User Agreement as of October 23, 2020
1. Introduction and Your Acceptance of Our User Agreement
a. Before you use our Services (as defined below), please carefully read this User Agreement as found at www.centralstockyards.com/UserAgreement (as well as any successor uniform resource locator(s) (“URL(s)”), together with any listing agreement or forward contract that you may have signed (or may sign in the future) as a livestock Seller or Buyer (as the terms “Seller” and “Buyer” are defined in each listing agreement, forward contract or other document related to our Services that you sign if you are a seller or buyer (respectively)), as found at www.centralstockyards.com or successor URLs) that are hereby incorporated by this reference; all of which may be posted or updated from time to time on our Services; as they collectively constitute a formal legal agreement (such formal legal agreement collectively, the “User Agreement”) by and between “you” (also referred to as “your” and “yours”, whether or not capitalized) and Central Stockyards, LLC, a Delaware limited liability company (“Central Stockyards”, also referred to as “CSLLC”, “our”, “ourselves”, “us” or “we”, whether or not capitalized).
b. Our User Agreement covers all our business you may interact with, including our software, web applications, mobile applications, application program interface(s) (or “API(s)”), notifications, servers, services, our www.centralstockyards.com or other websites, social media accounts, devices, payment processing, similar products, similar services, and any information, data, text, graphics, photos, videos or other material uploaded, downloaded or appearing in, on or about Central Stockyards (all 19 items collectively, our “Services”). (Please note: for clarity, any time that the precise word “including” appears in this document, the words “but not limited to” are presumed to immediately follow each word “including” unless specifically mentioned otherwise.)
c. By accessing or using our Services as a guest or in a CSLLC user account, and/or by clicking “I Accept” or “I Agree” or similar language when this choice is offered to you, you accept and agree to be bound by our User Agreement, and your digital signature will be date and time stamped when you first agree to our User Agreement. You also agree to allow us to execute our User Agreement on your behalf if your consent is required for us to comply with any law or regulation.
e. this document creates a legally binding agreement between you and central stockyards. this document will also create a legally binding contract between you and a seller or buyer if you conduct a transaction on one of our services. EVEN IF you understand this document, WE RECOMMEND THAT YOU seek legal advice.
f. Please be advised OUR USER AGREEMENT CONTAINS PROVISIONS WHICH SUBSTANTIALLY LIMIT THE DAMAGES YOU MAY SEEK AGAINST CENTRAL STOCKYARDS, WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND CENTRAL STOCKYARDS HAVE AGAINST EACH OTHER ARE RESOLVED, and as DESCRIBED in the “GRAIN INSPECTION, packers and stockyards act” (“GIPSA”) and its regulations, reduces your rights. IF YOU DO NOT AGREE WITH OUR User Agreement, YOU MAY OPT OUT AT ANY TIME BY NOT USING OUR Services. IF YOU HAVE ANY QUESTIONS OR CONCERNS, PLEASE contact us by email at email@example.com. Our mailing address is Central Stockyards, LLC, 1127 Park Avenue, Omaha, Nebraska 68105-2254, and our telephone number is 800-576-5667.
2. Newest Update; Your Comments & Feedback
a. The date on which this User Agreement was most-recently updated appears at the top of each page of this document; that date is referred to as the “Newest Update” date.
b. If you do not agree with a new update to our User Agreement, please notify us via email within 15 days of the Newest Update at firstname.lastname@example.org and request to have your CSLLC account disabled. Please include your reasoning of why you do not agree with our new update. If we do not receive such a request, then your agreement to our new update will become effective as of the Newest Update. Even if you request that we disable your account, the terms, covenants, agreements, provisions, conditions and limitations (all six (6) terminologies, collectively the “Provisions”, and individually a “Provision”) of the last User Agreement you agreed to shall survive.
c. We welcome your comments, feedback, and suggestions for improvement (all three collectively, your “Feedback”). Please email email@example.com with your Feedback; with respect to Feedback that we receive from you, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property (or “IP”) rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit your Feedback that we receive from you for any purpose.
