Marketplace is designed to identify stock availability quickly and efficiently in the supply market for immediate procurement before utilizing the RFQ tools.

 

c)      Purpose for Manufacturers: Fastening Product Manufacturers benefit by having their products and brands discoverable to sourcing professionals on a platform that caters to the fastening products they manufacture.  The Platform/Website provides an expanded digital footprint to ensure a robust digital transformation strategy is in place for business expansion, brand integrity and digital tools to monitor demand for their brands and successful transactions through distribution.

 

d)     Purpose for Distributors: Distributors expand their digital marketing strategy by extending their digital real estate and ensuring they are discoverable to the professional Buyer community that uses the Platform/website regularly. RFQs are syndicated to distributors by the categories of products and/or the brands they sell. They have the option to participate in peer-to-peer transactions with other distributors through wholesale settings. The Platform/Website serves their sales organization by providing growth opportunities and immediate sale of on-hand inventories in the Buy-Now Marketplace.

 

3)     Platform Service Benefits

 

a)      Complete Custom Suite of Digital Software Tools: A portion of the Transaction Success fees paid to Bay Supply is regularly invested in Platform/Website improvements by enhancing the efficiencies of resourcing and online tools to improve the fastening products supply chain.

 

b)     Sales Taxes: A portion of the Transaction Success Fees paid to Bay Supply is utilized to fund software providers to dynamically manage all Sales Tax Processes. Bay Supply eliminates Sales Tax collection concerns for all Sellers on the Platform/Website.  Sales Tax collection and remittance in all required states is managed by the Platform/Website as part of our Services.  A digital database of all Buyer tax exemption certificates is self-maintained by Buyers online and through dashboard tools. Sales Taxes applicable to each transaction are automatically managed for each transaction.

 

Buyers are provided with online tools to submit and manage sales tax exemption certificates. Sales Taxes cannot be refunded after completing a purchase transaction should a Buyer submit a certificate for tax exemption following a completed purchase. 

 

Buyers also agree that any sales tax liability that occurs due to an inaccurate or faulty submitted tax exemption document found to be non-compliant with any state requirements shall become a tax liability of the Buyer and the Buyer agrees to submit any such taxes due to Bay Supply and payable to Bay Fastening Systems, Inc.

In the event a Buyer submits a tax exemption document that at is unacceptable to Bay Supply, Buyer agrees to re-submit such documents for review and approval within 30 days of the request and agrees that Bay is authorized to collect any applicable Sales Taxes for the appropriate state from Buyer should the Buyer fail to comply by submitting new tax exemption documents for Bay Supply for review and approval within 30 days from the request date.

c)      Digital Marketing and SEO: A portion of the Transaction Success Fees paid to Bay Supply is utilized to fund continued Search Engine Optimization for all products, manufacturers, brands, and categories on the Platform/Website to continuously improve discoverability for our Users.

In addition, Google advertising is funded by Bay Supply and other third-party software Service providers to directly advertise the products, manufacturers, brands, and categories of our Users.

d)     Third-Party Service Providers:  A portion of the Transaction Success Fees paid to Bay Supply is utilized to fund Platform/Website Service Providers for shipping logistics, financial transaction management, processing and other Services provided to our Users

 

e)     The continued cost of maintaining the Bay Supply Platform/Website, the supporting tools, digital resources, and Services are offset by our Transaction Success Fee. Without it, we cannot continue to support, maintain, or enhance these Services for our Users.

 

4)     Bay Supply Success Fees

 

a)      The Seller agrees to pay Bay Supply a Success Fee of 9% of the total order amount of a sale transaction inclusive of shipping costs (if applicable) with a maximum fee per transaction of $500. In the event of order cancelation or returned goods for a refund amount to the Buyer, the Bay Supply Success Fee is proportionately refunded to the Seller. Sellers agree to include such fees in the total amount refunded to the Buyer if it is determined that the Buyer is due a refund.

 

b)     Bay Supply’s Success Fee is subject to change at anytime at the absolute sole discretion of Bay Supply Personnel.

