Revised December 2017
Background. AGEX Inc., a Texas corporation (“AGEX,” “our,” “us,” or “we”), provides a proprietary service (including web-based portals, applications (including AGEX Connect), tools and services, collectively, the “AGEX Service”) that is designed to connect buyers (“Buyers”) and sellers (“Sellers”) of livestock (“Livestock”), and to facilitate transactions among Buyers and Sellers who use the AGEX Service (together, “Users”).
Acceptance. This Affiliate User Agreement (this “Agreement”) governs the terms and conditions pursuant to which AGEX will provide you, an affiliate registering for AGEX Connect (“Affiliate” or “you”), with access to and use of the Affiliate Software, the AGEX Service, and/or Affiliate Equipment (defined below).
By clicking the “I AGREE” button or using the Affiliate Software, the AGEX Service, and/or Affiliate Equipment, you agree, effective as of such date (the “Effective Date”), to be bound by this Agreement.
You are only authorized to use the Affiliate Software, the AGEX Service, and/or Affiliate Equipment if you agree to abide by all applicable laws and this Agreement. Please read this Agreement carefully and save it. If you do not agree with it, you should discontinue use of the Affiliate Software and/or Affiliate Equipment immediately.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE CERTAIN DISPUTES WITH AGEX ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
- “Affiliate Equipment” means Mobile Devices, Smart Chutes, and AGEX ear tags.
- “Affiliate Software” means, collectively, the Affiliate-facing version of AGEX Connect, AGEX Connect, the AGEX Platform and any other software provided by AGEX that enables Affiliates to upload or modify Livestock Content and Data, as such software may be updated or modified from time to time.
- “AGEX Connect” means AGEX’s proprietary mobile application, as may be modified from time to time, licensed by AGEX to Users and Affiliates that enables Affiliates to upload Livestock Content and Data for Users to access the Livestock Content and Data on the AGEX Platform.
- “AGEX Platform” means AGEX’s proprietary software that enables Users to engage in the auction, sale and purchase of livestock online, as may be modified from time to time.
- “Livestock Content and Data” means any data (including, without limitation, animal weights, age, breed, veterinary history, vaccination history, weaning history, forage history, physical location history, and all other animal characteristics, animal history, and herd management data), text, photos, videos and all other content related or pertaining to Livestock, including all intellectual property rights therein, that is inputted or uploaded into the AGEX Service or otherwise submitted by or obtained from a User or an Affiliate.
- “Livestock Services” means services you provide by tagging livestock, placing livestock in the AGEX Chute, and uploading Livestock Content and Data to the AGEX Platform. Livestock Services does not include any additional services or work on the part of Affiliate(s), which additional services may include, but are not limited to, gathering Livestock from pasture or other handling of Livestock, veterinary or vaccination treatment of Livestock, transportation of Livestock, or other field services (collectively, “Additional Affiliate Services”).
- “Mobile Device” means one or more mobile or other devices provided to you by AGEX on which the Affiliate Software has been installed.
- “Smart Chute” means an AGEX squeeze chute, which may be enabled with specialized AGEX technology to collect Livestock Content and Data.
- “User” means an end user of AGEX Connect, the AGEX Service, or the AGEX Platform.
2. Use of the Affiliate Software; Mobile Devices; Smart Chute.
- Provision of the Affiliate Software. Subject to the terms and conditions of this Agreement, AGEX will provide you with access to the Affiliate Software on a non-exclusive basis during the Term of this Agreement.
- Mobile Devices. AGEX may provide one or more Mobile Devices to Affiliates who provide Livestock Services. Any Mobile Device is provided to you solely for your use in connection with providing Livestock Services to AGEX in accordance with this Agreement, and not for personal use. You acknowledge and agree: (i) you are responsible for the maintenance of the Mobile Device, provided that AGEX shall provide a connectivity plan; (ii) AGEX shall install or otherwise make available the Affiliate Software for use on the Mobile Device; (iii) AGEX provides the Mobile Device free-of-charge and retains sole and exclusive ownership of the Mobile Device; (iv) you agree to promptly return the Mobile Device upon termination or expiration of the Agreement or if otherwise requested by AGEX; (v) you may only use the Mobile Device to collect, upload and enter Livestock Content and Data, or to otherwise provide Livestock Services, in accordance with this Agreement, (vi) you agree that you are fully responsible for and agree to reimburse AGEX for any loss of or damage to the Mobile Device; and (viii) you will be charged a fee of $200 if you fail to return the Mobile Device within ten (10) days of the termination or expiration of this Agreement.