3. About Central Stockyards
a. Central Stockyards is an advanced marketplace that allows users to sell and buy livestock in an auction-style format with numerous proprietary features. Each actual sale contract is directly between Seller and Buyer.
b. Even though we help facilitate the transaction between each Seller and Buyer, and we designed our marketplace to help protect both each Seller and Buyer, such as by providing escrow services, payment processing, dispute resolution and other ancillary services, CSLLC does not and cannot guarantee the existence, quality, safety or legality of any listing; the truth or accuracy of any user’s content or listings; the knowledge and ability of Sellers to list accurately; the ability of Buyers to pay for items; or that a Buyer or Seller will actually complete a transaction.
4. Equipment, Software, Internet Access, Security and Passwords
a. You are solely responsible for providing the hardware, software and internet connection needed to access our Services.
b. Your CSLLC user account is protected by your password. You are solely responsible for maintaining the secrecy of your passwords and/or any account information and ensuring your network and transmissions are secure. Be sure to log out of your account and close any browser windows after each use. Be sure to change your account password periodically. If you suspect unauthorized use of or access to your account, you agree to notify us immediately by calling us at 800-576-5667 or sending us an email at firstname.lastname@example.org.
c. You are solely responsible for all actions taken on your account and CSLLC will not be liable for any actions taken with your account because you provided access to someone you shouldn’t have, or you failed to maintain the secrecy of your password. Should you choose to disclose your password to anyone, you are solely responsible for ensuring that they are aware of our User Agreement and they fully comply with our User Agreement.
d. We use commercially reasonable administrative, technical, personnel, and physical security measures designed to safeguard information about you in our possession against loss, theft and unauthorized use, disclosure or modification. Of course, despite these measures, we cannot guarantee perfect security of networks, servers and databases that we operate or that are operated on our behalf.
5. Prohibited Behaviors
a. By using or accessing our Services, you agree that you will use our Services only for lawful purposes and you will not use our Services:
1. in any way that breaches or circumvents any Third-Party (as defined below in subparagraph “8.” of this Article 5) rights, our systems, or any law or regulation (including any laws regarding the export of data or software to and from the United States of America or other countries), or would expose CSLLC and/or any of our users to liability, violence or injury;
2. to exploit, harm or attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
3. to post any deceptive, defamatory, false, inaccurate, libelous, misleading, obscene, pornographic, threatening or vulgar content;
4. to impersonate or attempt to impersonate CSLLC, any CSLLC employee, another user of our Services or any other person or entity (including, without limitation, by using email addresses, login credentials, or screen names associated with any such person or entity);
5. to misrepresent any listing you create;
6. to manipulate the price of any listing or interfere with any other user’s listings or enjoyment of our Services;
7. to take any action that may undermine our ratings systems;
8. to transfer your account (including your profile information and ratings) to a Third Party (where “Third Party(ies)” (or “Third-Party” where applicable) means any party(ies) other than you or CSLLC) without our prior written consent;
9. to distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
10. to distribute viruses, malware or any other software or hardware technologies that may harm CSLLC or the interests or property of any of our CSLLC users;
11. to use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose unless approved from us to you in writing prior to any such activity;
12. to interfere in any way with the effective and timely operation of our Services, or impose an unreasonable or disproportionately large burden on our data infrastructure (including “denial of service” attacks or other similar nefarious activity);
13. to knowingly infringe the copyright, trademark, patent, publicity, moral, and/or other IP rights that belong to or are licensed to CSLLC, our affiliates or any of our users, including for example copying, decompiling, disassembling, displaying, distributing, modifying, reproducing, reverse engineering, or preparing derivative works from content that belongs to CSLLC or someone else;
14. to commercialize any of our Services or any information or software associated with our Services;
15. to collect any information about any users of our Services;
16. to circumvent or attempt to circumvent any technical measures that we use to protect our systems or provide our Services;
17. to create multiple accounts on our Services — each individual or entity may have only one CSLLC account, but for clarity (and by way of example only), it is permissible:
a. for the same family unit or business operating entity to have a CSLLC account for each separate legal entity or trust that is part of that overall family unit;
b. for an authorized adult child with a power of attorney to create a separate CSLLC account for their elderly parent who owns livestock but does not use a computer; or
c. for a CSLLC representative or contract cattle buyer or seller who is representing multiple clients as Buyer or Seller on behalf of such clients.