 

5)     Seller Performance Rewards and Restricted Access

 

a)      RFQ’s and Quote Submissions: All RFQs and User Quote submissions are dynamically monitored by the Platform/Website.  Successful Quote-To-Sale conversions place a Seller at a higher priority on the Platform/Website to continue to receive increased RFQs.  Sellers that fail to respond to RFQs before the Buyer requested expirations or Sellers with numerous Quote submissions that fail to have Successful Quote-To-Sale conversions will place the Seller at a lower priority on the Platform/Website and future RFQs received shall be greatly reduced or restricted. You agree that such control restrictions are at the absolute sole discretion of Bay Supply Personnel.

 

b)     Seller Communications with Buyer: The Platform/Website includes a “Comments” section in multiple areas for Buyers and Sellers to communicate regarding RFQs, Test Results, Certifications, and Order related inquiries.  Buyers and Sellers are notified via email that a Comment has been placed by a Buyer or Seller on the Platform/Website. Sellers are expected to respond to inquiries on a timely basis to ensure Buyers are kept informed and are effectively Serviced by Sellers. Comment response times are monitored by the Platform/Website to ensure Sellers are effectively communicating with Buyers.  Failure for a Seller to respond to a Buyer Comment in a timely fashion may result in restricted use for a Seller Account. You agree to monitor and respond to Comments in a reasonable and timely fashion.

 

c)      Forbidden Comment Content: Comments made to move transactions off the Platform/Website or content that includes Phone numbers, emails or URLs are strictly prohibited. Bay Supply is providing a resource and several supporting Services to our Users. You agree to continue to manage all transactions and communications between Buyers and Sellers that are initiated on the Platform/Website until the completion or failure of a transaction.  Failure to adhere to the intended use of the Platform/Website to the disadvantage of Bay Supply and other Users is strictly prohibited and will result in immediate Account Termination.

 

6)     Order Acceptance

All orders submitted by Buyer shall be deemed to be an offer by a Buyer to a Seller to purchase the selected Goods and/or Services in the online cart. All Sellers will receive an email notification of a pending order on the Platform/Website. To execute orders, Sellers are required to review the Order, Goods and/or Services included in the order, verify the ability to fulfill such order by Accepting the order on the Platform/Website. You agree to respond in a reasonable and timely fashion to review and accept orders received by the Platform/Website.

7)     Order Confirmation

 

After Buyer has submitted its order on the Platform/Website and Seller has accepted the order, Bay Supply shall send an order confirmation to the Buyer based on the email address provided by the Buyer when the Buyer registered for an online Account on the Platform/Website. The order confirmation shall set out the details of the Buyer’s order. A contract is formed between Buyer and Seller for the sale of Goods and/or Services from Seller to Buyer. Such Contract shall be subject to the Seller’s available stock of Goods.

 

8)     Order Cancelations

 

All orders submitted by a Buyer may be canceled prior to initial fulfilment of any portion of an order for a complete refund and if an order included an agreed restocking fee, the restocking fee is invalid and fully refundable to the Buyer since the order, or a portion of the order has not yet been fulfilled. Fulfilment is triggered by the Seller entering tracking information for a shipment pertaining to the order on the Platform/Website. You agree that once an order or portion of an order has been fulfilled by a Seller via entering tracking information on the Platform/Website, the order is non-cancelable.

 

9)     Restocking Fees

 

a)      Restocking Fees can only be applied to an order through the RFQ process.

 

b)     During the RFQ and Quote negotiation process between Buyer and Seller, the Seller has the option to charge a Restocking Fee in the event the Buyer elects to return all or a portion of the Goods purchased. Restocking Fees are clearly displayed on Quotes from Sellers if they are applicable, and you accept that any proportionate Restocking Fees applicable to the portion of Goods returned is non-refundable.

 

c)      You agree that when a Seller includes a Restocking Fee in an RFQ that results in a Quote-To-Sale conversion on the Platform/Website, it is an acceptance that the Goods or a portion of the Goods on the order are returnable in the same condition that they were fulfilled to the Seller.

 

d)     You agree as a Seller that when a Restocking Fee is included in an order and agreed between Buyer and Seller, the order is returnable for a complete refund minus the applicable Restocking Fee for the Goods returned.

 

10)  Backorders

 

a)      The sourcing Platform/Website provides valuable tools for a Buyer to source readily available on-hand inventories withing the supply market from all Sellers by using the site filtering “in-stock only” while conducting a search.  It is a common occurrence that the supply in the market is insufficient to meet the current or future demands of a Buyer and a Buyer may elect to place a Backorder for Goods to be received at a future date agreed with a Seller for fulfillment. The Platform/Website displays the Average Leadtime and Expected date of receipt to the Seller to fulfill a Backorder submitted by a Buyer.

