Background. AGEX, Inc., a Texas corporation, and its subsidiaries and affiliates and their respective representatives, affiliates, officers, employees, agents and directors (collectively, "AGEX") offer a proprietary service (including web-based portals and related software, applications, tools and services, collectively, the “AGEX Service”) designed to: (a) help individuals administering cattle operations (“Administrators”) collect and manage essential information about their cattle (cattle being referred to as “Livestock” hereinafter), (b) connect buyers of Livestock who use the AGEX Service (“Buyers”) and sellers of Livestock who use the AGEX Service (“Sellers”); (c) facilitate financing for purchases of Livestock for certain Buyers (Buyers using such financing being “Borrowers”) from Agex Trade, LLC, a Texas limited liability company (“Lender”); and (d) facilitate transactions among Buyers, Sellers, Borrowers, Service Providers (defined below), and Lender (each non-AGEX party who uses or attempts to use the AGEX Service individually a “User” and collectively “Users”). To be clear, the AGEX Service does not include the provision or acquisition of the Livestock – AGEX is a technology and marketplace provider, not a Buyer or Seller of Livestock. Any contract for sale of Livestock is directly between the relevant Buyer and Seller, and any contract for financing is directly between Borrower and Lender (and not any other person or entity included in the definition of AGEX above).
Contractual Relationship. These Terms of Use (“Terms”) and all policies posted on the AGEX website at https://www.agex.io/ (each individually a “Policy” and, with the Terms, collectively, the “Policies”) govern your access to or use of the AGEX Service as a User. PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND YOUR AGEX COUNTERPARTY. Sections 1 and 2 below each only apply to you insofar as you use or intend or attempt to use the AGEX Service as or on behalf of a Seller or Buyer, respectively. Acceptance. By clicking the “I AGREE” button or accessing, using, or attempting to access or use any portion of the AGEX Service, you (i) confirm your agreement to be bound by the Policies and (ii) represent and warrant that: (1) you have the legal power and authority to agree to, and be bound by, these Terms of Use and (2) if you provide or have provided information to AGEX in connection with an application to access or use any portion of the AGEX Service, such information is true and accurate. If you do not agree to be so bound, you may not use the AGEX Service and should discontinue any use of or attempt to access the AGEX Service immediately.
AGEX does not warrant the accuracy, completeness, timeliness or usefulness of the content, services or other information provided through the AGEX Service, by any User or provider of Third-Party Services or on the internet generally. AGEX does not have any control over or accept any responsibility for your compliance with the laws applicable to your country, state, county, or city of residence. AGEX may immediately terminate these Terms of Use or any AGEX Service with respect to you, or generally cease offering or deny access to the AGEX Service or any portion thereof, at any time for any reason or no reason at all. 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 ACCEPTING THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS CONTAINED HEREIN AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. AGEX may make changes to all or any of the Policies from time to time. If AGEX makes material changes, it will provide you with notice of such changes by sending an email, providing a notice through the AGEX Service, by updating the date at the top of the relevant changed Policy or by such other method as AGEX may determine in its discretion. Unless AGEX states otherwise in a notice, a changed Policy will be effective immediately and your continued access to and use of any portion of the AGEX Service after such notice will confirm your acceptance of the changes. If you do not agree to the changed Policy, you must stop accessing, using, or attempting to access or use the Services.
1. TERMS APPLICABLE ONLY TO sellers
As a Seller:
a. Commitment to Sell. You agree that you enter into a legally binding contract to sell Listed Livestock (defined below) when you commit to sell the Listed Livestock, accept an offer or bid, or if an offer or bid exceeds any reserve or minimum price amount set by you or on your behalf.
b. Taxes and Fees. You acknowledge and agree that you are obligated to report as income all compensation received by you pursuant to transactions conducted through the AGEX Service, and you are solely responsible for paying all taxes thereon. You further acknowledge that federal, state, city, municipal, or other government bodies or agencies or other entities with jurisdiction over your Livestock or operations may impose taxes, fees or surcharges related to your transactions with Buyers and that AGEX may disclose information about all transactions you enter into via the AGEX Service to any taxing authority claiming jurisdiction. Because AGEX only provides a service which facilitates transactions between Sellers and Buyers and is not a party to any agreement or transaction between any Seller and any Buyer, you are solely responsible for determining whether any such tax, fee or charge is applicable, for calculating the same and remitting it to the applicable authority or authorities, and for adjusting the amounts charged to any Buyer accordingly, to the extent that you intend for any Buyer to bear or share the burden of any such amount. You agree to indemnify and hold harmless AGEX from and against any claim relating to any such tax or charge. AGEX does not offer tax related advice to Users; for questions about your tax liability, you must contact your own attorney, accountant or tax advisor.