18. to create duplicate listings of the same item.
b. For clarity, the above prohibited behaviors do not include these customary permitted uses:
1. using your computer or similar device to temporarily store copies of such materials in random access memory where such storage is incidental to your accessing and viewing those materials;
2. downloading or printing information provided on our Services for your internal business purposes only, and not for further reproduction, publication or distribution to Third Parties that are not part of your internal business;
3. storing files that are automatically cached by your web browser for display enhancement purposes;
4. downloading a single copy of any CSLLC user applications that we might provide to your computer and/or mobile device, provided you use such applications solely for your own use in accordance with our User Agreement, and further provided that you agree to be bound by all Provisions of any end-user license agreement for each such application;
c. If we reasonably believe that you are engaging in any prohibited behavior or we reasonably believe you are abusing any Services or any of our users in any way, we immediately may, in our sole discretion and without limiting other remedies, limit, suspend or terminate your account, remove outstanding listings and cancel all outstanding bids you may have, and if necessary, refer the matter to the proper legal authorities. We may also consult and cooperate with law enforcement authorities to prosecute users of our Services who violate the law.
d. CSLLC has the discretion to disable unconfirmed accounts or accounts that have been inactive for a long time, or to modify or discontinue our Services at any time in our sole discretion without informing you and without prior notice.
e. CSLLC reserves the right to refuse to provide, or terminate all or part of, our Services to anyone for any reason, or no reason, at our sole and absolute discretion.
6. Consignment Agreement
a. When you publish a listing as Seller on one or more of our Services, you are consigning your livestock listed to CSLLC and you are agreeing to all of the Provisions set forth in our User Agreement. If you consign livestock to Central Stockyards and then sell, or attempt to sell, that livestock outside of Central Stockyards at any time during your listing term with us, you agree as Seller that among other remedies we may pursue, we may charge any of your Seller financial accounts linked to our Services our full sale commission on your listing per our fee schedule.
b. We reserve the right, and you as Seller agree to allow us without notifying you, to make minor revisions to any of your listings when needed; such as correcting spelling errors, punctuation and editing photos or videos if necessary. If major revisions are necessary, we will reasonably try to contact you for your review and approval, but we reserve the right to change or suspend any of your Seller listings if we cannot reach you.
7. Our Fee Schedule
Our fee schedule will be posted in this User Agreement or elsewhere on our Services, and will include the date of Newest Update of the fee schedule. We may change our fee schedule from time to time by posting the changes in this document and/or elsewhere on our Services, and if we do, our new fee schedule will not apply to previous listings, but only apply to new listings that are created after the date and time specified in our updated fee schedule.
8. Rights to User-Submitted Content
When you submit or upload content to our Services, whether directly or indirectly (e.g., when you create a listing), you represent and guarantee that you own or otherwise control all necessary rights to do so, and you hereby grant CSLLC a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right and license to exercise any and all IP rights you have in such content in connection with our provision, expansion and promotion of our Services, in any media now known or ever developed, and you hereby waive your right to enforce against us, our assignees, our sublicensees and their assignees, your IP rights in such content in connection with our, those assignees’, and those sublicensees’ use of such content.
