AGEX User Agreement
Revised December 2017
Background. This User Agreement (“Agreement“) and all policies posted on the AGEX website set out the terms upon which, AGEX, Inc., a Texas corporation (“AGEX“), provides access to and use of AGEX’s proprietary service (including web-based portals, applications, 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, Sellers, and Affiliates (defined below) who use the AGEX Service (together, “Users“). To be clear, the AGEX Service itself does not include the provision or acquisition of the Livestock – AGEX is a technology and marketplace provider, not a Buyer or Seller of Livestock. The actual contract for sale of Livestock is directly between the Buyer and Seller.
Acceptance. This Agreement sets forth the legally binding terms for your use of the AGEX Service, whether as a Seller or a Buyer, as the case may be. The “SELLERS” section below applies to you only insofar as you want to use the AGEX Service as a Seller. The “BUYERS” section applies only insofar as you use the AGEX Service as a Buyer. And the “ALL USERS” section applies to all Users.
By clicking the “I AGREE” button or using the AGEX Service, you (“you“) agree, effective as of such date (the “Effective Date“), to be bound by this Agreement.
You are only authorized to use the AGEX Service 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 AGEX Service 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.
TERMS APPLICABLE ONLY TO SELLERS
- Conditions of Seller Eligibility. In order to qualify as a Seller, you must (i) be at least 18 years of age, and (ii) have any license required by your applicable jurisdiction. If AGEX has previously removed you as a Seller or terminated your account, you are not eligible to become a Seller via this Agreement.
- Seller Promises. As a Seller, you agree that:
- you will comply with this Agreement and all applicable law at all times;
- you are solely responsible for ensuring that you meet requirements imposed by any Buyer with which you transact business via the AGEX Service;
- you will not provide or post any false, inaccurate, incomplete, misleading, or deceptive information about any Livestock listed by you, or for you, for auction via the AGEX Service; and
- you will meet AGEX’s minimum performance standards as published from time to time.
- Seller Acknowledgements. Seller acknowledges and agrees that nothing in this Agreement, and no transaction conducted through the AGEX Service, shall in any way be construed to establish Seller as an agent, employee or representative of AGEX. AGEX merely provides a technology-enabled service to Seller. Seller agrees to furnish all tools and materials necessary to undertake its obligations and responsibilities, and incur all expenses associated with Seller’s auction or sale of Livestock. It is the sole responsibility of Seller to ascertain its appropriate and desired level of insurance. Seller acknowledges that AGEX is not responsible for and shall not be liable for actions taken or promises made by Buyers or Affiliates (defined below), and that it is Seller’s sole responsibility to contract with and pay for any Additional Affiliate Services (defined below), and to comply with all applicable law in doing the same. Seller accepts all risks related to interacting with and transacting with Buyers and Affiliates. AFFILIATES ARE AGEX’S INDEPENDENT CONTRACTORS, NOT AGENTS OR EMPLOYEES OF AGEX. AGEX DOES NOT SUPERVISE AFFILIATES. AGEX IS NOT LIABLE FOR ANY ACTS OR OMISSIONS OF AFFILIATES, EVEN IF THE AFFILIATES ARE PROVIDING SERVICES TO AGEX. Seller represents and warrants to AGEX, Buyer, and Affiliate(s) that Seller has good and legal title to the Livestock, free and clear of all liens, or, alternatively, is acting as the legal owner’s rightful agent and has full right, power, and authority to enter into this Agreement and to sell and convey Livestock listed on the AGEX Service free and clear of all liens. Seller enters into a legally binding contract to sell Livestock when you commit to sell the Livestock, Seller accepts an offer or bid, or if an offer or bid exceeds any reserve or minimum price amount. Seller acknowledges and agrees that although Affiliate(s) or AGEX may provide advice or assistance in pricing Livestock, Seller alone is ultimately responsible for establishing all pricing applicable to any given auction or sale.