 

b)     Backorders may be submitted by a Buyer in the Buy-Now marketplace or by submitting an RFQ and converting a Quote-To-Sale transaction with a Seller. It is important that both Buyer and Seller confirm the accuracy of the future expected date of receipt of the Goods to ensure a successful transaction for both parties.

 

c)      You agree that Backorders are non-cancelable and non-refundable unless the order includes an agreed Restocking Fee by the Seller; in which case, the order is fully refundable except for the appliable Restocking Fee based on the amount of Goods returned by the buyer in the same condition that they were fulfilled by the Seller.

 

d)     Both Buyer and Seller have access to orders placed on the Platform/Website in their Account Dashboard.  Backorders are clearly identified and the Expected date of receipt for fulfillment agreed between Buyer and Seller is displayed and color highlighted based on the widow of time remaining for the pending Expected date. You agree to monitor expected dates on Backorders periodically and use Comments to communicate status with Sellers for any updates or status requests by Buyers.

 

e)     You agree that a Backorder may be canceled if the Goods are not fulfilled by the Expected date following a 30-day grace period and the Backorder is fully refundable to Buyer inclusive of any Restocking Fees agreed between Buyer and Seller on the order.

 

f)       You agree if a Backorder is fulfilled before or upon the Expected Date or within the 30-day grace period following the Expected date, the order is considered non-cancelable and non-refundable. Fulfillment is triggered by the action of the Seller entering tracking information for a shipment of the Backordered Goods on the Platform.  If the Backorder included a Restocking Fee agreed between the Buyer and Seller, any returned Goods from the Buyer to the Seller are subject to the Restocking Fee based on the amount of Goods returned by the buyer in the same condition that they were fulfilled by the Seller and the Seller must issue the applicable refund for the returned Goods after deducting the applicable Restocking Fee.

 

11)  Modification and Cancellation of Order

 

a)      If an error or inaccuracy is discovered, Seller shall contact Buyer through Comments related to the order to modify or cancel the order on the Platform/Website.

 

b)     Seller has the right to modify or cancel certain Goods in the order and Seller shall not be held liable to Buyer in connection with such modification or cancellation of Goods in Buyer’s order. If Buyer agrees to such modification or cancellation of Goods (as the case may be), a new Contract shall then be formed between Buyer and Seller based on the modified order and the original order of Buyer shall no longer be binding on the Parties. If Buyer does not agree to such modification on the order, then the original order of the Buyer shall be deemed cancelled. Such modification or cancellation of Goods and/or Services shall be updated accordingly on the dashboard of both Buyer and Seller Account. In the case where Buyer’s original order is cancelled based on terms hereunder, Seller shall have no further liability towards Buyer nor any obligation to fulfill the original order.

 

12)  Seller Sub-Merchant Account Requirements

To become a registered Seller on the Platform/Website, you agree to operating as a sub-merchant Account of Bay Supply with various payment gateways available to Buyers to transact orders. To provide Buyers with a uniform process of financially transacting sales with all Sellers, when a Seller Registers on Bay Supply, they are automatically added as a sub-merchant on the payment gateway to facilitate financial transactions.

13)  Seller Transaction Payment Terms

 

a)      Sellers are paid directly by the Merchant Service Providers on the Platform/Website minus the Transaction Success Fees payable to Bay Supply.  Bay Supply does not collect, retain, or act in any way as an escrow agent of any Seller monies related to each Sale transaction.  Bay Supply is not a party to contracts between Buyer and Seller.  Bay Supply collects a Transaction Success Fee as an independent Merchant for facilitating a transaction using the Services provided on the Platform/Website.

 

b)     Payment to Sellers is triggered by Fulfillment.  Fulfillment is when a Seller enters tracking information for a shipment against an order or portion of an order.  The payments released to the Seller are always in proportion to the amount of the Goods fulfilled with tracking information entered on the platform or upon a successful upload of a Test result or Certificate ordered by a Buyer related to Goods and Services as part of an order.