c. Indemnification for Liens on Listed Livestock. If, as a result of the actions of Seller, a party represented by Seller, or an affiliate, representative, officer, director, or employee of Seller or such represented party, any Livestock listed for sale or auction or otherwise made available for sale or auction on or through the AGEX Service by or on behalf of Seller (“Listed Livestock”) is or becomes subject to any liens or claims which prevent a Buyer from taking possession of or in any way interfere with Buyer’s or any secured party’s title to Livestock purchased from you via the AGEX Service, you agree, to the fullest extent permitted by law, to indemnify and hold harmless, such Buyer, AGEX, Lender, and any affiliates of the Buyer, AGEX, or Lender against all costs and expenses (including attorneys’ fees) incurred as a result of such liens or claims.
d. Agisters’ and Feed Liens; Yardage Fees. Without in any way limiting the impact of Section 1(b) above, where any amounts due to agisters or other service providers with respect to the care of Livestock may accrue before the time that a Buyer of any Listed Livestock is scheduled to take possession of such Listed Livestock pursuant to the relevant Sales Contract (defined below), you agree to pay all such amounts promptly and in full and to take all steps necessary to ensure that agisters’ liens and similar claims resulting from nonpayment will not prevent a Buyer from timely taking possession of Listed Livestock pursuant to a Sales Contract. Where nonpayment of such amounts or the attachment of any agisters’ lien, feed lien, or other claim prevents the Buyer from obtaining possession of Listed Livestock purchased by such Buyer on the schedule or at the time and place set forth in the Sales Contract, you agree to pay all fees and expenses necessary to enable the Buyer to take possession of such Listed Livestock and to reimburse the Buyer promptly and in full for all expenses incurred by the Buyer (including attorneys’ fees) as a result. You further agree that the Buyer may, but shall not be obligated to, remit payment with respect to any such agisters’ liens, feed liens, yardage fees, or similar in order to obtain possession of the purchased Livestock, and you shall promptly reimburse the Buyer for the reasonable costs and expenses so incurred along with interest on such amounts, which shall accrue at the maximum rate permitted by law.
e. Establishment of Account; Auction Fee. You acknowledge that in addition to the requirements for the establishment and maintenance of an account on the AGEX Service, in order to become a Seller, you must also provide 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 or other amounts due hereunder) that AGEX or its designee processes on your behalf 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 here.AGEX reserves the right to change the Applicable Auction Fee Percentage at any time by providing notice to you of such change.
f. Inventory Accounting. You represent and warrant that all Listed Livestock is accounted for by you as “inventory” at the time the Livestock becomes Listed Livestock and thereafter through the conclusion of a sale and that no party holding title or any claim to Listed Livestock is engaged in a farming operation with respect to the same.
g. Authorized Representatives. You acknowledge and agree that Livestock may be listed for sale or auction or otherwise made available for sale or auction on or through the AGEX Service on your behalf by certain third parties, with your express consent, and that these third parties may include Buyers.
2. TERMS APPLICABLE ONLY TO BUYERS
As a buyer:
a. Commitment to Buy. You agree that you enter into a legally binding contract to purchase Livestock when you commit to buy the Livestock, make an offer which is accepted by a Seller, or if you have the winning bid in an auction.
b. Buyer Promises. You agree that you will:
promptly pay in full for the Livestock purchased by you or on your behalf via the AGEX Service, strictly comply with all Livestock delivery or pick up or collection requirements described herein and in the terms of the specific sale, and promptly pay 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 hereof and the terms of the specific sale,
be responsible for reading and understanding the Policies and the full listing and conditions for any specific sale before making a bid or an offer to buy any Livestock, and
when authorized by a Seller to populate information about the Seller’s Livestock (“Seller’s Livestock”) on the AGEX Service, do so in good faith and to the best of your knowledge and without guessing or populating fields about which you do not have actual knowledge and waive any claims against AGEX or such Seller which relate to incorrect information inputted by you or your representatives or assigns with respect to Seller’s Livestock, with such waiver of claims against the Seller excluding claims made relating to information populated in reliance on information provided by such Seller or an agent or representative of such Seller.
c. Yardage Fees.You acknowledge and agree that a Seller may incur costs for delays in picking up Livestock purchased by you or on your behalf via the AGEX Service. Unless otherwise agreed in writing by a Seller (or otherwise specified in the auction or sale terms), you will pay yardage fees in the amount of no less than $1.50 per head per day for any Livestock not picked up by you or your agent within 24 hours after the delivery/pick-up date specified in the relevant Sales Contract (defined below).
d. Payment. You hereby authorize AGEX or its designee to charge your Payment Method (defined below) for the sale price associated with each order placed or purchase made by you or on your behalf via the AGEX Service. Your 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 as may be amended in the future from time to time). You agree that you will not take possession of any Livestock purchased via the AGEX Service until you receive confirmation from AGEX that funds have been transferred and the relevant deal is closed.