- Livestock Data and Content Collection; Ownership. “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 Seller’s Livestock, including all intellectual property rights therein, that is inputted or uploaded into the AGEX Services or otherwise submitted by or obtained from you or Affiliates providing services to you and/or AGEX (each an “Affiliate“). For the purposes of this Agreement, “Affiliates” denotes independent professionals, and does not include AGEX’s wholly owned subsidiary, AGEX Trade, LLC (“AGEX Trade“), which is AGEX’s designee for making and receiving certain payments. You hereby assign to AGEX all right, title and interest in and to all Livestock Content and Data. You represent and warrant that you have the right to submit, input or upload the Livestock Content and Data without infringement on any third-party rights and that all Livestock Content and Data is true and correct. You hereby agree to permit AGEX and/or Affiliate(s) to: (a) photograph and take video of Livestock at your site or the site at which your Livestock is located; (b) tag your Livestock with an AGEX ear tag, which ear tag may be enabled with technology such as RFID; (c) run your Livestock through the AGEX Smart Chute; (d) weigh your Livestock; (e) upload Livestock Content and Data to the AGEX Services; and (f) take any action necessary or desirable to accomplish any of the foregoing. AGEX hereby grants to you a non-exclusive license to internally use and reproduce the Livestock Content and Data that you export from the AGEX Service during the term of this Agreement.
- Taxes and Fees. Seller acknowledges and agrees that Seller is obligated to report as income all compensation received by Seller pursuant to transactions conducted through the AGEX Service, and is solely responsible for paying all taxes thereon. Seller further acknowledges that states, cities, agencies or other applicable jurisdictions may impose taxes, fees or surcharges related to Seller’s transactions with Buyers. Because AGEX merely provides a service to facilitate transactions between Sellers and Buyers, and is not a party to your agreement or transaction with the Buyer, Seller is solely responsible for determining whether any such tax, fee or charge is applicable, calculating the same and remitting it to the applicable authority, and adjusting the amounts that you impose upon Buyers accordingly, to the extent you want the Buyers to bear or share the burden of any such amount. Seller agrees to indemnify AGEX and hold AGEX harmless from any claim relating to any such tax or charge. AGEX does not offer tax related advice; for questions about your tax liability, you must contact your own attorney, accountant or tax advisor.
- Establishment of Account; Auction Fee. In order to become a Seller, you must also configure a valid and verifiable bank account with your AGEX account, in order to receive the funds (net of the Auction Fee defined below (and, if applicable, any fees for Third Party Services) that AGEX (or its third party designee, which may include AGEX Trade) processes for you following the close of a successful sale of Livestock using the AGEX Service; which payment processing may occur via electronic transfer to such bank account or by written check. In consideration for your access to and use of the AGEX Service as a Seller, you agree to pay AGEX or its designee (and hereby authorize AGEX or its designee to deduct) an auction fee equal to the Applicable Auction Fee Percentage times the gross sales price of any Livestock sold through the AGEX Service (“Auction Fee“). The “Applicable Auction Fee Percentage” is set forth in the AGEX FEE SCHEDULE. AGEX reserves the right to change the Applicable Auction Fee Percentage at any time by providing notice to you of such change.
TERMS APPLICABLE ONLY TO BUYERS
- Buyer Eligibility. In order to qualify as a Buyer, you must be at least 18 years of age. If AGEX has previously removed you as a Buyer or terminated your account, you are not eligible to use the AGEX Service to make purchases from a Seller.
- Buyer Promises. As a Buyer, you agree that you will:
- comply with this Agreement and all applicable law at all times;
- as a condition to bidding on Livestock via the AGEX Service, establish a payment method that is acceptable to AGEX (“Payment Method“);
- pay for the Livestock that you purchase via the AGEX Services, strictly comply with all Livestock delivery or pick up or collection requirements described in this Agreement and the terms of the specific sale, and pay for any and all additional fees, penalties and interest that you may be subject to for failure to timely pay for and/or pick up Livestock in accordance with the terms of this Agreement and the terms of the specific sale; and
- be responsible for reading and understanding this Agreement and the full listing for any specific sale before making a bid or an offer to buy any Livestock.
