1. Binding Agreement:
a) These Terms and Conditions (this “Agreement”) form a legally binding agreement between you and Apex Ag Exchange, LLC (“Software Provider”), with whom you have contracted to provide a website to be used for pre-bidding, timed auctions, webcast auctions, private treaty/consignment sales, liquidations and related services. The following Agreement governs the following:
i. Your use of the Seller’s auction website (the “Website”) and
ii. Any transactions, auctions, bids, purchases or offers you may make, receive or agree to on this Website.
b) PLEASE REVIEW THIS AGREEMENT CAREFULLY BEFORE USING THE WEBSITE. By clicking on the “I agree” button or using the Website after having the opportunity to read this Agreement, you agree to be bound by this Agreement. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE THE WEBSITE.
c) Software Provider may change terms and conditions contained in this Agreement at any time in its sole discretion, and any such changes shall be effective upon being posted to the website. By continuing to use the Website after such changes are effective, you accept those changes and agree to be bound by the revised Agreement.
d) As used in this Agreement, “You” and “Your” refer to you, the user of the Website and to your employer or principal on whose behalf you use the Website. “Buyer” refers to a legal person who buys, or attempts to buy items on the Website. “Seller” refers to a legal person who sells, or attempts to sell items on the website.
e) Each Seller using the Website may have its own terms and conditions, which may govern your interaction with that Seller. If the terms or conditions offered by a Seller conflict with this Agreement, this Agreement shall govern.
3. Website Usage: The Website exists solely as a facilitator of transactions between Sellers and Buyers. Software Provider is not a party to any transactions entered into between Buyer(s) and any Seller(s). Software Provider is not an agent of either Buyer or Seller. Software Provider does not have the right, duty or power to transfer items, or title to any items, from a Seller to Buyer.
4. Buyer and Seller Registration: All registration information that Buyer and Seller provides to Software Provider shall be current, complete, and accurate. Failure of Buyer or Seller to provide information required for registration shall disqualify Buyer or Seller from using the services provided by Software Provider. We reserve the right to deny access to any and all potential Website users who provide incomplete or falsified information pursuant to registration.
You are solely responsible for maintaining the confidentiality of the credentials necessary to access this Website, which shall include but are not limited to usernames and passwords. You agree to complete those transactions that occur using your username and password, without regard to whether you have authorized such transactions. You agree that you shall immediately notify Buyer or Seller of any unauthorized use of your username and password.
If your information changes then you are responsible to update it on the site. Software Provider will not be responsible for lost, delayed or misdirected notices in the event you do not update your information in a timely manner.
5. Eligibility: Buyers and Sellers must be 18 years of age or older. Our services are available only to individuals who can form legally binding contracts under applicable law. If a minor wishes to use our services, they may do so only in conjunction with a parent or legal guardian.
If Buyer or Seller is registering for our services as a business (i.e. partnership, corporation, LLC, etc.) then by doing so, Buyer/Seller represents that he/she has the authority to bind the business to this Agreement. Furthermore, acceptance of the terms and conditions set forth in this Agreement shall be evidence of Buyer/Seller’s authority to bind their respective business entity in all future contracts and agreements with Software Provider and other users of the website.
6. Description of Information: The descriptions of items appearing on the Website and in advertising prior to selling are believed to be correct. Nevertheless, neither those descriptions nor any oral statements made by Seller concerning items being sold shall be construed as a warranty either express or implied. ITEMS ARE SOLD AS IS - WHERE IS and WITH ALL FAULTS. Buyer acknowledges that all lots were available for inspection prior to the auction and, by these terms, and Software Provider strongly encouraged Buyer to carefully inspect each lot in which Buyer has any interest to determine the lots nature, quality and size. If Buyer fails to inspect any lot(s), the failure to inspect, or otherwise be fully informed as to the lots nature, quality, condition, quantity and size will not constitute grounds for any claim, adjusted refund, termination of the contract for sale, or refusal to close the sale.