e. Late Payment. If you do not pay an amount invoiced to you within 72 hours of the closing of a sale (or on such other terms provided to you by AGEX or its designee in writing), then, in addition to any remedy available under law or equity, you agree that (i) you will pay AGEX or its designee a late fee of 1.5% of the total amount due, in addition to finance charges of 1.5% percent per month or the maximum rate permitted by law, whichever is lower, on the late balance (on which interest shall accrue and be charged daily), and (ii) you shall promptly reimburse AGEX or its designee for the reasonable costs, including attorneys’ fees, of collecting such amounts from you. Further, you acknowledge that AGEX, Lender, and any designee of either reserve the right to revoke any credit extended to you. Finally, you acknowledge and agree that until payment of all applicable amounts due from you to any Seller or Lender is made in full, you hold the relevant Livestock in trust for the benefit of AGEX, Lender, and any designee of either. You acknowledge and agree that the remedies set forth in this Section are in addition to any remedy available to AGEX, Lender, and any designee under law or equity.
f. No Guarantees. You acknowledge and agree that AGEX does not guarantee that any Seller will deliver any Livestock ordered or purchased via the AGEX Service and accept all risks related to interacting with and transacting with Sellers. YOU ALSO ACKNOWLEDGE THAT, FOR ANY TRANSACTION SUBMITTED USING THE AGEX SERVICE, THAT AGEX DOES NOT GUARANTEE PAYMENT FOR ANY TRANSACTION UNLESS OTHERWISE NOTIFIED TO THE BUYER IN WRITING. You agree to hold AGEX and its Assigns harmless for any damages caused by AGEX’s inability to fund any transaction under the Terms and referenced herein.
g. Taxes and Fees. You acknowledge and agree that you will be responsible for bearing the cost of any sales or comparable taxes associated with purchases made by you or on your behalf from a Seller via the AGEX Service. You further acknowledge that federal, state, city, municipal, or other government bodies or agencies or other entities with jurisdiction over your Livestock or operations may impose taxes, fees or surcharges related to your transactions with Sellers and that AGEX may disclose information about all transactions you enter into via the AGEX Service to any taxing authority claiming jurisdiction. Because AGEX only provides a service which facilitates transactions between Sellers and Buyers and is not a party to any agreement or transaction between any Seller and any Buyer, you are solely responsible for determining whether any such tax, fee or charge is applicable, calculating the same and remitting it to the applicable authority. You agree to indemnify and hold harmless AGEX from and against any claim relating to any such tax or charge. AGEX does not offer tax related advice to Users; for questions about your tax liability, you must contact your own attorney, accountant or tax advisor.
h. Transaction Summary. If you wish to export or otherwise share your AGEX activity or data, from or attributable to your account, you can access reports of comprehensive trading activity and inventory data in a format that can be sent to a third party (“Transaction Summary”). Transaction Summaries may only be available to you for dissemination if the following conditions are met: You agree that all of your Livestock included are purchased via the AGEX Service; You agree that all of your Livestock included are identified and/or associated with AGEX tags within 7 days of the date of purchase by you or at your express direction; All Livestock and/or Livestock Content and Data may only be removed from your account by being sold via the AGEX Service and not otherwise deleted or removed by you.
i. Right To Inspect. You acknowledge and agree that, upon written notice to you, AGEX and its assigns have a right to inspect any and all Livestock purchased on the AGEX Service and/or either: (1) are currently outstanding and not paid for in full; or (2) are currently held under a monitoring contract with AGEX and/or its subsidiaries, partners, or affiliates.
3. TERMS APPLICABLE to all users
a. Conditions of Eligibility. In order to access and/or use the AGEX Service in any capacity, you must (i) be at least 18 years of age and (ii) have any required license(s) for the activity you intend to engage in, including but not limited to those required by the jurisdiction in which you are physically located and those in which Livestock you intend to buy or sell are physically located. If you have ever had an account for any portion of the AGEX Service suspended or terminated or had account privileges revoked by AGEX, you are not eligible to access or use the AGEX Service without the express written consent of an authorized representative of AGEX.
b. Account Maintenance. Your failure to comply with the Policies including, without limitation, your failure to maintain accurate, complete, and up-to-date account information, including having an invalid or expired Payment Method (defined below), may result in your inability to access or use the AGEX Service. Unless otherwise permitted by AGEX in writing, you may only possess one account.
c. Data and Content Ownership. “Livestock Content and Data” means any data (including, without limitation, animal weight, 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 you or on your behalf or obtained from you or providers of Third-Party Services (defined below) providing services to you and/or AGEX (each a “Service Provider” and collectively “Service Providers”). 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 or cause the same to be submitted, inputted, or uploaded, in each case 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 Service Provider(s) and their designees to and agree to take commercially reasonable steps to ensure that a third party with possession of such Livestock will permit AGEX and/or Service Provider(s) and their designees, with respect to Livestock listed for sale on or tracked via the AGEX Service: (i) photograph and take video of such Livestock at your site or the site at which such Livestock is located; (ii) tag such Livestock with an AGEX ear tag, which ear tag may be enabled with technologies such as RFID; (iii) run such Livestock through the AGEX Smart Chute; (iv) weigh such Livestock; (v) upload Livestock Content and Data generated by AGEX or Service Provider(s) with respect to such Livestock to the AGEX Service; and (vi) take any action necessary or desirable to accomplish any of the foregoing. AGEX hereby grants to you a non-exclusive, limited license to internally use and reproduce the Livestock Content and Data with respect to livestock owned or listed by you that you export from the AGEX Service while you have an active account for access to the AGEX Service.
d. Acknowledgements.