- Buyer Acknowledgements. Buyer acknowledges and agrees that: (a) each Seller is, vis-à-vis AGEX, an independent party, and that AGEX has no responsibility and makes no (and hereby expressly disclaims any) guarantees or warranties of any kind, express or implied, regarding Sellers, Livestock or any Livestock Content and Data (including, without limitation, animal weights); (b) all Livestock Content and Data is provided for informational purposes only; (c) Buyer enters into a legally binding contract to purchase Livestock when you commit to buy the Livestock, your offer is accepted or if you have the winning bid; and (d) AGEX does not transfer legal ownership of Livestock from the Seller to the Buyer. Sellers are solely responsible for all aspects of any Livestock listed or auctioned using the AGEX Service, including, without limitation, the accuracy and completeness of all Livestock Content and Data. Buyer further acknowledges that AGEX or its designee, which may include AGEX Trade, retains a portion of the payments made for such Livestock, but solely as an Auction Fee for facilitating the transactions and payments envisioned hereby, and not as payment for Livestock. AGEX does not guarantee that any Seller will fulfill any Livestock ordered via the AGEX Service. Buyer accepts all risks related to interacting with and transacting with Sellers. Buyer is solely responsible for ensuring that Buyer meets requirements imposed by any Seller with which it transacts business via the AGEX Service.
- Yardage Fees. Buyer acknowledges and agrees that Seller may incur costs for delays in picking up Livestock. Unless otherwise agreed in writing by a Seller (or otherwise specified in the auction or sale terms), Buyer shall pay yardage fees in the amount of no less than $1.50 per head per day for any Livestock not picked up within 24 hours after the specified delivery/pick-up date.
- Payment. Buyer hereby authorizes AGEX or its designee to charge its Payment Method on file with the sale price associated with each order that it places via the AGEX Service. Buyer’s obligation to pay for Livestock is subject to all applicable law (including, without limitation, the Texas Uniform Commercial Code (or any analogous or applicable law of any other state) and the Packers and Stockyard Act of 1921, each as amended and may be amended in the future from time to time). AGEX or its designee, in their respective sole and absolute discretion, may extend credit or financing terms to Buyer, which terms, if any, must be agreed to in writing by AGEX or the designee.
- Late Payment. If Buyer does not pay an invoiced amount within 72 hours of the closing of a sale (or other terms provided to Buyer by AGEX or its designee in writing), then, in addition to any remedy available under law or equity, (i) Buyer will pay AGEX or its designee a late fee of 1.5% of the amount due, in addition to finance charges of 1.5% percent per month on the late balance (which interest shall accrue and be charged daily), and (ii) Buyer shall reimburse AGEX or its designee for the reasonable costs, including attorneys fees, of collecting such amounts from Buyer. Further, AGEX and its designee reserve the right to revoke any credit extended to Buyer by AGEX or its designee. Finally, Buyer acknowledges and agrees that until payment of all applicable amounts due is made in full, Buyer holds applicable Livestock in trust for the benefit of AGEX. The remedies set forth in this Section are in addition to any remedy available to AGEX under law or equity.
- Taxes and Fees. Buyer acknowledges and agrees that as between AGEX and Buyer, Buyer shall be responsible for bearing the cost of any sales or comparable taxes associated with purchases it makes from a Seller via the AGEX Service. Buyer further acknowledges that states, cities, agencies or other applicable jurisdictions may impose taxes, fees or surcharges related to Buyers purchases. Because AGEX merely provides a service to facilitate transactions between Sellers and Buyers, and is not a party to your agreement or transaction with the Seller, Buyer is solely responsible for determining whether any such tax, fee or charge is applicable to Buyer, calculating the same and remitting it to the applicable authority.
TERMS APPLICABLE ONLY TO ALL USERS
- User Promises. In connection with using or accessing the AGEX Services, you will not
- manipulate the price of any Livestock or interfere with any other User’s listings;
- take any action that may undermine feedback or ratings systems that AGEX may implement from time to time;
- transfer your AGEX account or User ID to another party without AGEX’s consent;
- post or distribute spam or unsolicited or bulk electronic communications;
- distribute viruses or other technologies that may harm AGEX or the interests or property of Users;
- use any robot, spider, scraper, data mining or extraction tools, or other automated means to access the AGEX Services for any purpose;
- interfere with the working of the AGEX Services or impose an unreasonable or disproportionately large load on the AGEX infrastructure;
- export or re-export any AGEX application, software or tool;
- infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights“) that belong to or are licensed to AGEX. Some, but not all, actions that may constitute infringement are reproducing, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to AGEX or someone else;
- infringe any Intellectual Property Rights of any third party or post any content that does not belong to you;
- commercialize any AGEX application or any information or software associated with such application, except with the prior express permission of AGEX;
- harvest or otherwise collect information about Users without their consent; or
- circumvent any technical measures AGEX uses to provide the AGEX Services.Without limiting other remedies, AGEX may suspend, restrict, limit or terminate your User account or access to the AGEX Services if AGEX believes you are abusing AGEX in any way or fail to comply with this Agreement or any AGEX policies referenced herein.