- License. AGEX hereby grants you a personal, non-exclusive, non-transferable license to use the Affiliate Software on the Mobile Device solely for the purpose of uploading Livestock Content and Data to the AGEX Platform and to otherwise provide Livestock Services, all in accordance with the terms of this Agreement. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Affiliate Software (or any content or data associated therewith) with any third party, unless otherwise authorized under this Agreement, or a separate written agreement with, or published policy of, AGEX. The foregoing license grant shall immediately terminate in the event that you cease to provide Livestock Services or upon the termination or expiration of this Agreement, whichever occurs first.
- Smart Chute. AGEX may provide you with one or more: (a) Smart Chutes; and (b) AGEX ear tags for Livestock to use in connection with the Smart Chute and the Affiliate Software. Livestock must be tagged with the AGEX ear tags for Livestock Content and Data to be properly stored on the AGEX Platform. You acknowledge and agree that (i) you are fully responsible for and agree to reimburse AGEX for any loss of or damage to a Smart Chute; (ii) you will not share or permit any third-party to use the Smart Chute (other than Affiliates using AGEX Connect); (iii) you will not disassemble, modify, tamper with or reverse engineer any Smart Chute or Scan Gun; (iv) you will cease using and promptly return to AGEX the Smart Chute upon termination or expiration of this Agreement, or upon the request of AGEX; (v) you will provide AGEX with access to the Smart Chute to permit AGEX to inspect, repair, modify or remove the Smart Chute at any time upon reasonable notice; (vi) you will follow all AGEX instructions or protocols in connection with your use of the Smart Chute and AGEX ear tags; (vii) you will not use or permit any third party to use the Smart Chute other than for the express purpose provided in this Agreement; and (viii) AGEX will retain sole ownership of the Smart Chute and any AGEX ear tags provided to you or any Seller.
- Livestock Services; Livestock Content and Data.
- Discretion. You retain total and complete discretion as to when you do and do not use the Affiliate Software or the Affiliate Equipment, or otherwise provide Livestock Services. There are no set times or days during which you must provide Livestock Services or use the Affiliate Software and you may choose not to use it all. If and when you choose to provide Livestock Services, or use the Affiliate Software and upload Livestock Content and Data, and such Livestock are successfully sold through the use of the AGEX Service, you will receive the commissions in accordance with Section 4.
- Seller Consent. You shall, prior to collecting or uploading any Livestock Content and Data using Affiliate Equipment, Affiliate Software, or the AGEX Platform:
- obtain the consent of the Seller of any Livestock; and
- cease doing any of the foregoing immediately upon the request of the Seller.
- Representations. You represent and warrant that (a) you have obtained all permissions and consents of each Seller to (i) collect the Livestock Content and Data; and (ii) to upload the Livestock Content and Data onto the AGEX Platform; and (b) that the Livestock Content and Data with respect to any given animal is complete and accurate at the time you upload or enter it using the Affiliate Software or the AGEX Platform.
- Your Relationship with AGEX. You and AGEX acknowledge and agree that AGEX will not direct or control your interactions with Sellers or Buyers, or otherwise direct or control your acts or omissions. Rather, you retain total and complete discretion to provide Livestock Services and/or other services or otherwise engage in any other business and ranching activities. If you use the Affiliate Software or Affiliate Equipment, this Agreement shall apply. You and AGEX further acknowledge and agree you may provide services to Users without use of the Affiliate Software and thus outside the scope of this Agreement. If you perform Additional Affiliate Services for any Seller or Buyer, you acknowledge and agree to look solely to such third party for any compensation therefor, and that AGEX has no responsibility for any payment to you other than as set forth in Section 4. You further acknowledge that AGEX is not responsible for and shall not be liable for actions taken or promises made by Sellers, Buyers or Affiliates with respect to any Additional Affiliate Services, and that it is your sole responsibility to contract with and receive payment for any Additional Affiliate Services, and to comply with all applicable law in doing the same. You accept all risks related to interacting with and transacting with Sellers and Buyers with respect to Additional Affiliate Services.