You acknowledge and agree that nothing herein, and no transaction conducted through the AGEX Service, shall in any way be construed to establish you or any other User as an agent, employee or representative of AGEX, that you and each other User are, vis-à-vis AGEX, independent parties, 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, Buyers, Livestock or any Livestock Content and Data (including, without limitation, animal weights). AGEX only provides a technology-enabled service to Users.
You agree to furnish all tools and materials necessary to undertake your obligations and responsibilities, and incur all expenses associated with your tracking, listing, auction, sale, or purchase of Livestock through the AGEX Service. It is the sole responsibility of each User to ascertain its appropriate and desired level of insurance and to obtain and maintain policies for the same. You acknowledge that AGEX is not responsible for and shall not be liable for actions taken or promises made by any other User or third party, and that it is your sole responsibility to contract with and pay for any Third-Party Services (defined below), and to comply with all applicable law in doing the same. You accept all risks related to interacting with and transacting with other Users and Service Providers. AGEX DOES NOT SUPERVISE SERVICE PROVIDERS. AGEX IS NOT LIABLE FOR ANY ACTS OR OMISSIONS OF SERVICE PROVIDERS, EVEN IF THE SERVICE PROVIDERS ARE PROVIDING SERVICES TO AGEX.
You acknowledge and agree that AGEX does not transfer legal ownership of Livestock from any Seller to any Buyer and that 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.
You acknowledge and agree that although AGEX may provide advice or assistance to a Seller or Sellers in pricing Livestock, the relevant Seller alone is ultimately responsible for establishing all pricing applicable to any given auction or sale.
You acknowledge and agree that AGEX or its designee retains a portion of payments made for Livestock through the AGEX Service, but solely as an Auction Fee for facilitating the transactions and payments envisioned hereby, and not as payment for any such Livestock.
You acknowledge and agree that Livestock Content and Data populated by other Users is provided for informational purposes only and that AGEX makes no representations as to the completeness or accuracy of any Livestock Content and Data.
e. User Promises. In connection with the use of or access to the AGEX Service, you agree that you are responsible for all activity that occurs under your account, that you will maintain the security and secrecy of your account username and password at all times and take affirmative, proactive steps to ensure that you and anyone who accesses your account:
comply with the Policies as amended from time to time and all applicable law, including local law, at all times;
meet the requirements imposed by any other party with which your account transacts business via the AGEX Service;
do not provide or post or allow to be provided or posted any false, inaccurate, incomplete, misleading, or deceptive information about any Livestock and will, upon becoming aware of inaccurate, incomplete, misleading, or deceptive information on the AGEX Service, notify AGEX of and, where possible, promptly take affirmative steps to correct any and all such information;
do not manipulate the price of any Livestock or interfere with any other User’s listings;
do not transfer your AGEX account or User ID to another party without AGEX’s consent;
do not post or distribute spam or unsolicited or bulk electronic communications;
do not use any robot, spider, scraper, data mining or extraction tools, or other automated means to access the AGEX Service or any portion thereof for any purpose;
do not interfere with the working of the AGEX Service or any portion thereof or impose an unreasonable or disproportionately large load on the AGEX infrastructure;
do not export or re-export all or any portion of the AGEX Service or any AGEX application, software or tool;
do not 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;
do not infringe any Intellectual Property Rights of any third party or post any content that does not belong to you;
do not commercialize any AGEX application or any information or software associated with such application, except with the prior express written permission of AGEX;
do not harvest or otherwise collect information about Users without their consent and the express written permission of AGEX;
do not circumvent any technical measures AGEX uses to provide or control access to the AGEX Service or any portion thereof; and
do not access or attempt to access the AGEX Service from the European Union or any location outside of the United States.
maintain accurate, complete, and up-to-date information in your account on the AGEX Service, including a valid phone number, address, and payment method which is acceptable to AGEX in its sole and absolute discretion (“Payment Method”);
do not take any action that may undermine feedback or ratings systems that AGEX may implement from time to time;
do not distribute viruses or other technologies that may harm AGEX, the AGEX Service or any portion thereof, or the interests or property of Users;
Without limiting other remedies, AGEX may suspend, restrict, limit or terminate your User account or access to the AGEX Service if AGEX believes you are abusing the AGEX Service in any way or fail to comply with the terms hereof or any portion of the Policies referenced herein, including the promises listed above. AGEX shall have the right to seek an injunction (without having to post a bond) to prevent any threatened breach or stop any actual breach or continued breach of this section.
f. 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) in a conflict between the Standard Terms and any term or terms in a Seller’s listing or auction listing terms (“Listing Terms”), the Listing Terms shall prevail unless otherwise agreed in writing except with respect to (vi) below, 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 as 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 EXW at the location of the Livestock, as identified in the sale or auction listing for such Livestock, and Buyer shall be responsible for transport at Buyer’s sole expense. Seller shall exercise due care with respect to Livestock in Seller’s possession that are legally owned by Buyer.