- Terms of Purchase and Sale of Livestock. The standard terms and conditions of sale of Livestock on the AGEX Service (“Standard Terms“) are described below; provided, however, that (i) conflicting terms in Seller’s listing or the auction listing terms (“Listing Terms“) shall prevail in the event of any conflict unless otherwise agreed in writing, and (ii) the AGEX Service may allow Buyers and Sellers to establish certain additional or differing terms and conditions for the purchase and sale of Livestock, e.g. price (and price adjustment mechanisms, for future delivery contracts), payment terms and delivery dates. All such terms and conditions, as supplemented by applicable law (including, without limitation, the Texas Uniform Commercial Code (or any analogous or applicable law of any other state) and the Packers and Stockyard Act of 1921, each as amended and may be amended in the future from time to time), shall comprise the terms of purchase and sale of Livestock for any transaction facilitated via the AGEX Service as between Buyer and Seller.
The following are the “Standard Terms“:
- Unless otherwise provided, bid or offer amounts include all taxes.
- Unless otherwise provided, shipping is not included, all Livestock will be delivered FOB Seller’s location, and Buyer shall be responsible for transport at Buyer’s sole expense.
- Seller represents and warrants that all Livestock are to be in sound and merchantable condition and free of any contagious disease, and acknowledges that Livestock that is blind, crippled, locoed, lump-jawed, or otherwise deformed and not merchantable may be rejected by Buyer.
- Seller represents and warrants that Seller has good and legal title to the Livestock, or, alternatively, is acting as the legal owner’s rightful agent and has full right, power, and authority to enter into the contract for sale and to sell and convey the Livestock free and clear of all liens.
- Unless otherwise provided, risk of injury to, damage to, and loss of Livestock shall transfer with legal title to the Livestock, and Seller shall exercise due care with respect to Livestock in Seller’s possession that are legally owned by Buyer.
- AGEX does not guarantee the Livestock or any other aspect of any agreement between Buyer and Seller, including as may be provided in the Standard Terms of any Listing Terms (collectively, the “Sales Contract“). Buyer and Seller agree to look solely to each other for any claim, damage or liability associated in any way with the Sales Contract and expressly waive and release AGEX with respect to the same. Buyer and Seller agree to indemnify, defend and hold harmless AGEX, Inc. for any such claims that arise from or are in any way related to the Sales Contract.
- Non-contravention. Each User agrees that it will not circumvent the AGEX Service for the purpose of avoiding the Auction Fees imposed by AGEX. AGEX or its designee will be entitled to receive, and each User agrees to pay, any Auction Fees arising out of all sales made using some or all of AGEX Services, even if sales terms are finalized or payment is made outside of AGEX.
- Disputes Among Users and Release of AGEX. The AGEX Service is designed to create a marketplace for Livestock and to facilitate transactions among Sellers and Buyers. Neither AGEX nor any Affiliate provides Livestock, nor does either guarantee any Livestock ordered via the AGEX Service. EACH USER IS SOLELY RESPONSIBLE FOR ITS INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE AGEX SERVICE, AGREES TO LOOK SOLELY TO SUCH OTHER USERS FOR ANY CLAIM, DAMAGE OR LIABILITY ASSOCIATED WITH ANY TRANSACTION ENTERED INTO VIA THE AGEX SERVICE AND ANY LIVESTOCK, AND EXPRESSLY WAIVES AND RELEASES AGEX AND ANY AFFILIATE FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY SUCH USER, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY. AGEX reserves the right, but has no obligation, to monitor disputes between Users.