- Affiliate Equipment Rental Terms. In addition to the terms and conditions set forth herein, AGEX’s then-current equipment rental terms (including terms regarding rental fees due thereunder), a current copy of which is attached to this Agreement as Addendum 1, shall apply to any Affiliate Equipment provided to you by AGEX.
3. Your Responsibilities.
- General Requirements. You represent and warrant to AGEX that the information that you have provided and will provide to AGEX is and will be current, true, accurate, supportable and complete. If you choose to direct or place Livestock into the Smart Chute or tag any Livestock with AGEX ear tags, you acknowledge and agree you shall: (i) use your best efforts to get accurate data; and (ii) maintain insurance as required by Section 5(a).
- Compliance with Laws and Conduct. You agree you will comply with all applicable laws, rules and regulations in connection with your use of the Affiliate Software and the Affiliate Equipment. You will meet AGEX’s minimum performance/Affiliate standards as published from time to time. You agree you will not cause any nuisance, annoyance, inconvenience, property damage or personal injury, in connection with your use of the Affiliate Software or Affiliate Equipment.
- Expenses. Except as expressly set forth herein, you are solely responsible for your own costs and expenses.
- Notification. You agree to notify AGEX if any event occurs (i) that might reasonably affect your ability to competently or safely provide Livestock Services; (ii) that might or does cause you to be in violation of this Agreement; or (iii) results in damage or injury to any person or property in connection with your provision of Livestock Services..
4. Fees; Method of Payment.
- Fees. As full compensation for your Livestock Services with respect to any given Livestock, AGEX will pay you a commission equal to one percent (1.0%) of the purchase price paid by a Buyer for any Livestock (i) that you have successfully registered via the Affiliate Software; (ii) successfully sells through the AGEX Service; and (iii) as to which AGEX has been paid in full its applicable fee (collectively, a “Successful Sale”).
- Method of Payment. AGEX shall remit any amounts due to you hereunder within three (3) business days following receipt in full by AGEX of funds due from a Buyer at the completion of a Successful Sale, by issuance of check or wire transfer.
- Personal Coverage. AGEX shall not be responsible for loss or damage to Affiliate Equipment in Affiliate’s custody or control, or for loss or damage to any other property, material, or other equipment belonging to Affiliate. Affiliate is encouraged to obtain appropriate equipment, material, liability, or other insurance against such risk of loss and/or liability. Affiliate and its insurers waive all rights of subrogation against AGEX for such losses
- Accident Notification. You are required to promptly notify AGEX at firstname.lastname@example.org of any accidents, damage or personal injury that occurs while providing Livestock Services and to cooperate and provide all necessary information related thereto.
6. Relationship of the Parties
- Independent Contractor. As noted above, you retain complete and total discretion as to whether, when, where, and for how long you provide Livestock Services or otherwise use the Affiliate Software. You and AGEX agree you are an independent contractor of AGEX, not an employee. You and AGEX further expressly agree: (i) this Agreement is not an employment agreement, nor does it create an employment relationship, between AGEX and you; and (ii) no joint venture, partnership, or agency relationship exists between AGEX and you. You acknowledge and agree that you are obligated to report as income all payments received by you pursuant to this Agreement, and you agree to and acknowledge the obligation to pay all self-employment and other taxes thereon.
- No Authority. You acknowledge and agree that you have no authority to bind AGEX and you undertake not to hold yourself out as an employee, agent or authorized representative of AGEX.
- No Benefits. You acknowledge and agree and it is the intent of the parties that you will not receive any AGEX-sponsored benefits from AGEX either as a consultant or employee. If you are reclassified by a governmental agency or court as an employee, you will become a reclassified employee and will receive no benefits except those mandated by applicable law, even if by the terms of the AGEX’s benefit plans in effect at the time of such reclassification you would otherwise be eligible for such benefits.
7. Limitations on Availability.
Use of the Affiliate Software is void where prohibited. AGEX may also impose limits on the use or access to the Affiliate Software as required by law.
This Agreement will commence on the Effective Date and will continue until terminated as set forth herein (the “Term”). AGEX may terminate this Agreement immediately with or without notice to you and may otherwise limit your access to the Affiliate Software. You may terminate this Agreement upon two (2) days written notice by notifying AGEX at email@example.com. Upon termination of this Agreement by either AGEX or you, you shall immediately cease all use of and all access to the Affiliate Software and the Affiliate Equipment. Immediately upon the termination of this Agreement, or upon AGEX’s earlier request, you will deliver to AGEX any Mobile Device, any Smart Chute(s), and any AGEX ear tags you may have in your possession or control, as well as any AGEX property or Confidential Information you have in your possession or control. Sections 2-4, 6-11 and 13-20 of this Agreement shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect.