 

c)      Buyers are offered 30-day or 60-day payment terms by a Merchant Service Provider on the Platform/Website.  During the Seller Application process to establish Merchant Accounts, you will be applying for a Merchant Account to participate in this payment gateway (Balance).  As a Merchant for (Balance), you will still receive your payments upon fulfillment of Goods (as specified above). (Balance) provides Buyers with the flexibility of establishing a credit line for the Platform/Website and paying 30-day or 60-day terms. The risk of future collections is transferred to (balance) so Seller payments are not delayed or placed at risk following successful order fulfillment.

 

d)     While the Platform/Website requires all Sellers to participate with Sub-Merchant Accounts with the Merchant Service Providers offered for payment gateways, you understand that the contract and terms agreed between you and the Merchant Service Providers does not include or make Bay Supply a party to such contractual agreements in any way.  You understand that you have a choice not to contract with the Platform/Website Merchant Service Providers and elect not to participate as a Seller on Bay Supply.  You also agree that Bay Supply cannot be liable for any disputes of payment or discrepancies that may occur between you and the Merchant Service Providers you Contract with or the Customers you Contract with.  Bay Supply is simply acting as a facilitator for Buyers, Sellers, and Service Providers to independently and at their sole discretion, contract and transact business together. Bay is not a party to any Contract between Buyer, Seller, or their agreed contracts with Platform/Website Service providers.

 

14)  Force Majeure

Sellers shall not be under any liability for any delay (whether material or not) in, or failure of a shipment or delivery of Goods or failure to perform any of its obligations hereunder due to an occurrence of Force Majeure.  “Force Majeure” includes, without limitation, delays arising out of acts of God, acts of government, agency or instrumentally thereof (whether fact or law), acts of a public enemy, acts of terrorism, riots, embargoes, strikes or other concerted acts of workmen (whether of Seller or other persons)., casualties or accidents, deliveries of materials, transportation of shortage of cars, trucks, fuel power, labor or materials, electrical or power outages, are beyond Seller’s control or which otherwise prevent or hinder the delivery of the Goods (without regards to the availability of the Goods otherwise in the market) or the performance by Seller of any of its obligations hereunder. If any of these events occur, the delivery of the Goods or the performance by the Seller of its obligations, as the case may be, may at the Seller’s option, upon written notice to the Buyer of the occurrence of such event, be either cancelled or deferred without liability of the Seller until such time as Seller elects to deliver the Goods and perform such obligations.

15)  International Order Duties and Taxes

 

When Bay Supply offers international Buyers the opportunity to purchase Goods and/or Services on the Platform/Website, all required Duties and Taxes will be collected at the point of checkout from the Buyer to reduce any disruption of logistics by Customs regarding order receipt and release to Buyers.

 

16)  Acceptance of Goods

Buyer shall carefully inspect all Goods promptly after arrival of the Goods at the point of destination to which the Goods are to be shipped and report any quality or quantity shortages or defects to Buyer within ten (10) calendar days of such arrival of the Goods using the Platform/Website Comment tools to maintain record of account communications. Such a notice by the Buyer to Seller shall include a description of the alleged defect or error.

17)  Seller’s Provision of Information to Bay Supply

 

a)      Seller shall periodically provide the following information to Bay Supply:

i)       Manufacturer part/code number (MPN)

ii)      Manufacturer

iii)     Brands

iv)     Price (the “Product Price”)

v)      Quantity of Goods available

vi)     Average lead time

vii)    Packaging type and/or condition

 

b)     Seller shall ensure the accuracy of all information provided for the Products at all times and promptly update the Platform/Website when such Products are no longer available for sale.

 

c)      Seller shall provide the information required under Section 17 to Platform/Website in such a format as may be required by Bay Supply and/or by uploading such information onto the Platform/Website as required by Bay Supply.

 

d)     Bay Supply shall have the right to use the information uploaded by the Seller onto the Platform/Website and modify it as it deems necessary for the purposes of Bay Supply selling the Products on the Platform/Website to the Customers.

 

18)  Security Interest

Buyer hereby grants to Seller a continuing security interest in the Goods which shall remain in full force and effect until the indefeasible payment or satisfaction in full of all of Buyer’s obligations to Seller hereunder.  Buyer agrees that until such time, Seller is authorized to file or record any financing statement or other document without the signature or other consent of Buyer if permitted by applicable law.