- Representations About You, Generally. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo (or that has been designated by the U.S. Government as a “terrorist supporting” country), and you are not listed on any U.S. Government list of prohibited or restricted parties. You represent and warrant that you have the full power and authority to enter into this Agreement.
- Representations About Your Information and Consent Regarding Use of Your Information. You represent and warrant that all information that you provide in connection with the AGEX Service, including, without limitation, Livestock Content and Data, will be current, true, accurate, supportable and complete. If you submit comments, suggestions, ratings, or other feedback regarding the Application, the AGEX Service, Sellers, Buyers, Affiliates, or your experience (“Feedback“), you agree that AGEX will be free to use such Feedback for any purpose and without restriction or obligation to you.
- Consent to Receive Communications. YOU CONSENT TO RECEIVE MESSAGES (WHETHER BY PHONE, EMAIL, TEXT MESSAGES OR PUSH NOTIFICATIONS) FROM AGEX, AFFILIATES, USERS AND/OR AGEX’S 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. AGEX will allow you to opt out of receiving some of these messages, but to stop receiving any messages from AGEX whatsoever (including administrative messages regarding the AGEX Service), 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 Affiliate or User that you believe could violate the terms of this Agreement, you agree to promptly notify AGEX at email@example.com.
- License Terms. The AGEX Service is licensed, not sold, to you. AGEX also 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 a Buyer, Seller, or 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. AGEX reserves all rights in and to the AGEX Service not expressly granted to you under this Agreement. This license granted to you is limited to a nontransferable license to use the AGEX Service for your own internal business purposes.
- Reservation of Rights; Confidentiality. AGEX reserves all rights, title and interest in and to the AGEX Service and any AGEX equipment and all AGEX Intellectual Property Rights not expressly granted under this Agreement. You acknowledge that the AGEX Service, all AGEX Intellectual Property Rights, and any other proprietary or confidential information provided by AGEX constitutes AGEX’s valuable proprietary information and trade secrets (“AGEX Confidential Information“). During the term of this Agreement and thereafter, you agree to preserve the confidential nature of AGEX’s Confidential Information by retaining and using it in trust and confidence, solely for its 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. 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.
- Restrictions on Use of the AGEX Service. You may not rent, lease, lend, sell, redistribute, or sublicense the AGEX Service or any AGEX Confidential Information. You are solely responsible for actions taken via your account. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the AGEX Service, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the AGEX Service). Any attempt to do so is a violation of the rights of AGEX and its licensors. You may not use the AGEX Service for any use other than its intended use.
- Third-Party Services and Materials. Aside from connecting you with other Users, the AGEX Service may enable access to third-party services (collectively and individually, “Third-Party Services“). Use of Third-Party Services may require your acceptance of additional terms of service. You agree to comply with any such terms. Further, information you make available to Third Party Services is subject to the privacy policies of such third parties. You agree that you will use the Third-Party Services at your sole risk.The AGEX Service and/or Third-Party Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials“), or provide links to third-party websites. You acknowledge and agree that AGEX is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. AGEX does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Services, Third-Party Materials or websites.
- Your Data. You will retain ownership in and to any personal data, including personally identifiable information, that you post to the AGEX Service (collectively, “Your Data“). After posting Your Data to the AGEX Service, you continue to retain all ownership rights in the same, subject to any licenses granted by you. By posting any of Your Data on or through the AGEX Service, you hereby grant to AGEX a non-exclusive, fully-paid, royalty-free, sublicensable, transferable, irrevocable, worldwide license to in order to provide the applicable elements of the AGEX Service (and any applicable Third-Party Services) to you and as necessary to monitor and improve the AGEX Service. Additionally, you grant and agree to grant to AGEX a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use Your Data to aggregate, collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze Your Data (“Blind Data“). Notwithstanding anything in this Agreement to the contrary, to the extent that AGEX collects or generates Blind Data, such Blind Data will be owned solely by AGEX and may be used for any lawful business purpose without a duty of accounting or obligation, provided that such data is not personally identifiable and does not identify the source of such data. It is your sole responsibility to back-up any of Your Data that may be stored on the AGEX Service (and any Livestock Content and Data, if applicable) and you agree and acknowledge that post termination or expiration of this Agreement, you may not have access to such data.
