BY CLICKING ON THE “ACCEPTED AND AGREED” BUTTON, USER ACKNOWLEDGES AND AGREES THAT:
b. ANY SALE OF GOODS OR SERVICES CONDUCTED THROUGH THE WEBSITE SHALL CONSTITUTE A SALE BETWEEN THE RESPECTIVE SELLER AND BUYER ONLY, AND WE SHALL HAVE NO CONTRACTUAL OR OTHER RELATIONSHIP WITH THE SELLER OR BUYER OTHER THAN TO ASSIST IN TRANSMITTING PAYMENTS AND OTHER INFORMATION.
c. WE ARE NOT THE AGENT OF EITHER THE SELLER OR THE BUYER, NOR ARE WE A LIVESTOCK DEALER, LIVESTOCK BROKER, LIVESTOCK MARKET, MARKET AGENCY OR AUCTIONEER.
i. Seller is the rightful, sole and exclusive owner of all right, title and interest in and to the good(s) sold, free and clear of any liens or other encumbrances of any nature.
ii. The sale by Seller of such good(s) will not violate any security agreement or other instrument to which Seller is a party or by which Seller or any of Seller’s assets is bound.
iii. Any livestock sold by Seller is healthy and when processed will be fit for human consumption.
a. Transactions are between Buyer and Seller, not Website.
i. All sales conducted through the use of the Website shall constitute transactions between the purchaser (“Buyer”) and Seller only. We shall have no contractual relationship with Buyer with respect to any sales conducted through the use of the Website, other than to assist in transmitting payments or other information between Seller and Buyer. We are not the agent for Seller or Buyer, and have no authority to act for or bind either Seller or Buyer. Seller shall be solely responsible for fulfilling each order. We are not a livestock dealer, a livestock broker, a livestock market, a market agency or an auctioneer.
ii. A Seller may have its own shipment policies, return policies or other terms applicable to sales of the Seller’s goods or services (“Seller’s Terms”). Buyers are solely responsible for reading and complying with any applicable Seller’s Terms. WE HAVE NO CONTROL OVER ANY SELLER’S TERMS, DO NOT APPROVE OR ENDORSE ANY SELLER’S TERMS, AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR THE FORM, CONTENT, EFFECT OR ENFORCEMENT OF ANY SELLER’S TERMS.
iii. WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY OR SAFETY OF ANY LIVESTOCK OR OTHER GOODS OR SERVICES SOLD, THE TRUTH OR ACCURACY OF ANY CONTENT POSTED BY A SELLER, THAT SELLERS WILL DELIVER THE GOODS OR SERVICES OFFERED, THAT THE BUYERS WILL PAY FOR THE GOODS OR SERVICES PURCHASED, THAT SELLER WILL ACCEPT THE RETURN OF AN ITEM PURCHASED, OR THAT A BUYER WILL NOT RETURN AN ITEM PURCHASED.
i. To use the Website, User must register by entering all required information on the Website registration page. Upon registration, we will create an account for User. By registering an account with the Website, you agree to permit us to charge your PayPal account, credit card or debit card for any fees owed to the Website, and all purchases made through the use of the Website, including any applicable Taxes (as defined below in “Seller Responsible for Taxes”).
ii. Each User shall maintain current, complete and accurate information, including current credit or debit card numbers, email addresses and telephone numbers, to enable us to (a) charge User’s PayPal account, credit card or debit card for any applicable charges; and (b) provide notices or other communications to User.
iii. When you register, you may be asked to create a profile including a profile name. YOU SHOULD NOT USE YOUR USER NAME OR YOUR ACTUAL NAME AS YOUR PROFILE NAME. Anyone could use your actual name to locate your actual personal address using readily available Internet search engines.
iv. WE DO NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR OTHERWISE SCREEN ANY OF OUR USERS. IT IS USER’S RESPONSIBILITY TO CONFIRM THAT ANY OTHER USER IS A LEGITIMATE SELLER OR BUYER OF GOODS OR SERVICES, AND EXERCISE CAUTION BEFORE SHARING PERSONALLY IDENTIFIABLE INFORMATION WITH ANY OTHER USER.
c. Website Fees. Users will be charged fees as set forth in the Website. We reserve the right to change our fees at any time.