7. Terms of Sale: Unless Seller specifically lists other terms (in which case such terms shall apply solely to such Seller and not to Software Provider), all sales are final and all products are sold as is, where is, with all the faults, imperfections, omissions and errors in the written description and photograph.
8. Operation of Website: Software Provider does not warrant that the Website will be available at all times or at any particular time or when it does operate, that it will operate without errors. Software Provider may make all or portions of the Website unavailable from time to time in its sole discretion. Software Provider disclaims any liability due to unavailability or errors of the Website and you agree to waive all such claims.
9. Disclaimer of Warranties: By using the Website to offer to sell or buy such items, you warrant that in connection with your use of the Website, you shall:
a) Not violate any applicable local, state, national or international law, statute, ordinance, rule of regulation;
b) Not intentionally buy any items not lawfully offered for sale or purchase in or from the United State or in the jurisdiction where you would receive such item;
c) Not import or export any items from the United States in violation of U.S. law or other applicable law;
d) Not interfere with or disrupt computer networks connected to the Website;
e) Not impersonate any other person or entity, or misrepresent your employment by, or affiliation with, any other person or entity;
f) Not disguise the origin of any information or to make communications to or from you appear to have originated or terminate it a different location.
g) Not interfere with or disrupt any other user’s use of the Website, stalk, threaten, or in any manner harass another user, or send emails to other users who have not requested them;
h) Not upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Website or other computer system.
i) Not access the Website by means of an automated process, spider, bot, or any similar device, (other than by a search engine which makes it result freely available to the public without charge or registrations) without Software Provider’s consent;
j) Not copy any content on the Website or modify content of the Website without written permission form Software Provider;
k) Not use the Website in such a manner as to gain unauthorized entry or access to the computer system of Software Provider or others or to any information stored on such computer systems;
l) Not upload, post, transmit, publish, or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law;
m) Not upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable;
n) Not upload, post, transmit, publish or distribute any material or information for which you do not have all necessary rights and licenses, including any copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; or
o) Not upload, post, transmit, publish, or distribute any unauthorized or unsolicited advertising, solicitations, offers for the sale of services, unsolicited communications, or offers for any “investment opportunities.”
p) By placing a bid on an item on the Website, you warrant that you have the ability and authority to enter into and close the transaction pursuant to the terms and conditions of sale and in according with this agreement.
a) If you place a bid on an item which is offered for sale in an auction format, your bid is irrevocable until such time as you have been out-bid;
b) You are responsible for paying all amounts owed for all winning bids, including without limitation all applicable taxes.
c) All forms of shill bidding (directly or indirectly bidding on an item that you have listed for sale as a Seller), bid manipulation and collusion between users are forbidden. You may not place bids under a false name or with an invalid credit card or other invalid payment method.
d) Sellers may specifically reserve a price for each auction item, but may choose not to disclose the reserve price to potential Buyers. The reserve specifies a minimum price for the auction. Bids below the reserve price will be recorded, but shall not obligate the Buyer to purchase the auctioned item. Sellers may also add additional conditions to the sale of an item by placing a notice in an item’s listing.
a) Bidding is done in increments and will vary according to the price. Be aware that you may be outbid minutes before the close of the auction and may have a limited opportunity to enter another bid.
b) You will not automatically receive notifications if another bidder outbids your maximum bid via email. You will need to monitor the auction activity to stay informed.
c) In the event of a tie, the earlier bid will be considered the winning bid. When bidding ends, all sales shall be considered final. All items are sold “as is.” There are no exchanges or refunds absent an express statement to the contrary expressed herein. A bid by any Buyer shall be deemed conclusive proof that the Buyer is familiar with the Terms and Conditions and that the Buyer agrees to be bound by them.
d) Every transmission over the Internet travels a different route and can be delayed by a variety of factors, including Buyer’s own computer. The time lapse between submission of a bid and its registration can vary by several seconds. Bids are queued by Software Providers host computer in the order received. To be accepted, bids must be received by the host computer prior to closeout.
e) As a Buyer, placing a bid is a binding contract between you and the Seller, and the bid cannot be retracted. Once you place a bid, and if you win, you will be obligated to buy the items at the sale price you indicated as your bid.