9. Our IP and Proprietary Technology; Other Names and Marks
a. The name “Central Stockyards” and our other marks, rights of publicity, logos, designs and phrases we use in connection with our Services (all six items collectively the “Marks”) are trademarks, service marks, copyrights or trade dress owned or controlled exclusively by CSLLC or our affiliates in the United States and other countries. You may not use our Marks unless you have received prior written and signed permission from us.
b. CSLLC or our affiliates or licensors or other providers exclusively own or control all right, title and interest in the patents, copyrights (which includes rights in derivative works), moral rights, trade secrets and other IP embodied by, or contained in our Services, and all such IP is protected by United States and international patent, copyright, trademark, trade secret and other IP or proprietary rights laws. All logos, names, product and service names, designs and slogans on our Services other than those of Central Stockyards are the trademarks of their respective owners.
10. Agreement to Debit and Credit Financial Accounts; Right to Setoff
a. You represent, agree and guarantee that you have ownership or legal control of the financial accounts that you link to our Services. You further agree and authorize us to debit or credit your financial accounts that you link to our Services as necessary so we may fulfill the Provisions of our User Agreement and operate our Services. Finally, you agree that CSLLC has the right to setoff any funds of yours in CSLLC custody in the event you have any outstanding fees, commissions, penalties or arbitrator- or court-awarded funds owed to CSLLC, or resident in CSLLC custody.
b. When you set your “Deposit Account” for Seller’s payments, you will need to include your bank’s routing number and account number. We have built into our Services a microdeposit verification feature to help ensure you have entered the correct account information. However, only you can confirm to us the account information that you have provided to us is correct. If you provide us with incorrect account information: (i) you understand that transfers may be sent to the wrong account and we may not be able to recover the funds; and (ii) you agree that you are solely responsible for any losses that may occur due to your incorrect information, and you will not make any claims against us related to any such errors you might make and you will fully reimburse us for any related losses we incur because of your errors described in this paragraph.
c. If you reverse a transaction that we initiated on one of your accounts pursuant to our User Agreement, we will consider your reversal to be a theft of our property, and you hereby grant us the right in our sole discretion to refer such matter to the proper authorities. In addition, you hereby agree that you will be liable for actual damages, incidental damages, arbitration costs, and our attorney’s fees and expenses to pursue such matter, and you agree that you shall comply with and not appeal any equitable relief determined.
11. Insufficient Payments; Fees; Credit Balances
a. Payments may be sent by wire transfer, automated clearing house (“ACH”) transaction or check. Any fees incurred for sending payment will be at the Seller’s or Buyer’s expense, as applicable. If we request a payment from you per our User Agreement, listing agreement, forward contract or other document related to our Services that you have signed or may sign in the future, and our initial request for your payment is denied by your financial institution, we will contact you very soon thereafter (usually by phone, text, email and/or push notification). Once we contact you, you will have 24 hours to remedy the matter. The simplest remedy is to pay for the purchase by credit card or debit card. If you cannot make the payment by credit card or debit card, then your only other method would be to wire transfer immediately-available funds to our account, or send a cashier’s check or certified check delivered to us via “guaranteed overnight delivery” via United States Postal Service, FedEx or United Parcel Service. Any credit card or debit card processing fees, wire fees or other fees charged on funds transfers for your listings or purchases (as applicable) to or from CSLLC, or courier/shipping fees, are entirely your responsibility.
b. If you do not remedy the insufficient payment described in this Section 11 within the 24-hour timeframe, then we may take any one or all of the following actions:
1. Charge the amount to another financial account you have on file with us;
2. Charge you interest on the overdue amount at the highest rate allowed by law;
3. Disable your account, remove any outstanding listings and cancel any outstanding bids you may have; and/or
4. Turn your account over to collections. CSLLC, or the collection agencies we retain, may 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.
c. Any overpayments, prepayments or credit balances with CSLLC will not earn any credited interest; should you wish to receive payment from CSLLC for any such credit balance, please call or email us and your credit balance will be promptly refunded to you.
12. Authorization to Obtain Information
You authorize us to retrieve information about you from our service providers, including credit and information bureaus. You acknowledge this may include your name, addresses, phone numbers, dates of birth, family members, credit history and other information about you. You further acknowledge we may use your information to verify any other information you provide to us. In some cases, this information, or lack thereof, may lead to suspension or termination of your account or our inability to complete a transaction you are involved in.