d. Charges to the Buyer; Shipping; Processing.
i. For each purchase of goods or services through the Website or Services, the Website may estimate and charge the Buyer’s PayPal account, credit card or debit card for: (a) the total sales price(s) for the item(s) ordered; (b) any Taxes to be included in the amount charged, as directed by the Seller; (c) any processing charges; (d) any shipping cost; (e) any transaction fee owed to PayPal or the Website; and (f) any other fee(s) owed to the Website.
ii. Shipping of any goods sold using the Website is solely the responsibility of the Seller, the Buyer or the processor, not the Website. The Buyer shall be solely responsible for any loss, storage fees or other expenses of any nature arising out of or resulting from any failure by the Buyer to promptly arrange for and pay the cost of processing or shipping. THE BUYER IS SOLELY RESPONSIBLE FOR BEING AWARE OF THE RANGE OF POSSIBLE SHIPPING RATES FOR ANY GOODS PURCHASED, AND MAKING APPROPRIATE ARRANGEMENTS SO THAT ANY PERISHABLE GOODS ARE SHIPPED, DELIVERED AND ACCEPTED IN SUCH A MANNER AND WITHIN SUCH A TIME FRAME THAT THEY WILL NOT SPOIL.
iii. THE BUYER IS SOLELY RESPONSIBLE FOR SELECTING A PROCESSOR OR AGREEING TO ANY PROCESSOR SELECTED OR SUGGESTED BY A SELLER. THE WEBSITE MAKES NO WARRANTIES OR OTHER REPRESENTATIONS REGARDING ANY PROCESSORS.
iv. In the event that we are unable to process or charge a User’s PayPal account, credit card or debit card for any amount(s) owing, User promises to promptly pay any such amounts. We shall have the right to collect any amounts owed by any legally available means.
e. Seller’s Responsibilities Generally. Each Seller shall be responsible for:
i. Submitting accurate pricing and other information about any goods or services listed, including good descriptions, good images and any other Content.
ii. Promptly fulfilling each order.
iii. Ensuring that any goods are properly packaged, shipped or delivered to the Buyer or processor.
iv. Fully and accurately specifying whether the Seller will be responsible for shipping goods, how any such shipping charges will be calculated (if in addition to the purchase price), and any limit to the geographical area in which the Seller will be responsible for shipping.
v. Specifying the shippers and processors the Seller recommends.
vi. Prompt delivery of goods to any shipper or processor. Without limiting the foregoing, Seller is responsible for promptly delivering any animal that is the subject of a completed Beef Order to the applicable processor at no additional charge beyond the the purchase price for said Beef Order
vii. Describing in sufficient detail the Seller’s return policy or specifying if no returns are accepted.
viii. Promptly and professionally handling any and all requests for returns, refunds or exchanges.
ix. Fully and accurately specifying: (a) each location where any sales, use or other Taxes must be collected, (b) which items listed are subject to any such Taxes; and (c) the rate(s) at which any such Taxes are to be calculated.
x. Complying with all laws and regulations, whether local, state or federal, with respect to the foregoing responsibilities.
f. Seller Responsible for Taxes and Transaction Fees.
i. Each Seller shall be solely responsible for (a) determining whether any Taxes are due; and (b) ensuring that all such Taxes are properly calculated, collected, reported and remitted to the proper authority.
ii. “Taxes” shall mean any federal, state or other taxes or assessments of any nature, including but not limited to sales, use, value added, goods and services, consumption, import, export or excise taxes or duties, which result from or are otherwise related in any way to any (a) sales of a Seller’s goods through the Website or otherwise, or (b) any other act or omission of a Seller or any affiliate of the Seller.
iii. Each Seller acknowledges and agrees that PayPal transaction fees may be deducted from any payments made to Seller through the Website.
g. Returns, Replacements or Refunds. You agree to submit any requests for returns, refunds or exchanges directly to the Seller of the goods or services in question. Without limiting the foregoing, Buyers may request refunds through PayPal in accordance with PayPal’s applicable policies. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE WEBSITE SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH REGARD TO ANY REQUESTS FOR RETURNS, REFUNDS OR EXCHANGES. For the avoidance of doubt, the Website is not obligated to return or refund any fees paid to the Website for your use thereof in the event you request a return, refund or exchange with respect to goods or services purchased from a Seller.