- Third Party Content. The AGEX Service may also contain content of AGEX’S licensors or providers of Third Party Services, including other Users (“Third Party Content“). Third Party Content is protected by copyright and other laws, and AGEX’S licensors and providers of Third Party Services own and retain all rights in Third Party Content. Neither AGEX nor AGEX’S licensors or providers of Third Party Services grant you any other licenses, express or implied, to the intellectual property of AGEX, licensors, or providers of Third Party Services, including to Third Party Content, and you may not otherwise copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Third Party Content.
- Privacy of User Information. You agree that you owe AGEX and Users, during the term of this Agreement and thereafter, a duty to hold all User information (including personally identifiable information) in the strictest confidence and not to disclose it publicly nor to any person or entity or to use it except as necessary to complete transactions using the AGEX Service consistent with this Agreement.
- Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights.
- Limitations on Availability. The AGEX Service is not available at all times, in all languages or in all geographies. AGEX makes no representation that the AGEX Service will achieve any particular uptime, or that the AGEX Service is appropriate or available for use in any particular location or at any particular time. Use of the AGEX Service is void where prohibited.
- Termination. This Agreement is effective until terminated by you or AGEX. Your rights hereunder will terminate automatically without notice from AGEX if you fail to comply with any term(s) of this Agreement. Upon termination, you shall cease all use of the AGEX Service. You acknowledge that AGEX may refuse to enroll you in the AGEX Service, and may restrict, modify, or terminate your account, without liability, for its convenience, or if you violate this Agreement or any law, rule, or regulation. In no event will AGEX be liable for the removal or disabling of access to the AGEX Service. AGEX may also impose limits on the use or access to the AGEX Service, in any case and without notice or liability.
- Indemnity. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS AGEX AND ITS 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, Affiliate, OR OTHER PARTY THAT ARISES OUT OF, IS RELATED TO, OR IS BASED ON (A) A BREACH OF THIS AGREEMENT AND/OR ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES; (B) YOUR NEGLIGENCE OR WILFUL MISCONDUCT; (C) YOUR USE OF THE AGEX SERVICE; (D) ANY LIVESTOCK CONTENT AND DATA THAT YOU SUBMIT OR UPLOAD; (E) ANY CLAIM MADE BY AN Affiliate, OTHER AGEX USER, OR OTHER THIRD PARTY, INCLUDING WITH RESPECT YOUR ACTS OR OMISSIONS; OR (F) PROPERTY DAMAGE (INCLUDING DAMAGE TO AGEX EQUIPMENT), PERSONAL INJURY OR INJURY TO LIVESTOCK CAUSED BY YOU, YOUR EMPLOYEES OR CONTRACTORS. YOU EXPRESSLY ACKNOWLEDGE THAT THERE ARE INHERENT RISKS ASSOCIATED WITH LIVESTOCK HANDLING, INCLUDING SERIOUS INJURY, DEATH, INJURY TO LIVESTOCK, AND EQUIPMENT DAMAGE.
- Disclaimer of Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE AGEX SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGEX SERVICE, INCLUDING WITHOUT LIMITATION ANY PRICING ADVICE OR ASSISTANCE PROVIDED TO A SELLER OR BUYER, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. AGEX HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE AGEX SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. AGEX DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE AGEX SERVICE, THAT THE FUNCTIONS CONTAINED THEREIN OR THE TRANSACTIONS YOU UNDERTAKE THROUGH THE SAME WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE AGEX SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AGEX OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE AGEX SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION TO THE EXTENT THE SAME IS WITHIN YOUR CONTROL. 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 TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL AGEX OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR (I) PERSONAL INJURY, PROPERTY DAMAGE OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE AGEX SERVICE OR ANY AGEX 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, OR (II) ANY DAMAGES WHATSOEVER ARISING OUT OF TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES THROUGH THE AGEX SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL AGEX’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY AGEX) EXCEED THE TOTAL AMOUNT THAT AGEX HAS BEEN PERMITTED TO RETAIN AS A RESULT OF TRANSACTIONS BETWEEN YOU AND OTHER USERS PROCESSED THROUGH THE AGEX SERVICE IN THE THREE (3) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Compliance with Law, Export and Other Restrictions. To the extent you choose to use the AGEX Service, you agree to comply with all applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or re-export the AGEX Service except as authorized by United States law and the laws of the jurisdiction in which the AGEX Service was accessed.The AGEX Service and related documentation are “Commercial Items” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
- Modifications. AGEX may modify the terms of this Agreement from time to time. Any modification shall be effective when AGEX notifies you of the modification (via an update delivered through the AGEX Service or via email or other notification) and you subsequently use the AGEX Service.