You agree to receive all communications, notices and disclosures (including those required by law) via email or other electronic means, and you acknowledge these communications will have the same legal effect as if we provided you a physical original or copy. You further agree we may communicate with you by posting on our Services, email, SMS / text or push notification, and you agree to pay any costs charged to you by your telecommunications provider associated with such communications. In some instances, however, we may still communicate with you via traditional postal mail, and you agree to those communications as well.
14. Contract Between Seller and Buyer
14.1. Contract Terms and Conditions
a. When a Seller creates and publishes a listing on one of our Services, Seller is making an offer to sell the livestock listed. When a bidder/Buyer bids on a Seller’s listing during a live auction, Buyer is legally obligated to purchase the livestock at that price unless Buyer is out-bid. A contract is not created between a Seller and Buyer until the auction for the listing ends and Seller’s reserve price, if any, has been met. If a Seller decides to “Delete Seller’s Listing” before any Buyer bids are submitted, or if Seller’s reserve price is not met, then no contract is ever created between a Seller and a Buyer. Remember, too, that a Seller can remove Seller’s reserve price at any time.
b. When a contract is created between a Seller and Buyer, this entire Article 14 entitled “Contract Between Seller and Buyer” applies and governs the actions of Seller, Buyer and CSLLC. To avoid any doubt, the legally binding contract that is created to sell and purchase livestock is solely between the Buyer and Seller. CSLLC is only a Third-Party intermediary to your contract as a Buyer or Seller.
c. When you sign a listing agreement or forward contract or any other document under our Services, the Provisions are derived from: (i) the Provisions in this User Agreement; (ii) each listing agreement that you sign as Seller for your specific listing sold; and (iii) each forward contract or other document that you sign as Seller or Buyer.
d. The specific listing includes the details of the transaction and provides, among other things, Seller, Buyer, purchase price, listing expiration time, phone numbers, addresses, bidding log, pictures, videos, summary, and pictures of documents, registration certificates, health certificates, etc. This listing becomes a permanent part of our record and is incorporated into our User Agreement by this reference
e. Buyer and Seller agree that our Provisions (which for clarity, include this User Agreement and any listing agreement, forward contract or any or other document related to our Services that you sign): (i) represent the entire agreement between the Buyer and Seller with respect to each such transaction; (ii) supersede any contemporaneous agreements or understandings, written or oral, between the Buyer and Seller; and (iii) CSLLC will only enforce the Provisions set forth in any signed listing agreement, forward contract, this User Agreement, and any other document related to our Services that you sign.
14.2. Additional Provisions
a. Seller’s Representations and Warranties. In addition to Seller’s other representations and warranties, Seller represents and warrants that Seller’s cattle in each Seller listing are healthy, merchantable, and all livestock listed by Seller are as described in each such listing. In addition, Seller also represents and warrants that Seller has good and marketable title to the cattle in each such listing, and that except as otherwise described in such listing agreement, Seller will deliver all cattle free and clear of all liens and encumbrances.
b. Liens; No Assignment of Rights. Any change in financing of Seller’s cattle listed in each such listing agreement will be reported immediately to CSLLC. Seller grants a security interest to CSLLC in all cattle the subject of each such listing agreement to secure repayment of the down payment advanced by Buyer to Seller. Buyer shall have all rights of a secured party as provided under Article 9 of the Uniform Commercial Code (the “UCC”). Each such listing agreement may be filed as nonconforming UCC financing statement. Seller agrees to notify all parties who may have a security interest, or that may acquire any security interest later, in Seller’s cattle that are the subject of each such listing agreement, of the provisions of this Section 14.2. Buyer’s rights can be assigned at the sole discretion of CSLLC. Seller is prohibited from assigning Seller’s rights to any other party except to CSLLC under each such listing agreement. If cattle are encumbered by lien or other type of security interest, Buyer’s check will be made payable to CSLLC and to such lienholder.
c. Federal & State Regulations. The cattle covered by each listing agreement are purchased subject to all federal and state regulations. All inspection, weighing, brand inspection, dipping, beef council and veterinary fees to the FOB point will be paid by Seller. Seller agrees that if at the time of delivery there exists any federal or state regulation prohibiting the intrastate, or interstate, shipment of the cattle subject to such listing agreement, the Buyer has the option to terminate such transaction with Seller and Seller will immediately return to Buyer all monies paid by Buyer, and thereafter all rights and obligations of the Seller and Buyer for such listing will be ended.