Seller represents and warrants to Buyer that all Livestock listed or sold by or on behalf of Seller are in sound and merchantable condition and free of any contagious disease, and acknowledges that any 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 defensible legal title to any Livestock listed for sale or auction or otherwise made available for sale or auction on or through the AGEX Service by or on behalf of Seller, free and clear of all liens, or, alternatively, that Seller is acting as the legal owner’s rightful agent and has full right, power, and authority to agree to the terms hereof and to sell and convey such Livestock free and clear of all liens.
Livestock will be deemed accepted by Buyer unless Buyer provides written notice to Seller of Buyer’s rejection of the Livestock, specifying in sufficient detail the reason(s) for such rejection, within 24 hours after the Livestock is delivered pursuant to (ii) above.
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 or any Listing Terms (each such agreement a “Sales Contract” and collectively, the “Sales Contracts”). Buyer and Seller agree to look solely to each other for any claim, damage or liability associated in any way with each Sales Contract and expressly waive and release AGEX with respect to the same. Buyer and Seller agree to, jointly and severally, indemnify, defend and hold harmless AGEX for any claims that arise from or are in any way related to the Sales Contracts or any of them.
g. Non-contravention. Each User agrees that it will not circumvent the AGEX Service for any purpose, including 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 Service, even if sales terms are finalized or payment is made outside of AGEX. Any User in violation of this provision shall reimburse AGEX in full for all costs and expenses (including attorneys’ fees) incurred by AGEX to collect amounts that would, but for the action of such User(s), have been paid to AGEX. g-2. ARM’S LENGTH TRANSACTIONS ONLY. Notwithstanding any of the Standard Terms for Livestock transactions, each User agrees and warrants that any transaction submitted using the AGEX Service, whether or not any credit is extended from Lender to either Buyer or Seller, is and shall be an Arm’s Length Transaction. For the purposes of these Terms, an Arm’s Length Transaction shall mean any transaction EXCEPT: A transaction that occurs between entities and/or businesses that have the same beneficial ownership or shared beneficial owners;A transaction such that a buyer could not be a Bona Fide Purchaser, as defined in applicable law;A transaction between spouses, domestic partners, children, parents, legal guardians, or other family members;A transaction that occurs between Users that have a significant relationship with each other, or otherwise have influence or control over one another;A transaction that, in AGEX and/or Lender’s sole judgment, is found to be between Users that are not acting independently; orA transaction that, in AGEX and/or Lender’s sole discretion, is not an Arm’s Length Transaction for any reason not listed hereinabove.Each User expressly agrees and understands that it is in AGEX and/or Lender’s SOLE DISCRETION to determine whether or not a transaction, as submitted, is an Arm’s Length transaction. Each User expressly acknowledges that, should AGEX and/or Lender determine that a transaction is not an Arm’s Length Transaction, that AGEX may reject the transaction from the Platform and is not obligated to fund or transact the transaction as submitted.
h. Disputes Among Users and Release of AGEX. The AGEX Service is designed to create a tool to manage Livestock, create a marketplace for Livestock and to facilitate transactions among Sellers and Buyers. AGEX does not provide Livestock, nor does AGEX 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, AND YOU AGREE 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 WAIVE AND RELEASE AGEX 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.
i. Representations About You, Generally.You represent and warrant that neither you nor any Listed Livestock nor any person or entity you are acting on behalf of are 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), you are not a citizen of the European Union (“EU”) or otherwise subject to the EU’s General Data Protection Regulation, and you are not listed on any U.S. Government list of prohibited or restricted parties or acting on behalf of any person or entity so listed. You represent and warrant that you have the full power and authority to agree to and be bound by the terms hereof on your own behalf and/or on behalf of any entity you represent and have informed AGEX in writing of the identity of any person or entity you represent if you are acting on behalf of another party with respect to your use of the AGEX Service.
j. 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 AGEX Service, Sellers, Buyers, Borrowers, Lender, Service Provider, or your experience (“Feedback”), you agree the same will be true, accurate, and not intended to disparage any AGEX Party or any User and that AGEX will be free to use such Feedback for any purpose and without restriction or obligation to you.