9. Proprietary Rights.
- Reservation of Rights. AGEX reserves all rights in and to AGEX Connect, the AGEX Platform, the AGEX Service, the Affiliate Software, the Affiliate Equipment and all AGEX Intellectual Property Rights (defined below). “AGEX,” and all associated logos used or displayed on or within any of the foregoing are our trademarks (unless otherwise noted). “Intellectual Property Rights” means all copyrights, trademarks, patents, publicity, moral, database, and/or other intellectual property rights. AGEX grants you, during the term of this Agreement, a license to display AGEX’s logo and trademark on your website or as otherwise approved by AGEX for the purpose of publicizing your relationship with AGEX as an Affiliate, provided that (i) any such display is in accordance with AGEX’s trademark usage guidelines as communicated to you from time to time; and (ii) AGEX may terminate such license at any time for any reason or no reason. If an Affiliate submits comments, suggestions, or other feedback regarding AGEX Connect, the Affiliate Equipment or the AGEX Platform (“Feedback”), AGEX will be free to use such Feedback for any purpose without any obligation to the Affiliate.
- Restrictions On Use. You may use the Affiliate Software and the Affiliate Equipment solely in connection with providing Livestock Services in accordance with this Agreement. You may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Affiliate Software or the Affiliate Equipment, or make it available to any third party, other than as expressly set forth herein. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Affiliate Software or Affiliate Equipment, or any part thereof. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). You shall not exploit the Affiliate Software or Affiliate Equipment in any unauthorized way whatsoever.
- Content and Data Ownership. AGEX shall own any and all Livestock Content and Data, and you hereby assign all right, title and interest in and to the same to AGEX. AGEX hereby grants to Affiliate a non-exclusive, non-transferable, non-sublicenseable, limited license to access, view and modify the Livestock Content and Data solely as required to provide the Livestock Services during the term of this Agreement.
As between AGEX and yourself, you acknowledge that Affiliate Software, AGEX Connect, the AGEX Platform, the AGEX Service, any information about Buyers or Sellers received in performing the Livestock Services, the terms of this Agreement, the Intellectual Property Rights of AGEX, and any other proprietary or confidential information provided by AGEX or accessed by Affiliate constitutes AGEX’s valuable proprietary information and trade secrets (“AGEX Confidential Information”). Affiliate agrees to preserve the confidential nature of AGEX’s Confidential Information by retaining and using it in trust and confidence, solely for internal use except as provided herein, and by using the same degree of protection that AGEX uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Without limiting the generality of the foregoing, you agree not to disclose any information regarding the confidential features or functionality of the Affiliate Software or the Affiliate Equipment to any third party. AGEX shall have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
11. Consent to Communications.
YOU CONSENT TO RECEIVE MESSAGES (WHETHER BY PHONE, EMAIL, TEXT MESSAGES OR PUSH NOTIFICATIONS) FROM AGEX, USERS AND/OR OUR THIRD-PARTY PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY PHONE NUMBERS AND EMAIL ADDRESSES AND OTHER INFORMATION MAY BE USED FOR THE PURPOSE OF INITIATING COMMERCIAL MESSAGES. We will allow you to opt out of receiving some of these messages, but to stop receiving any messages from us whatsoever (including administrative messages regarding the Affiliate Software), you will need to terminate this Agreement. You agree to maintain an updated phone number and email address with AGEX. In the unlikely event you receive a communication from AGEX or any other Affiliate or User that you believe could violate the terms of this Agreement, you agree to promptly notify AGEX at firstname.lastname@example.org.
12. Interactions with Sellers.
AGEX Connect and the AGEX Service are designed to facilitate transactions among Buyers and Sellers. You solely accept all risks related to interacting with Sellers and Buyers. You are solely responsible for obtaining consent of Sellers for entering their property. Sellers may, in their sole discretion, choose (a) whether to auction or sell their Livestock via the AGEX Platform; (b) which animals to place for sale or auction; and (c) the terms of any such sale. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH SELLERS. YOU SHALL NOT PLACE ANY ANIMAL FOR AUCTION UNLESS YOU ARE GIVEN PERMISSION TO DO SO BY THE OWNER OF SUCH ANIMAL. AGEX reserves the right, but has no obligation, to monitor or help resolve disputes among Affiliates and Users.