14.3. Forward Contract
a. You agree and will defend with us that any forward contract created with our Services is:
1. a forward contract pursuant to 11 U.S.C. §101(25) (as may be found at www.law.cornell.edu/uscode/text/11/101 or successor URL);
2. the transactions that occur with our Services are part of such forward contract trade;
3. that CSLLC is in the business of entering into forward contracts with CSLLC customers;
4. the livestock traded with our Services are commodities as defined by the Commodity Exchange Act and as codified at 7 USC 1 et seq. (as may be found at www.law.cornell.edu/uscode/text/7/chapter-1 or successor URL); and
5. CSLLC is a forward contract merchant as further described at 11 U.S.C. §101(26).
14.4. No Assignment
Neither Buyer or Seller shall assign any right or interest in the contract created by our User Agreement or any forward contract signed by such Buyer or Seller, and any such assignment shall be void.
15. Disclaimer of Warranties; Limitation of Liability
a. We endeavor to keep our Services safe, secure and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other functionality in our applications may not occur in real time. Such functionality is subject to interruptions and delays beyond our control.
b. You agree you are using our Services at your own risk. OUR SERVICES are being provided to you on an “AS IS” and “AS AVAILABLE” basis. We exclude all express or implied warranties, terms and PROVISIONS including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.
c. In addition, CSLLC, including our officers, directors, agents and employees, are not liable, and you agree not to hold us responsible, for any damages or losses including loss of money, goodwill, reputation, profits, other intangible losses, or any special, indirect or consequential damages) resulting directly or indirectly from:
1. The content you provide (directly or indirectly) using our Services;
2. Your use of or your inability to use our Services;
3. Guidance provided by CSLLC;
4. Delays or disruptions of our Services;
5. Viruses, malware or other malicious software obtained by accessing or linking to our Services;
6. Glitches, bugs, errors or inaccuracies of any kind in our Services;
7. Damage to your device hardware or software from the use of any of our Services;
8. The content, actions or inactions of Third Parties, including the theft of livestock listed using our Services or the destruction of such livestock;
9. A suspension or other action taken with respect to your account;
10. The duration or manner in which your listings appear in search results; or
11. Your need to modify practices, content or behavior, or your loss of or inability to do business, as a result of changes to our User Agreement.
d. CSLLC operates our business on the presumption that our users are honest, informed individuals who represent their livestock fairly and conduct honest business. Accordingly, our pricing structure and business model are based upon you agreeing to limit our liability which may arise between you and us. Therefore, if we are found to be liable as to any matter dealing with OUR User Agreement, our Services or any matter dealing with our business, you agree our liability to you or to any third party is limited to the amount of fees you actually paid to us in the three-month period immediately preceding the event giving rise to the liability.
e. The foregoing limitations on our liability to you will apply regardless of the legal theory on which your claim is based, and includes contract, tort (including negligence), strict liability, or any other theory or basis.
f. THE FOREGOING DISCLAIMERS DO NOT AFFECT ANY LIABILITIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. Dispute Resolution
a. PLEASE READ THIS SECTION CAREFULLY. IT affects YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND CENTRAL STOCKYARDS HAVE AGAINST EACH OTHER ARE RESOLVED. IF YOU DO NOT AGREE WITH OUR USER AGREEMENT, YOU MAY OPT OUT AT ANY TIME BY NOT USING OUR SERVICES.