k. Consent to Receive Communications. By creating an account in https://agex.io and agreeing to these Terms, YOU AGREE AND CONSENT TO RECEIVE MESSAGES (WHETHER BY PHONE, EMAIL, TEXT MESSAGES, OR PUSH NOTIFICATIONS) FROM AGEX, including one-time security passcodes, payment reminders, and other notifications related to your use of the AGEX Service. You can opt-out from any SMS messages by replying STOP. Message and data rates may apply. However, you agree that you will not be able to opt-out from any SMS messages from AGEX if you are: (1) delinquent or past due on any amount under a credit agreement, promissory note, guaranty agreement, or similar document; (2) the amounts due are for business or agricultural purposes and thus not subject to the Fair Debt Collections Act (FDCPA) of 1978; (3) is not initiated by a “debt collector” as defined by the FDCPA. If you receive any communication from AGEX or any Service Provider, or User that you believe could violate these Terms or any Policy, you agree to promptly notify AGEX at info@agex.io.
l. Location Data. Any location data provided by or on the AGEX Service is for basic reference purposes only and is not intended to be relied upon for navigational purposes or in situations where precise location information is needed or where erroneous, inaccurate, time-delayed, or incomplete location data may lead to death, personal injury, property, or environmental damage.
m. License Terms. Subject to your prior acceptance of and compliance with the Policies, AGEX grants you, while your account for the AGEX Service is active and in good standing, a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to access and use the AGEX Service and content, information, and materials thereon for your own internal business purposes on authorized devices. By way of example and not limitation, with respect to authorized devices, iOS-based apps included in the AGEX Service may be used only on devices running iOS (including but not limited to iPad and iPhone) that you own or control. This license does not allow you to use the AGEX Service on any device that you do not own or control. The terms of this license and the Policies will govern any upgrades provided by AGEX that replace and/or supplement the AGEX Service, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern. AGEX also grants you, while your account for the AGEX Service is active and in good standing, a limited, non-transferrable license to display AGEX’s logo and trademark (the “AGEX Marks”) on your website or as otherwise approved by AGEX for the purpose of publicizing your relationship with AGEX as a Buyer, Seller, Borrower, or Service Provider, provided that (i) any such display is in accordance with AGEX’s trademark usage guidelines as made available to you from time to time; and (ii) AGEX may terminate such license at any time for any reason or no reason. Your rights under these licenses will terminate automatically and without notice from AGEX if you fail to comply with any of the Policies. Upon termination of the licenses, you shall cease any and all use of the AGEX Service and AGEX Marks and destroy all copies, full or partial, of the AGEX Service, AGEX Marks, or any portion thereof which are in your possession.
n. Reservation of Rights; Confidentiality. The AGEX Service and all rights therein are and shall remain the property of AGEX or AGEX’s licensors. AGEX reserves all rights, title and interest in and to the AGEX Service, the AGEX Marks, and any AGEX equipment and all AGEX Intellectual Property Rights not expressly granted hereunder. 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”). For so long as you have an account active or open for access to the AGEX Service and for a period of three (3) years thereafter, you agree to preserve the confidential nature of the AGEX Confidential Information by retaining and using it in trust and confidence, solely for your own internal use except as provided herein, and by using the same degree of protection that you use to protect similar proprietary and confidential information of your own, 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 threatened breach or stop any actual breach or continued breach of this section.
o. Restrictions on Use of the AGEX Service. You may not rent, lease, lend, sell, redistribute, or sublicense all or any portion of the AGEX Service or any AGEX Mark or AGEX Confidential Information. If you sell a device which has been set up to access the AGEX Service to a third party, you must remove any application or software which comprises a portion of the AGEX Service from the device before doing so. You are solely responsible for actions taken via your account, including any actions taken on your behalf. 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 or any portion thereof for any use other than its intended use.
p. 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"), which 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. You acknowledge that AGEX is not responsible for and shall not be liable for actions taken or promises made by Service Providers, and that it is your sole responsibility to contract with and pay for any Third-Party Services, and to comply with all applicable law in doing the same. 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 Service Providers is subject to the privacy policies of such third parties. You agree that you will use the Third-Party Services at your sole risk. Service Providers retain total and complete discretion as to when they do and do not provide such services. AGEX DOES NOT SUPERVISE SERVICE PROVIDERS. AGEX IS NOT LIABLE FOR ANY ACTS OR OMISSIONS OF SERVICE PROVIDERS, EVEN IF THE SERVICE PROVIDERS ARE PROVIDING SERVICES TO AGEX.
q. 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 or any materials or information thereon.