h. Release of Liability for Disputes Between Users. To the extent that you may have a dispute with one or more other Users, and to the maximum extent permitted by applicable law, you fully and forever release and discharge BRS, Inc. and its successors, assigns, officers, directors, shareholders, agents, employees and attorneys from any and all actions, claims, causes of action, demands, or expenses for damages or injuries, whether asserted or unasserted, known or unknown, foreseen or unforeseen, arising out of correlating in any way to any such dispute. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USER EXPRESSLY WAIVES THE PROTECTION OF ANY STATUTE OR OTHER LAW THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH USER MAY KNOW OF OR SUSPECT TO EXIST AT THE TIME OF AGREEING TO THIS RELEASE.
i. Seller’s Account. We reserve the right to withhold or restrict funds from a Seller’s account as needed to protect us from potential liability as we may determine in our sole discretion. WE DO NOT ASSUME AND HEREBY DISCLAIM ANY OBLIGATION TO COLLECT OR REPORT ANY TAXES, OR TO REMIT TAXES TO THE PROPER AUTHORITY.
j. Right to Refuse Service. We reserve the right to refuse service to anyone at any time in our sole discretion, including but not limited to disabling or discontinuing access to the Website. We shall have no responsibility for responding to or resolving any dispute of any nature between two or more Users, but we may in our sole discretion cancel or suspend any transactions conducted using the Website, or require a Seller to cancel and/or suspend any transactions or shipments, refund any Buyer charges or accept returns.
ii. We hereby grant User a nonexclusive, nontransferable, revocable license to create hyperlinks to the Website, so long as: (a) User does not remove or obscure, by framing or otherwise, any portion of the Website; (b) any link or linked website does not portray us, the Website or any Services in a way that may be construed as derogatory or misleading; (c) User does not link to any website that promotes or engages in illegal, unethical or immoral activities; and (d) User agrees to immediately discontinue any such link upon request.
i. The licenses set forth above only grant to User the right to use the Website and Services and view Content, and User does not acquire any right of ownership or title in them. With the exception of Content provided by you or another User, all right, title and interest in and to the Website, Services and Content, including but not limited to all software; copyrights; the mark “OPENRANGEMARKET™” and any of our other trademarks, service marks, logos or trade dress (collectively the “Marks”); or any other intellectual property rights therein, will at all times remain the property of BRS, Inc. and its licensor(s) and service providers.
iv. As used in this Section 4.b, the term “Services” includes any individual component of the Services and any software used in providing the Services.
a. WE DO NOT ASSUME AND HEREBY DISCLAIM ANY OBLIGATION TO MONITOR ANY CONTENT POSTED, SUBMITTED OR OTHERWISE GENERATED BY YOU OR ANY OTHER USER, OR TO MONITOR ANY USER’S USE OF THE WEBSITE OR SERVICES.
b. NOTWITHSTANDING THE PRECEDING SENTENCE, WE RESERVE THE RIGHT IN OUR SOLE DISCRETION TO DELETE, DISCONTINUE, BLOCK ACCESS TO, OR MODIFY ANY CONTENT, WHETHER PROVIDED BY YOU OR OTHERWISE, AT ANY TIME AND WITHOUT NOTICE, WITHOUT INCURRING ANY LIABILITY THEREFOR.
User or User’s Representative represents and warrants that:
a. The information provided by User or User’s Representative is true.
b. User or User’s Representative is at least eighteen years of age or older and is otherwise competent to enter into binding contracts under applicable law.
c. User or User’s Representative has authority to bind the User.
d. User, if not an individual, is duly organized and in good standing in any jurisdiction in which User operates, and User otherwise has the right to advertise and sell all goods listed by User.
e. User will comply with all applicable federal, state and local laws, rules and regulations (“applicable law”) regarding the sale, purchase, processing or shipping of any goods or services advertised, offered for sale or sold through use of the Website. WITHOUT LIMITING THE FOREGOING IN ANY WAY, USER ACKNOWLEDGES AND AGREES THAT USER AND NOT THE WEBSITE IS SOLELY RESPONSIBLE FOR KNOWING AND COMPLYING WITH ANY USDA REGULATIONS OR OTHER APPLICABLE LAW REGARDING THE RESALE OF PROCESSED MEAT.