b. You and CSLLC agree any claim or dispute, at law or in equity, that has arisen, or may arise, between you (including your employees, principals or agents) and us (including our employees, principals or agents) or you and another user (including such user’s employees, principals or agents) that relates in any way to or arises out of previous versions or the Newest Update of our User Agreement, your use of or access to our Services, the actions of CSLLC or CSLLC employees, principals or agents, or any products or services sold or purchased through our Services, will be resolved in accordance with the provisions set forth in this Article 16 entitled “Dispute Resolution” rather than in court. However, anything in our User Agreement to the contrary notwithstanding, if we suspect you of violating our IP rights, we may bring appropriate legal action against you in any manner, and in any court, we deem appropriate.
c. When an issue arises between you and us or between you and another user, we may consider your performance history and the specific circumstances in applying our policies.
d. In the event the claim or dispute is between you and Central Stockyards, you will only be permitted to pursue claims and seek relief against Central Stockyards (including our employees, principals or agents) on a SINGULAR basis and not as a plaintiff or a class member in any class or representative action or proceeding. further, ANY CLAIM OR DISPUTE THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO our USER AGREEMENT OR OUR SERVICES MUST BE COMMENCED WITHIN ONE YEAR AFTER THE original CAUSE OF ACTION occurs; OTHERWISE, any SUCH CAUSE OF ACTION, CLAIM or dispute IS PERMANENTLY BARRED.
16.1. Informal Negotiations
a. Any controversy, dispute or claim arising out of or relating to the Services we provide, or our User Agreement or any other CSLLC-related document that you sign, regardless of whether the claim is between two or more users, or a user(s) and CSLLC, shall first be informally negotiated between such disputing party(ies) and CSLLC. CSLLC and such party(ies) agree to attempt in good faith to reach a reasonable resolution within a reasonable timeframe. Upon reaching a resolution, the disputing parties shall memorialize such agreement of resolution in writing and we will close the matter. You may begin any informal dispute process by filing a detailed notice of your controversy, dispute or claim at email@example.com.
b. In the event an agreement of resolution cannot be reached through these informal negotiations, then such disputing parties agree to immediately proceed to arbitration as described below. The Parties agree that all claims of any type, including defenses, and including without limitation all claims for misrepresentation, fraud, tort, or any other claims whatsoever, shall be included in such arbitration.
a. If disputing parties cannot reach an informal agreement as described above, then the matter shall be submitted to final and binding arbitration by the American Arbitration Association (the “AAA”) and shall be heard by one experienced neutral arbitrator, unless such disputing parties agree to additional arbitrators; any arbitrator shall have reasonable experience in commercial transactions of the type provided for in our User Agreement and who shall be chosen by the AAA.
b. The arbitration shall take place in Omaha, Nebraska, and you hereby waive all objections based upon improper or inconvenient venue. The arbitration shall apply the AAA Commercial Arbitration Rules then in effect, and judgment upon any award rendered in such arbitration will be final and binding upon the disputing parties, and may be entered in any court having jurisdiction; provided, however, that any relief awarded shall not affect any other users of CSLLC; provided further, if the value of the relief sought by all claimants in such dispute is $10,000 or less, the arbitration shall be conducted by telephone, videoconference or similar means, and based solely on written submissions. In arbitrations where an in-person hearing is held, any party may attend by telephone, videoconference or similar means, unless the arbitrator requires otherwise.
c. Seller and Buyer shall each pay their own respective counsel fees and all other costs and expenses in connection with their participation in or preparation for the arbitration, and Seller and Buyer further agree to equally share the related costs, expenses and fees of the AAA and all arbitrator(s) participating in such arbitration; provided, however, in the event CSLLC is joined to a dispute involving two or more CSLLC users, such users shall equally share the reasonable costs incurred by CSLLC, including CSLLC’s attorney’s fees and expenses, in order to participate in the arbitration, and CSLLC shall not share in such expenses and fees of such arbitration in any manner whatsoever. Further, the arbitrator may elect to award to the prevailing party in any dispute that proceeds to arbitration reimbursement to such prevailing party for all of such prevailing party’s reasonable cost and expenses, including but not limited to attorney and arbitrator fees incurred in resolving such dispute that proceeds to arbitration.