12. Horse Race Auction Closing Format:
a) WHEN TIME EXPIRES, ALL LOTS ARE DECLARED SOLD! ORIGINAL ENDING TIMES VARY – SEE SPECIFIC AUCTION FOR DETAILS. EXTENDED BIDDING WILL CONTINUE UNTIL THERE IS NO BIDDING FOR THE ALLOTTED MINUTES. In the event a Horse Race closing continues past 11:30 PM CST, then Software Provider has the right to decrease the extended bidding time to 1 minute without advance warning.
b) REMEMBER TO CLICK ON REFRESH FOR UP-TO- DATE TIME REMAINING. For each auction, the extended bidding period varies based on the number of lots and overall duration of the auction.
i. Example 1: If Auction closes at 8 PM, there is no bidding from 7:58 PM to 8:00 PM. All lots are declared closed and the sale ends at 8:00 PM.
ii. Example 2: Auction closes at 8:00 PM, there is a bid placed at 7:59 PM, Auction is extended by 2 minutes. No more bidding occurs. All lots are declared closed and the sale ends at 8:01. Another bid is placed at 8:00 PM. No more bids are placed. All lots are declared closed and the sale ends at 8:02 PM. Please note that the above is a sample and may or may not match the actual ending times.
a) Any shipping/transportation arrangements are ultimately between the Buyer/Seller and the shipping company and not Software Provider. Buyers may choose to make transportation arrangements themselves, provided that all payment has been made in full and all terms and conditions are met. No animals or other items will be delivered without proof of payment.
b) The Buyer, at Buyer’s own expense, shall transport the items from the Seller. Specific arrangements will be indicated on each individual auction and expenses will be handled between Buyer and Seller.
c) Software Provider is not affiliated with nor do they endorse any shipping companies and assume no responsibility for services provided by these companies.
14. Intellectual Property:
a) The Website (including, without limitation, text, graphics, logos, buttons, icons, brands, trademarks images, audio clips and software) and the collections assembly and arrangements of material on the Website (but excluding any material provided by the Website’s users) are the property of Software Provider and are protected by U.S. and internal copyright laws, except where otherwise indicated. Except for information which is in the public domain or for which you have been given express written permission by Software Provider, you may not copy, modify, publish, display or sell any such information except as authorized by law.
b) By placing any material on the Website, you warrant that you are either the owner of the copyright of such material or that your placing such material on the Website is authorized by the owner of the copyright in such material, its agent, or the law.
c) The trademarks and service marks found on the Website, or to which the website directs you, are property of Software Provider and/or Sellers, whether registered or unregistered, and may not be used without permission of its respective owner. 15. Indemnification: Buyer and Seller agree to defend, indemnify and hold harmless Software Provider, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (collectively “Indemnified Parties”), from and against any claim, loss, damages, liability, judgments, fees and expenses related thereto (including, without limitation, reasonable attorney’s fees (incurred by any of the Indemnified Parties arising from or related to (1) any breach or violation by you of these Terms and Conditions; (2) any claims arising out of or related to the goods or services which you sell, sold, or attempted to sell through the Website; or (3) any claims arising out of or related to your non-performance of your obligations including but not limited to the obligation to complete transactions, to pay all amounts owed, and to deliver goods or series; (4) any content which you cause to be displayed on the Website.