r. 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 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 grant to AGEX a non-exclusive, fully-paid, royalty-free, sublicensable, transferable, irrevocable, worldwide license to use Your Data in order to provide the applicable elements of the AGEX Service (and any applicable Third-Party Services) to you and as deemed necessary by AGEX to monitor and improve the AGEX Service. Additionally, you 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 (such statistics, compilation, or synthesis being “Blind Data”). Notwithstanding anything herein 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 in a form such that: (i) Your Data has been de-identified and cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular person; (ii) AGEX has implemented technical safeguards and business processes that prohibit re-identification; (iii) AGEX has implemented business processes to prevent inadvertent release of the de-identified data; and (iv) AGEX makes no attempt to re-identify the information. 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, if your account for access to the AGEX Service is suspended or cancelled or the AGEX Service undergoes a disruption for any reason, you may not have access to or the ability to recover such data.
s. Third-Party Content. The AGEX Service may also contain content of AGEX’S licensors or Service Providers or other Users ("Third-Party Content"). Third-Party Content is protected by copyright and other laws, and providers of Third-Party Content own and retain all rights in and to the same. Neither AGEX nor AGEX’S licensors or Service Providers grant you any other licenses, express or implied, to the intellectual property of licensors, or Service Providers or to Third Party Content, and you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Third-Party Content without the consent of the relevant Third-Party.
t. Privacy of User Information. You agree that you owe AGEX and other Users, for so long as you have an account active or open for access to the AGEX Service and thereafter, a duty to hold all information of other Users (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 herewith.
u. Copyright Policy. Except as otherwise expressly set forth herein with respect to the AGEX Marks, 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. If you believe that your work has been made available through the AGEX Service in a way that constitutes copyright infringement, please provide AGEX’s Agent for Notice of Copyright Claims the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (iii) a description of the material that you claim is infringing and where that material may be accessed within the AGEX Service; (iv) your address, telephone number and email address; (v) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. AGEX’s Agent for Notice of Copyright Claims can be reached as follows: AGEX, Inc. Attn: Agent for Notice of Copyright Claims 830 NE Loop 410 Suite 504 San Antonio, TX 78209 512.817.2439 info@agex.io
v. Network Access and Devices. You are responsible for obtaining the data network access necessary to use the AGEX Service. Your mobile network’s data and messaging rates and fees may apply if you access or use the AGEX Service from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the AGEX Service and any updates thereto. AGEX does not guarantee that the AGEX Service, or any portion thereof, will function on any particular hardware or devices.
w. Limitations on Availability. The AGEX Service is not and will not be 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. Users shall not access or use or attempt to access or use the AGEX Service where such actions would be prohibited by applicable law.
x. Termination. Except as otherwise stated herein or therein, these Terms and the Policies are effective until your account for access to the AGEX Service is suspended or cancelled by you or AGEX or they are cancelled or amended by AGEX, provided that, in the case they any Policy is so amended, these Terms and the Policies shall only cease to be effective insofar as they are replaced by the Policies as amended. Your rights hereunder will terminate automatically without notice from AGEX if you fail to comply fully with any of the Policies. 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 any Policy or any applicable 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 of or access to the AGEX Service in any case and without notice or liability.
y. Indemnity. YOU AGREE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO INDEMNIFY, DEFEND, AND HOLD HARMLESS AGEX FROM ANY LOSS, LIABILITY, CLAIM, OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES AND MONETARY JUDGMENTS AGAINST AGEX, MADE BY ANY USER, SERVICE PROVIDER, OR OTHER PARTY THAT ARISES OUT OF, IS RELATED TO, OR IS BASED ON (i) YOUR VIOLATION OF THESE TERMS OR ANY POLICY AND/OR ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES OR AGREEMENTS CONTAINED HEREIN OR THEREIN; (ii) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT; (iii) YOUR USE OF THE AGEX SERVICE; (iv) ANY LIVESTOCK CONTENT AND DATA THAT YOU SUBMIT OR UPLOAD (INCLUDING ANY TRANSACTION SUMMARY); (v) ANY CLAIM MADE BY ANY SERVICE PROVIDER, OTHER USER, OR OTHER THIRD PARTY RELATING TO YOUR ACTS OR OMISSIONS; OR (vi) PROPERTY DAMAGE (INCLUDING DAMAGE TO AGEX EQUIPMENT), PERSONAL INJURY OR INJURY TO LIVESTOCK CAUSED BY YOU, YOUR EMPLOYEES, CONTRACTORS, OR AGENTS. YOU EXPRESSLY ACKNOWLEDGE THAT THERE ARE INHERENT RISKS ASSOCIATED WITH LIVESTOCK HANDLING, INCLUDING SERIOUS INJURY, DEATH, INJURY TO OR DEATH OF LIVESTOCK, AND EQUIPMENT DAMAGE.
z. 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 USER OR SERVICE PROVIDER, 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 TIMELY OR AT ALL. 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 TO THE EXTENT OF THE APPLICABLE LAW.
aa. 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 LOST PROFITS OR COST OF COVER, OR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR 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 OR AGEX MARKS, 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, INCLUDING WITHOUT LIMITATION ANY FINANCING ARRANGEMENT BETWEEN YOU AND LENDER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU TO THE EXTENT OF THE APPLICABLE LAW. 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 DATE THE APPLICABLE CLAIM AROSE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
cc. Arbitration and equitable relief. By agreeing to the Policies, you agree that, except as provided below, you are required to resolve any claim that you may have against AGEX as set forth in this Section 4(bb). This will preclude you from bringing any class, collective, or representative action against AGEX and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against AGEX by someone else. For the avoidance of doubt, this precludes you from bringing or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action against AGEX.