d. If an arbitrator or court decides that any controversy, dispute or claim cannot be arbitrated due to applicable law, such controversy, dispute or claim shall be severed from the arbitration, and, if CSLLC is a party to the severed dispute, such dispute shall be brought in an appropriate state or federal court located in Douglas County, Nebraska and all parties hereby waive any rights to trial by jury, and hereby waive all objections based upon lack of jurisdiction or improper or inconvenient venue of any such court; all other controversies, disputes or claims not severed shall continue to be arbitrated as specified in our User Agreement.
You agree to AND HEREBY indemnify, release, defend and hold harmless Central Stockyards and our employees, principals and agents, from and against any and all actual or threatened claims, actions, losses, lawsuits, judgments, damages, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with (1) your use of our Services; (2) anything relating in or to OUR USER AGREEMENT, including your failure to follow the PROVISIONS of OUR USER AGREEMENT; (3) any transaction that occurs on our marketplace; (4) any injury you may sustain while viewing livestock or any other injury related to or with you using our Services; or (5) any dispute you may have with ONE OR MORE of our OTHER users.
18. Miscellaneous Provisions
18.1. Good Faith
You agree to act in good faith as to all matters dealing with our Services and our User Agreement.
18.2. Further Action
If necessary, you agree to perform all further acts and to execute, acknowledge and deliver any documents which may be necessary, appropriate or desirable to carry out all of the Provisions of our User Agreement.
No failure or delay by CSLLC in exercising any right, power or privilege we may have shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other exercises of any right, power or privilege.
18.4. Entire Agreement
a. This User Agreement, along with any listing agreement or forward contract that you may have signed or may sign in the future as a Seller or Buyer, and any other document related to our Services that you may have signed or may sign in the future, collectively represent the entire agreement between you and CSLLC, and supersede any contemporaneous agreements or understandings, written or oral, between you and CSLLC with respect to the subject matter of our User Agreement.
b. If there is a conflict between or among: 1) the Provisions of the Newest Update of this User Agreement; 2) any forward contract that you may have signed or may sign in the future as a Seller or Buyer; or 3) any listing agreement that you may have signed or may sign in the future as a Seller; or 4) any other document related to our Services that you may have signed or may sign in the future; the Provisions of documents described in “1)”, “2)”, “3)” and “4)” of this Section 18.4.b. will prevail in 1/2/3/4 order.
Our User Agreement shall be deemed to have been equally drafted by all parties to this User Agreement and in the event of ambiguity shall not be construed against any party.
If any provision of our User Agreement is determined to be unenforceable, such provision shall be construed or deemed amended to conform to applicable law to the greatest extent possible given the original intent of such provision; provided, however, if the provision as construed or deemed amended materially alters the overall intent of our User Agreement, then such provision shall be separated, severed and stricken, and the unenforceability of such provision shall not invalidate or render unenforceable any other provision of our User Agreement.
18.7. Successors and Assigns
Our User Agreement is for the mutual benefit of the parties, and the covenants and agreements contained herein shall be binding upon and inure to the benefit of the heirs, personal representatives, executors, administrators and other successors and assigns of the parties. For clarity, as used in our User Agreement and elsewhere in our Services, the defined term “CSLLC” includes all of our subsidiaries, joint ventures, other entities under common ownership and any successor organizations in the event of an acquisition, sale or merger, whether of assets or equity.
18.8. No Joint Relationship
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by our User Agreement, any listing agreement or forward contract.
18.9. Applicable Law
Our User Agreement and your use of our Services, regardless of where your actual use of our Services occurs, shall be governed and construed in accordance with the laws of the State of Nebraska without regard to the provisions for choice of laws thereunder.
The headings contained in our User Agreement are for convenience only and shall not affect in any way the meaning or interpretation of our User Agreement.