16. Disclaimer of Warranties:
a) SOFTWARE PROVIDER DOES NOT PROVIDE ANY WARRANTY OR REPRESENTATION OF ANY KIND RELATED TO ANY ITEM OFFERED FOR SALE BY A SELLER ON THE WEBSITE. SOFTWARE PROVIDER DOES NOT PROVIDE ANY WARRANTY OR REPRESENTATION THAT ANY SELLER HAS THE RIGHT TO SELL ANY ITEM LISTED ON THE WEBSITE, OR THAT ANY BUYER HAS THE RIGHT TO PURCHASE ANY ITEM LISTED ON THE WEBSITE SOFTWARE PROVIDER DOES NOT PROVIDE ANY WARRANTY THAT ITEMS OFFERED FOR SALE EXIST OR WILL EXIST AT ANY TIME, OR THAT THE DESCRIPTION OF SUCH ITEMS ON THE WEBSITE IS ACCURATE. SOFTWARE PROVIDER MAKES NO WARRANTY THAT ANY SELLER OR ANY BUYER IS WILLING, ABLE, OR HAS LEGAL CAPACITY TO COMPLETE ANY TRANSACTION ENTERED INTO THROUGH THE WEBSITE. SOFTWARE PROVIDER MAKES NO WARRANTY THAT ANY ITEMS LISTED ON THE WEBSITE DO NOT INFRINGE ON ANY INTELLECTUAL OR PRIVACY RIGHTS OF ANY THIRD PARTY. SOFTWARE PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED OR EXPLICITY RELATED TO ANY ITEM LISTED ON THE WEBSITE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING FROM USAGE IN THE TRADE OR PRIOR DEALINGS. YOUR RECOURSE FOR ANY CLAIMS RELATED TO ALL TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE IS SOLELY AGAINST THE BUYER OR SELLER WITH WHOM YOU ENTERED INTO SUCH TRANSACTIONS.
b) THE WEBSITE AND ALL SERVICES MADE AVAILABLE THEREIN, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS”, “WHERE IS”, “AS AVAILABLE” BASIS “WITH ALL FAULTS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SOFTWARE PROVIDER DOES NOT WARRANT THAT THE WEBSITE OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE SERVICES OR THE WEBSITE, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. SOFTWARE PROVIDER MAKES NO WARRANTY THAT THE WEBSITE OR THE SERVICES WILL MEET THE REQUIREMENTS OF ITS USERS, AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT BY POSTING ANY ITEMS ON THE WEBSITES, THAT THE POSTED ITEMS WILL BE SOLD. SOFTWARE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE WEBSITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES PROVIDED BY THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SOFTWARE PROVIDER OR THROUGH THE SERVICES OF THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. AUCTION SOFWARE PROVIDER EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY MISREPRESENATIONS OR BREACHES COMMITTED BY ANY USER. SELLERS ARE SOLELY RESPONSIBLE FOR FINAL INVOICES OF ITEMS PURCHASED. NOTIFICATIONS OF AUCTION BIDS, WINS AND PURCHASES AUTOMATICALLY SENT BY THE WEBSITE AND BID REPORTS THAT ARE ACCESSIBLE WITHIN THE WESBITE ARE PROVIDED SOLELY FOR REFERENCE AND NOT AS FINAL INVOICES OR CONFIRMATIONS OF WINNING BIDS.
c) IF YOU ARE DISSATISFIED WITH THE WEBSITE, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF THE WEBSITE.
17. Limitation of Liability:
a) IN NO EVENT SHALL SOFTWARE PROVIDER BE LIABLE FOR ANY DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE THE WEBSITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, LOST GOODWILL, OR LOST SALES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMGES. FURTHER, IN NO EVENT SHALL THE TOTAL LIABILITY OF SOFTWARE PROVIDER TO A USER FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR THE USE OF THE SERVICES OR THE WEBSITE EXCEED, IN THE AGGREGATE, FIFTY DOLLARS ($50.00).
a) Upon the listing of items, Seller shall pay to Software Provider, a fee as established in the attached Fee Schedule, which shall immediately be drawn from the account in which Seller provided Software Provider when registering to use Website. Such charges shall be for use of the Website in presenting and facilitating a potential transaction between Buyer and Seller.
b) Buyer shall, upon the successful purchase of cattle, make an immediate deposit in the amount of Thirty-Five Dollars ($35.00) per head to Seller. This deposit shall serve as a reasonable measure of Seller’s liquidated damages in the event that Buyer breaches their contract with Seller. However, nothing in this Agreement shall be construed as to limit Seller’s right to seek damages in addition to the deposited amount.