YOU AGREE THAT AGEX WILL BE RELIEVED OF ALL LIABILITY AND RESPONSIBILITY FOR, AND YOU EXPRESSLY WAIVE AND RELEASE AGEX FROM, ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY OF YOUR OR ANY USER’S ACT OR OMISSION, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY.
14. Disclaimer of Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGEX SERVICE, AGEX CONNECT, AFFILIATE SOFTWARE AND AFFILIATE EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NONINFRINGEMENT. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE AFFILIATE SOFTWARE OR AFFILIATE EQUIPMENT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
15. Limitation of Liability.
IN NO EVENT SHALL AGEX, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE AFFILIATE SOFTWARE, THE AGEX PLATFORM, THE LIVESTOCK CONTENT OR DATA, THE AGEX SERVICE, OR THE AFFILIATE EQUIPMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF AGEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AGEX OR ITS SUBSIDIARIES HAVE AGGREGATE LIABILITY HEREUNDER FOR DAMAGES IN EXCESS OF THE AMOUNT AFFILIATE EARNED IN CONNECTION WITH THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY.
AFFILIATE AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS AGEX AND ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY LOSS, LIABILITY, CLAIM, OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES AND MONETARY JUDGMENTS AGAINST AGEX, MADE BY ANY USER OR OTHER PARTY THAT ARISES OUT OF, IS RELATED TO, OR IS BASED ON (A) A BREACH OF THIS AGREEMENT BY YOU OR ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES; (B) YOUR NEGLIGENCE OR INTENTIONAL ACT OR OMISSION; (C) YOUR USE OF THE AFFILIATE SOFTWARE, AFFILIATE EQUIPMENT, OR THE AGEX SERVICE, (D) ANY LIVESTOCK CONTENT AND DATA THAT YOU SUBMIT OR UPLOADED; OR (E) PROPERTY DAMAGE (INCLUDING DAMAGE TO AFFILIATE EQUIPMENT), PERSONAL INJURY OR INJURY TO LIVESTOCK CAUSED BY YOU.
17. ARBITRATION AND EQUITABLE RELIEF.
- Disputes. You and AGEX agree that, except as provided below all disputes, controversies, and claims (“Claims”) between you, including but not limited to any Claim related to or arising under this Agreement, the use of the Affiliate Software or the Affiliate Equipment, any User, or Livestock Content and Data, or the nature of the relationship between you and AGEX, will be settled by binding arbitration to be conducted in the English language in accordance with the rules then in effect of the American Arbitration Association, whether such dispute or controversy arose before or after the date you signed this Agreement. The scope of this provision applies to all Claims against AGEX, its successors or assigns, or any of the current or former officers, directors, principals, shareholders, owners, employees, or agents of any of them. Any question regarding the scope or enforceability of the parties’ agreement to arbitrate shall likewise be settled by binding arbitration. The arbitrator may grant injunctions or other relief in such dispute or controversy. T he decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction.
- Individual Basis. You and AGEX agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis and there will be no right or authority for any dispute to be brought, heard, or arbitrated as a class action, collective action, representative action, other multi-party or consolidated action, or any other action on behalf of or together with individuals other than myself (“Class Action Waiver”). If at any point this Class Action Waiver is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
- Demand for Arbitration. All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must deliver a written demand for arbitration within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Service of any demand for arbitration on AGEX shall be provided to its registered agent for service of process. Service of any demand for arbitration on you shall be sent to your home address (or other address provided by you) as reflected in AGEX’s system of record. The arbitrator shall resolve all disputes regarding the timeliness or sufficiency of the demand for arbitration.
- Selection of Arbitrator. AGEX and Affiliate shall select one (1) neutral arbitrator by mutual agreement. If we cannot agree on an arbitrator within 30 days of the written demand for arbitration, the arbitrator shall be selected in accordance with the procedures found in the then current AAA’s Commercial Arbitration Rules and Mediation Procedures. Unless the parties jointly agree otherwise, the Arbitrator shall be either an attorney who is experienced in employment law and licensed to practice law in the state in which the arbitration is convened, or a retired judge (the “Arbitrator“).