f. Any Content or goods or services provided, offered or sold by User will not (i) defame any person or entity, or (ii) infringe, dilute, misappropriate or violate any third party’s patent, trade secret, copyright, trademark, service mark or trade dress rights, right of privacy or publicity, or any other intellectual property right (collectively, “Intellectual Property Rights”).
a. User will be able to access information about User’s account information on the Website, using User’s user name and password. WE WILL USE REASONABLE EFFORTS TO GENERALLY MAKE USER’S ACCOUNT INFORMATION AVAILABLE TWENTY-FOUR (24) HOURS PER DAY AND SEVEN (7) DAYS A WEEK, EXCEPT FOR DOWNTIME RESULTING FROM SCHEDULED OR UNSCHEDULED MAINTENANCE. WE DO NOT WARRANT THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS OR DEFECTS WILL BE CORRECTED.
b. We will send all notices or other information concerning User’s account to the email address provided by User. User shall be solely responsible for receiving all such notices or other information by monitoring User’s email messages on a regular basis.
a. Fail to promptly pay for goods or services User purchases;
b. Fail to deliver goods or services User sells;
c. Interfere with or manipulate any other User's listings or prices;
d. Infringe or misappropriate any copyrights, trademarks, or other Intellectual Property Rights of any third party;
e. Post, list or upload any Content that is fraudulent, inaccurate, incomplete or misleading in any way;
f. Impersonate any person or otherwise misrepresent User’s identity or the origin of any Content;
g. Post, list or upload any Content that is pornographic, obscene or immoral;
h. Upload any virus, worm, Trojan horse or other technology manifesting any contaminating or damaging properties, or that otherwise violates anyone’s rights;
i. Use any spider, robot or other automated means to access the Website and/or Services;
j. Attempt to interfere with the working of the Website and/or Services, bypass any robot exclusion headers, or impose an unreasonable load on the Website servers;
k. Slander, libel or defame any person;
l. Violate any person’s right to privacy (including disclosure of names, telephone numbers, email addresses or other personally identifiable information), present any person in a false light, or misappropriate any person’s right to publicity or right to control the use of his or her own name or likeness;
m. Harvest or otherwise collect information about any User, including email addresses, without the User’s consent;
n. Harass or threaten any person, be abusive, or engage in conduct that could be considered stalking;
o. Link directly or indirectly to any materials to which User do not have the right to link;
p. Involve or promote the use of unsolicited commercial e-mail (“spam”), pyramid schemes, chain letters, or the like; or
q. Offer any goods or services that are illegal in light of the purchaser’s age, jurisdiction or other circumstances.
By providing any Content to the Website, or generating any Content through the use of an API/Widget, User thereby grants BRS, Inc. a non-exclusive, irrevocable, transferable, fully sublicensable, royalty-free license to use, reproduce, display, perform, exhibit, publish, sell, distribute, transmit, broadcast, modify, create derivative works from, or otherwise use all or part of said Content, or authorize others to do so, in any manner or media or by any means, methods, or technologies now known or hereafter to be known throughout the world in perpetuity. User further waives all rights and releases BRS, Inc. and its successors, assigns, officers, directors, shareholders, agents, employees and attorneys from any claims, and shall neither sue nor bring any proceeding against any such parties, for trademark infringement, unfair competition, violation of moral rights or “droit moral”, defamation, invasion of right to privacy, publicity or personality, or any similar matter arising out of or relating in any way to the use and exploitation of the Content by BRS, Inc.
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW:
i. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE WEBSITE, SERVICES, CONTENT AND ANY GOODS OR SERVICES ADVERTISED OR OFFERED FOR SALE ON THE WEBSITE.
ii. USER’S ACCESS TO AND USE OF THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WE AND OUR LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE WEBSITE, SERVICES, CONTENT AND OTHER INFORMATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND AVAILABILITY.
iii. WE AND OUR LICENSORS DO NOT WARRANT THE ACCURACY OF THE CONTENT OR OTHER INFORMATION CONTAINED ON THE WEBSITE. FURTHER, WE DO NOT WARRANT: THAT THE WEBSITE, SERVICES AND ANY CONTENT THEREIN WILL MEET USER’S OR ANY PURCHASER’S REQUIREMENTS; THAT THE WEBSITE, SERVICES, CONTENT, OR ANY OTHER SERVICES PROVIDED WILL BE ERROR-FREE; OR THAT ALL DEFECTS WILL BE CORRECTED.