c) Payments made to Software Provider may be made by credit card, debit card, or any other such method Software Provider might introduce at its sole discretion. Buyer and Seller must have a payment method on file when purchasing on Website. In the event Buyer or Seller’s payment method fails, Software Provider may collect fees owed by charging other payment methods on file, retain collection agencies and legal counsel. In addition, the balance of your account shall be charged an additional 10% each month until your account has been paid in full. Further, the collection agencies we retain, may also report information about your account to credit bureaus and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report.
d) If payment has not been received and/or delivery arrangements not been agreed upon within 7 days post auction, the Seller has the right to reclaim property and resell it in any manner deemed necessary. Buyer will be responsible for paying any and all differences between the original sale price on auction day and the resale price if said difference is not fully covered by the deposit set forth in Paragraph 18(b) above.
19. Taxes/Miscellaneous Fees: Software Provider is not responsible for the calculation or payment of any taxes or the reporting or remittance of any taxes to any taxing authority. You expressly agree to comply with any and all applicable laws and regulations, including without limitation, those with respect to taxes. You agree to defend, indemnify, and hold harmless Software Provider from and against any and all damages, penalties, costs and expenses incurred by or imposed upon Software Provider resulting from your failure to comply with applicable tax laws. Likewise, Software Provider is not responsible for any other miscellaneous fees that might result from users’ transactions. Such fees may include, but are not limited to, beef checkoff compliance, breed registration fees, transfer fees, etc.
20. Copyright and Brand Inspection: Software provider is not responsible for brand inspection of any livestock sold on website, nor is Software Provider responsible to verify any copyright or patent inspection on items sold on Website.
21. Relationship with User: You are not an agent, representative, broker, employee, partner, or joint venture of Software Provider. This Agreement shall not be interpreted or construed as to create an association, joint venture, agency, franchise or partnership between you and Software Provider or to impose any partnership obligation or liability upon either party.
22. Links to Third-Parties: The Website may provide links to the websites or services of others (“Third-Party Services”). Links to such Third-Party Services other links, do not constitute an endorsement or guarantee by Software Provider of such Third-Party Services, or the products, content, materials or information presented or made available by such Third-Party Services. You agree that Software Provider is not responsible for any damages or losses caused or alleged to have been caused by any Third Party or the use of any Third-Party Services, or from the products, content, material, services by any third party or the use of any Third-Party Services, or from the products, content, material, services or information presented by or made available through such Third-Part Services.
23. Choice of Law; Consent to Jurisdiction: This Agreement, and all questions with respect to the interpretation of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of South Dakota, without regard for conflict of laws provisions. The parties submit to the exclusive jurisdiction of a venue in the federal and state courts located in South Dakota. Each party hereby waives all defense of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If court proceedings are required to enforce any provision of this Agreement, the prevailing party shall be entitled to an award of reasonable costs and expenses of litigation and any appeal, including reasonable attorneys’ fees.
24. Arbitration: Any legal controversy or legal claim arising out of or relating to this agreement or Software Provider’s services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of South Dakota, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or Software Provider may seek an interim or preliminary relief from a court of competent jurisdiction in the state of South Dakota necessary to protect the rights or property of either party pending the completion of arbitration. Should either party file an action contrary to this provision the other party may recover reasonable attorney’s fees and costs.
25. Notices: Notices shall be given:
a) To Software Provider: To be valid, notices must be sent by certified mail, return receipt requested, to 34761 190 th St., Ree Heights, South Dakota 57371 or to such other addresses as may be designated from time to time in the most recent version of this Agreement.
b) To User. Notices to you will be sent by email to the email address reflected in your registration information. Notices to you shall be deemed to have been received 24 hours after the email is sent. Notices to Software Provider shall be deemed to have been given three days after the date of mailing by certified mail, return receipt requested.
26. Severability: If any provision of this Agreement is held by a court of competent jurisdictions to be invalid or unenforceable, then such provisions shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect.
27. Waiver: Failure to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such rights or provisions.