- Location of Arbitration. The location of the arbitration proceeding shall be Austin, Texas, unless each party to the arbitration agrees in writing otherwise.
- Costs. AGEX will pay the AAA filing, administrative and arbitrator fees associated with the arbitration, except for the first $300.00 in administrative fees for any arbitration that is initiated by you. Each party will separately pay its counsel fees and expenses unless otherwise required by law.
- Exceptions to Arbitration Provision.
- The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without abridgment of the powers of the arbitrator, provided the remainder of any such dispute shall be subject to arbitration.
- This arbitration provision shall not apply to Claims relating to AGEX’s or your Intellectual Property Rights.
- This arbitration provision shall not apply to Claims that are not subject to pre-dispute agreements to arbitrate.
- This arbitration provision shall not apply to AGEX’s or its designee’s claims against you for any payment(s) due hereunder or under the equipment rental terms referenced in Section 2(g).
- Acknowledgment. YOU HAVE READ AND UNDERSTAND SECTION 17, WHICH DISCUSSES ARBITRATION. YOU UNDERSTAND THAT BY USING THE AFFILIATE SOFTWARE, THE AGEX SERVICE, AND/OR AFFILIATE EQUIPMENT, YOU AGREE TO SUBMIT ANY CLAIMS ARISING OUT OF OR RELATING TO, (A) this Agreement, or the existence, breach, termination, enforcement, interpretation or validity hereof, or (b) your access to or use of AFFILIATE software or AFFILIATE equipment at any time, whether before or after the date you signed this Agreement, TO BINDING ARBITRATION AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF YOUR RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE PARTIES. YOU FURTHER ACKNOWLEDGE THAT, PURSUANT TO THIS PROVISION, YOU ARE PRECLUDED FROM BRINGING ANY CLASS OR COLLECTIVE ACTION AGAINST AGEX.
- Substantive Law in Arbitration Proceeding. The arbitrator shall apply the law of the State of Texas. For the avoidance of doubt, questions regarding the scope, enforceability, or other aspects of this Section 17 shall be subject to the terms of Section 18 below.
- Changes. AGEX may modify, revise, or terminate the terms of this Section 17 by giving you at least 30 days’ advance notice of the modification, revision, or termination. Any such modification, revision, or termination shall not be effective as to claims for which a demand for arbitration is or has been made prior to the effective date of the modification, revision, or termination.
- Jury Waiver. Without limiting the parties’ agreement to arbitrate in any way, AGEX and Affiliate agree to waive a jury trial of any dispute, controversy, or claim between them that is not submitted or compelled to arbitration for any reason whatsoever.
18. Governing Law, Forum, and Venue.
This Agreement will be construed in accordance with and governed by the laws of the State of Texas, without regard to conflicts of laws principles. Without limiting the agreement to arbitrate set forth in Section 17, AGEX and Affiliate agree the exclusive venue for resolving any dispute between them that is not compelled to arbitration for any reason, including but not limited to any dispute arising out of or related to this Agreement, shall be the state courts located in Travis County, Texas, and Affiliate consents to the jurisdiction of state courts located in Travis County, Texas.
19. Export and Other Restrictions.
Affiliate may not use or otherwise export or re-export the Affiliate Software or Affiliate Equipment or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Affiliate Software was accessed or obtained. In particular, but without limitation, neither the Affiliate Software, AGEX Connect, nor the AGEX Platform may be exported or re-exported (a) into any U.S.-embargoed countries; or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List.
This Agreement, and the documents we reference in this Agreement, constitute the entire agreement between AGEX and you regarding the subject matter hereof, including but not limited to the Affiliate Software, the Affiliate Equipment and the Livestock Services and supersedes any prior agreements, whether written or oral, on the subject matter hereof. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. Any amendments to and waivers under this Agreement shall only be valid if in writing and signed by an authorized executive of AGEX and Affiliate, or in the case of Affiliate, accepted via a click-to accept mechanism. You may not transfer, delegate or assign this Agreement or any of its rights or obligations hereunder without AGEX’s prior written consent or as otherwise provided in the Agreement, and any attempt to do so shall be null and void. AGEX may transfer or assign this Agreement.