19)  Assignability

These Conditions shall be binding upon and inure to the benefit of the successors and assigns of Seller and Buyer and may be novated or assigned to any successor organization or affiliate of Seller without written consent of Buyer to Seller or Seller to Buyer.

20)  Export Control

Each of the Buyer and Seller agree to comply with all applicable export control laws and regulations with respect to the Goods sold hereunder.

21)  Users’ Trading and Contracting Business Transactions with Service Providers

 

a)      Bay Supply only acts as a passive conduit and Platform/Website for the exchange of users’; Content which further enables trade or business transactions between the concerned users, but does not represent either the Seller, the Buyer or the Service Providers participating on the Platform/Website in any specific transaction. Bay Supply under any circumstances, whatsoever is not involved in, control or otherwise endorse any trade or business transactions between Buyers and Sellers or their transactions with Platform Service Providers and shall not be held legally responsible, liable or accountable in any manner whatsoever in relation thereto, namely but not restrictively, if the products are not available, not delivered on time, not of the quality or quantity represented, are defective, faulty, dangerous, counterfeit or otherwise not lawful or not satisfactory etc.

 

b)     Each User acknowledges that it is fully assuming the risks of conducting any purchases and sale or business transactions in connection with using the Platform/Website or its Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to products or Services that are the subject of transactions using the Platform/Website. Such risks shall include, but are not limited to, misrepresentation of users’ products and Services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment, cost miscalculations, breach of warranty, breach of contract and transportation accidents etc. Such risks also include the risk that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of the users’ products or Services offered or displayed on the Platform/Website may violate or may be asserted to violate third-party rights, and the risk that the user may incur costs of defense or other costs in connection with third-parties’ assertion of third-party rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by third-party rights claimants. Such risks also include the risks that consumers, other purchasers, end-users of products or others claiming to have suffered injuries or harms relating to products originally obtained by users of the Platform/Website as a result of purchase and sale transactions in connection with using the Platform/Website may suffer harms and/or assert claims arising from their use of such products. Each user agrees that Bay Supply, its subsidiaries, affiliates, officers, or employees shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with the said risks.

 

c)      Bay Supply has set some guidelines for transaction management in these Terms and Conditions in an effort establish a uniform foundation for expected professional conduct of Buyers and Sellers.  Our goal is to assist in defining a method of transacting business and establishing a solid foundation for Buyers and Sellers to independently establish successful transactions on the Platform/Website.  In the event that any user has a dispute with any party to a transaction, such disputing users hereby releases, holds harmless or indemnifies Bay Supply, its subsidiaries, affiliates, officers and employed personnel from all claims, demands, actions, proceedings, costs, expenses, and damages (including without limitation any actual, special, incidental or consequential damages and loss of profit and business) arising out of or in connection with such transaction.

 

22)  Delivery

 

a)      Seller shall ensure that the Products are properly packed and secured in such a manner as to enable them to reach their destination in good condition.

 

b)     Each delivery of Products shall be accompanied by a delivery document with (i) Order Number, (ii) the quantity of Products, and (iii) the manufacturer part number (MPN), (iv) the Product part information and any other information as required by Bay Supply.

 

c)       Seller shall enter shipment tracking information on the Platform/Website on the same day that they are in receipt of tracking information for a shipment. The entering of a valid tracking number triggers the release of the appropriate payment to the Seller.

 

23)  Warranties and Remedies

If the Products are defective or otherwise do not meet compliance of specifications defined on the order based on manufacturer specifications, then, without limiting any of its other rights or remedies, and whether or not the Buyer has accepted the Goods, Buyer may exercise any one or more of the following remedies:

i)       Return the non-conforming Products to the Seller for a refund of the full invoice price plus payment of transportation charges for such defective or otherwise non-conforming Products.

 

ii)      Have Seller replace the defective or non-conforming Products with non-defective and conforming Products.

 

The preceding remedies for Buyer may only be exercised by the Buyer and facilitated by the Seller under the condition that the non-conforming Products are received by the Seller in the same condition as they were released to the Buyer.

 

24)  Entire Agreement

These Conditions and the Existing Agreement (if any) constitute the entire agreement between Buyer and Seller relating to the subject matter hereof.  There are no agreements, understandings, restrictions, warranties, or representations between Buyer and Seller relating to the subject matter hereof other than those as set forth herein.

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