- Arbitration and equitable relief.
- Disputes. You and AGEX agree that, except as provided below, all disputes, controversies, and claims (“Claims“), including but not limited to any Claim related to or arising under this Agreement, the use of the AGEX Service, 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. The 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 yourself (“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 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 User 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 with relevant experience 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 in 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 due pursuant to the terms of any specific sale.
- Acknowledgment. YOU HAVE READ AND UNDERSTAND SECTION 3(w), WHICH DISCUSSES ARBITRATION. YOU UNDERSTAND THAT BY USING THE AGEX SERVICE, 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 the AGEX SERVICE 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 3(w) shall be subject to the terms of Section 3(x) below.
- Changes. AGEX may modify, revise, or terminate the terms of this Section 3(w) 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 User 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.
- Miscellaneous. 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 3(w), you agree the exclusive venue for resolving any dispute between yourself and AGEX that is not subject to arbitration or is not compelled to arbitration for any reason, shall be the state courts located in Travis County, Texas, and you consent to the jurisdiction of state courts located in Travis County, Texas. The laws of the State of Texas, excluding its conflicts of law rules, govern this Agreement and your use of the AGEX Service. Your use thereof may also be subject to other local, state, national, or international laws. This Agreement constitutes the entire agreement between you and AGEX regarding the AGEX Service. Any amendments to and waivers under this Agreement shall only be valid if in writing and signed by an authorized executive of AGEX and User, or in the case of User, accepted via a click-to accept mechanism, or as otherwise provided in Section 3(g) above. The failure of AGEX to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. “AGEX” and all associated logos displayed within the AGEX Service are trademarks of AGEX or its licensors. This Agreement operates to the fullest extent permissible by law. AGEX may freely transfer or assign this Agreement and any of its rights or obligations hereunder. You may not transfer or assign this Agreement or any of your rights or obligations hereunder without the prior written consent of AGEX, and any attempt to do so shall be null and void. AGEX may transfer or assign this Agreement. 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. For the purposes of Section 3(w) and 3(x), the term “AGEX” includes all subsidiaries and affiliated entities of AGEX, including, without limitation, AGEX Trade.
- Supplemental Terms. AGEX may offer additional services from time to time in the future, for example AGEX and/or AGEX Trade may offer loans to prospective Sellers secured by executed purchase and sale contracts, the proceeds described therein, and/or Sellers’ Livestock. To enjoy certain aspects of these AGEX Services, additional terms may apply. AGEX will present supplemental terms and conditions for review and acceptance at the time that you undertake such activity within the AGEX Service, and any such supplemental terms (each, “Supplemental Terms“) shall become a part of this Agreement. In the event of any conflict between the terms hereof and any Supplemental Terms, the Supplemental Terms shall govern with respect to the matters contemplated thereby.
- Additional Affiliate Services.Sellers or Buyers may contract with Affiliate(s) for the provision of additional services or work on the part of such Affiliate(s) (collectively, “Additional Affiliate Services“). Such Additional Affiliate 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. Users acknowledges that AGEX is not responsible for and shall not be liable for actions taken or promises made by Affiliates, and that it is User’s sole responsibility to contract with and pay for any Additional Affiliate Services, and to comply with all applicable law in doing the same. Users accept all risks related to interacting with and transacting with Affiliates. Affiliates retain total and complete discretion as to when they do and do not provide Additional Affiliate Services. AFFILIATES ARE AGEX’S INDEPENDENT CONTRACTORS, NOT AGENTS OR EMPLOYEES OF AGEX. AGEX DOES NOT SUPERVISE AFFILIATES. AGEX IS NOT LIABILE FOR ANY ACTS OR OMISSIONS OF AFFILIATES, EVEN IF THE AFFILIATES ARE PROVIDING SERVICES TO AGEX.