Disputes. Except as expressly provided below, you agree that all disputes, controversies, and claims (“Claims”), including but not limited to any Claim related to or arising under (i) the Policies and prior versions of the Policies or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the AGEX Service at any time, (iii) incidents or accidents resulting in personal injury that you allege occurred in connection with your use of the Services, whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, (iv) your relationship with AGEX, or (v) Livestock Content and Data, will be settled by binding arbitration between you and AGEX and not in a court of law, to be conducted in the English language in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association, whether such dispute or controversy arose before or after the date you agreed to the terms hereof, and this provision shall survive after your relationship with AGEX ends. The scope of this provision applies to all Claims against AGEX, each of its successors or assigns, and any of the current or former officers, directors, principals, shareholders, owners, employees, or agents of any of them. To the extent that any third-party beneficiary brings such a claim, that claim shall also be subject to this arbitration provision. Any question regarding the scope or enforceability of this 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 agree to resolve any dispute set out in (i) above 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 shall select one (1) neutral arbitrator. 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.
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. Your responsibility to pay any AAA filing, administrative fees, and arbitrator fees will be as set forth in the AAA Rules. Each party will separately pay its counsel fees and expenses unless otherwise required by law.
Exceptions to Arbitration Provision. i. 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. ii. This arbitration provision shall not apply to Claims relating to AGEX’s or your Intellectual Property Rights. iii. This arbitration provision shall not apply to Claims that are not subject to pre-dispute agreements to arbitrate. iv. This arbitration provision shall not apply to AGEX’s or each of its designee’s Claims against you for any payment(s) due hereunder or pursuant to the terms of any specific sale. v. This arbitration provision shall not apply to individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
Acknowledgment. YOU HAVE READ AND UNDERSTAND SECTION 4(bb), WHICH DISCUSSES ARBITRATION. YOU UNDERSTAND THAT BY USING THE AGEX SERVICE, YOU AGREE TO SUBMIT ANY CLAIMS ARISING OUT OF OR RELATING TO (A) THESE TERMS OR THE POLICIES, OR THE EXISTENCE, BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY HEREOF OR THEREOF, OR (B) YOUR ACCESS TO OR USE OF THE AGEX SERVICE AT ANY TIME, WHETHER BEFORE OR AFTER THE DATE YOU AGREED TO BE BOUND BY THESE TERMS, 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. Notwithstanding any choice of law or other provision herein, the parties agree and acknowledge that this arbitration provision evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties to be bound by the provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation, enforcement, and administration of this Arbitration Agreement, and that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue regarding the interpretation or enforcement of this Arbitration Agreement, then that issue shall be resolved under the laws of the State of Texas pursuant to Section 4(cc) below.
Changes. AGEX may modify, revise, or terminate the terms of this Section 4(bb) 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 your agreement to arbitrate in any way, you agree to waive a jury trial of any dispute, controversy, or claim between you and AGEX that is not submitted or compelled to arbitration for any reason whatsoever.
ee. Supplemental Terms. AGEX may offer additional services from time to time in the future. To enjoy certain aspects of these additional services of the AGEX Service, 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 hereof. 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.
dd. Miscellaneous. These Terms and the Policies 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 4(bb), 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 and federal courts located in Travis County, Texas, and you consent to the jurisdiction of state and federal courts located in Travis County, Texas.The laws of the State of Texas, excluding its conflicts of law rules, govern the Terms and Policies and your use of the AGEX Service. Your use of the AGEX Service may also be subject to other local, state, national, or international laws. The Terms and Policies constitute the entire agreement between you and AGEX regarding the AGEX Service except where another agreement has been executed in writing between you and an authorized representative of AGEX. Any amendments to the Terms or Policies and waivers of the provisions hereof or thereof shall only be valid if in writing and signed by an authorized executive of AGEX. The failure of AGEX to exercise or enforce any right or provision of the Terms and Policies shall not operate as a waiver of such right or provision. Section titles herein and therein 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. The Terms and Policies operate to the fullest extent permissible by law. AGEX may freely transfer or assign any or all of its rights or obligations hereunder. You may not transfer or assign 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 ab initio. If any provision hereof is found to be invalid, illegal or unenforceable, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity, illegality or unenforceability, without in any way affecting the validity and enforceability of any remaining provisions.
CONTACT AGEX AGEX can be reached at: info@agex.io 512-817-2439
bb. Other Restrictions. 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 (i) only as Commercial Items and (ii) 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.