iv. WE DO NOT WARRANT THAT ANY FILES AVAILABLE FOR DOWNLOADING WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER TECHNOLOGY THAT MANIFESTS CONTAMINATING OR DAMAGING PROPERTIES OR THAT OTHERWISE VIOLATES ANYONE’S RIGHTS.
b. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND THUS SOME PORTION OF THE LIMITATIONS DESCRIBED ABOVE MAY NOT APPLY TO USER. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW:
i. USER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INABILITY TO USE OR ACCESS THE WEBSITE, SERVICES OR CONTENT, DEFECTS IN THE WEBSITE, OR ANY OTHER MATTER ARISING FROM USER’S USE OF THE WEBSITE, SERVICES OR CONTENT SHALL BE TO DISCONTINUE USING THE WEBSITE.
ii. IN NO EVENT SHALL WE OR OUR LICENSORS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS RESULTING FROM BUSINESS DISRUPTION, LOSS OF DATA, LOST PROFITS, LOST GOODWILL, OR DAMAGE TO SYSTEMS OR DATA, WHETHER IN AN ACTION FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE OR OUR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND THUS SOME PORTION OF THE LIMITATIONS DESCRIBED ABOVE MAY NOT APPLY TO USER. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
b. User may terminate User’s participation in the Website on ten (10) days notice by email to info@OpenRangeMarket.com.
ii. User’s business is terminated or suspended for any reason; or
iii. User becomes subject to any federal or state bankruptcy or insolvency proceedings.
d. Upon termination:
i. User will make no further use of the Website or Services.
ii. We may use all or any part of the balance in User’s account to offset any chargebacks, adjustments, refunds or other disputes or claims. We may retain all or any part of the balance in User’s account for a reasonable time, as we may determine in our sole discretion, to enable us to determine whether any such funds may be needed for any such purpose.
a. It is our policy to fully comply with the Digital Millennium Copyright Act (the “DMCA”) and applicable regulations. Although we assume no obligation to police the Website for the presence of materials that may be infringing or are otherwise inappropriate, we reserve the right in our sole discretion to remove or disable access to any content, and we will terminate the account of a repeat infringer in appropriate circumstances. A copyright owner or representative thereof may report alleged copyright infringement by sending a notice that complies with the DMCA to our designated agent to receive notification of claimed infringement (the “Designated Agent”) at the following address:
350 JRS Lane
Hobson, MT 59452
b. We reserve the right to change our Designated Agent without prior notice, subject to the applicable requirements of the DMCA and any applicable regulations.
c. All notices of alleged copyright infringement should include substantially the following:
i. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
ii. A description of the material that the copyright owner claims to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
iii. Information reasonably sufficient to permit us to contact the copyright owner (or representative thereof), such as an address, telephone number, and, if available, an electronic mail address.
iv. A statement that the copyright owner (or representative thereof) has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the owner’s agent, or by law.
v. A statement, signed by physical or electronic signature, that the information in the notification is accurate, and, under penalty of perjury, that the copyright owner is, or the representative thereof is authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed.
d. Our Designated Agent may request additional information from (or representative thereof).
e. PURSUANT TO THE DMCA, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MAKES A MATERIAL MISREPRESENTATION THAT MATERIAL IS INFRINGING, OR THAT MATERIAL WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION, MAY BE LIABLE FOR ANY DAMAGES, INCLUDING COSTS AND ATTORNEYS’ FEES, INCURRED BY A SERVICE PROVIDER WHO IS INJURED BY SUCH MISREPRESENTATION, OR BY THE COPYRIGHT OWNER OR LICENSEE, AS THE RESULT OF THE SERVICE PROVIDER RELYING UPON SUCH MISREPRESENTATION IN REMOVING OR DISABLING ACCESS TO SUCH MATERIAL, OR IN REPLACING OR CEASING TO DISABLE ACCESS TO THE MATERIAL.
d. No Waiver. Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right.
e. Reformation; Severance. If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect.