VIDEO AND ONLINE AUCTION TERMS AND CONDITIONS
These Terms and Conditions constitute an agreement between you and 1901 Trading Co., LLC (“1901 Trading”), and it's subsidiaries, 1901 Livestock, LLC and 1901 Land, LLC describing your rights and obligations for the use of 1901 Trading’s online auction services located at bid.1901tradingco.com, through our main website located at 1901tradingco.com, or through our associated mobile apps (collectively “Site”).
1. ACCEPTANCE OF TERMS AND CONDITIONS. These Terms and Conditions create a legally binding contract. By accessing and using the 1901 Trading Site you represent that you have read, understood, and accepted these Terms and Conditions.
2. CAPACITY AND AUTHORITY. By accessing and using the Site, you represent that you are at least eighteen (18) years of age. If you register as a business, you are representing that you have proper authority to bind the business to this agreement.
3. EFFECT OF PARTICIPATION IN AUCTION. These Terms and Conditions shall apply to every transaction, auction, bid, and sale involving 1901 Trading and its affiliated entities including 1901 Land, LLC and 1901 Livestock, LLC. Through the Site, 1901 Trading provides an online auction platform through which sales are broadcast live on the internet. To participate in any auction, you must pre-register and obtain a Buyer Number. By participating in any auction, you agree to be bound by these Terms and Conditions and to the Livestock Purchase Agreement published in this catalog.
4. BIDDING. Online bids are electronically transferred to 1901 Trading during the sale. Electronic transmission of your bid to 1901 Trading does not mean your bid was accepted. 1901 Trading reserves the right to reject any bid. In the event of any dispute as to the successful bidder, 1901 Trading reserves the right to determine the successful bidder, to continue the bidding, to cancel the sale, or to reoffer and resell the items in dispute. 1901 Trading’s determination shall be final.
5. OBLIGATION TO COMPLETE TRANSACTION. You acknowledge and agree that by placing any bid, you represent and warrant that you, or the entity on whose behalf you are placing the bid, have the ability to close the transaction pursuant to the terms of the Livestock Purchase Agreement published in this catalog. Once your bid has been accepted, you are obligated to complete the transaction with 1901 Trading in accordance with the terms of the Livestock Purchase Agreement.
6. ACCURACY OF INFORMATION. 1901 Trading has made efforts to ensure the accuracy of the information published on the Site. Any deviations from the information published will be agreed upon by all parties before the sale. All announcements from the auction shall take precedence over previously published information.
7. REGISTRATION. You are solely responsible for maintaining the confidentiality of your registration information. You may not authorize other persons to use your Registration Information. You may not sublicense, transfer, sell, or assign your registration information and/or this agreement to any third party. You are solely responsible for all use or activity on your account. If you have any reason to believe that your account is not secure, you are solely responsible for changing the affected registration information on the Site.
8. SITE INTERRUPTIONS. 1901 Trading does not guarantee uninterrupted, continuous operation or access to the Site. You acknowledge that online systems are not fault-free and occasional downtime may occur.
9. SUSPENSION OR BAN. 1901 Trading reserves the right to suspend or permanently ban any user who fails to comply with these Terms and Conditions.
10. AMENDMENT. 1901 Trading reserves the right to change or amend these Terms and Conditions at any time. Any changes will be reflected on the Site.
11. GOVERNING LAW. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Nebraska.
12. Weighing. The parties acknowledge and agree that all Livestock shall be weighed on a scale and in a manner that complies with the regulations promulgated by the USDA’s Agricultural Marketing Service (AMS) under the Packers & Stockyards Act of 1921 contained at 9 C.F.R. Part 201.
13. Inspection. Seller shall deliver within ninety-five percent (95%) of the above-stated number of Livestock, exclusive of any stages, crippled, blind, bad eyed, locoed, lump-jawed or otherwise unmerchantable livestock that are not as described above. If Buyer or Buyer’s agent is present at delivery and certain livestock are removed by the carrier, such action constitutes irrevocable acceptance of the remaining Livestock by Buyer. If Buyer is not present is not present at delivery, Buyer shall notify Broker of any grievance regarding any of the Livestock within twenty-four (24) hours after arrival of the Livestock. Buyer’s failure to provide Broker with a grievance notice within twenty-four (24) hours shall constitute irrevocable acceptance of the Livestock and bind Buyer to pay the price set forth in this Agreement. Upon Seller’s failure to deliver within ninety-five percent (95%), Seller shall be liable for replacing any Livestock not delivered with livestock of equal size, character, and quality, or to pay Buyer the difference between the price set forth in this Agreement and the prevailing market price on the number of Livestock not delivered, based on the average weight of those Livestock delivered and/or make the necessary freight adjustments to Buyer. Replacement of livestock, monetary adjustment, and/or freight adjustment shall be at the Seller’s expense and Buyer’s option and approval.
16. Marketable Title. Seller represents and warrants that it has good and marketable title to the Livestock. Seller represents and warrants that the Livestock will be delivered free on any security interest, lien, chattel mortgage, or other encumbrance creating a cloud on the buyer’s title to the Livestock. Seller agrees to defend title to the Livestock and indemnify and hold harmless Buyer from any and all loss or damage on account of any breach of the representations and warranties set for in this Paragraph 7.
17. Payment. Buyer shall pay to Broker in full, for the benefit of Seller, the price agreed to, subject to any adjustment which may be required pursuant to the Slide described, below (“Purchase Price”). Within seventy two (72) hours of Buyer’s execution of this Agreement, Buyer shall make payments by wire transfer or ACH to the account designated by Broker.
18. Slide. The following adjustment formula shall be applied to determine the Purchase Price at delivery when the Livestock has confirmed a final weight
19. Risk of Loss. The risk of loss of the Livestock, due to injury or death, passes to Buyer at the time the Livestock are loaded onto the carrier.
20. Security Agreement. By executing this Agreement, Buyer grants to Broker a security interest in the Livestock, including the products and proceeds therefrom, until such time as Broker has received full payment of the Purchase Price from Buyer. Buyer authorizes Broker to authenticate and file all documents that are needed to perfect and give notice of Broker’s interest in the Livestock.
21. Transfer of Title. Title to the Livestock shall not transfer to Buyer, even upon delivery, until Broker has received payment of the full Purchase Price from Buyer.
22. Default.
A. Default of Buyer shall exist if: i) the full Purchase Price is not received by Broker by the time Buyer takes possession of the Livestock; ii) upon insolvency, bankruptcy, or death of the Buyer; or iii) upon refusal of Buyer to take delivery of the Livestock for any reason not authorized under this Agreement. Upon Buyer’s default, Broker may, without prior notice to Buyer, exercise any and all rights afforded by law or this Agreement, including, but not limited to Broker’s option of replacing the Livestock on Buyer’s behalf in which case Seller shall be liable for any and all damages incurred, including the cost of replacing the Livestock on the prevailing market. In the event of default, for any reason, Seller shall be liable for actual and incidental damages permitted under the Uniform Commercial Code, including costs, an attorney’s fee, and any available equitable relief.
B. Default of Seller shall exist if Seller fails to deliver the Livestock for any reason except a Force Majure Event. Upon Seller’s default, Broker may, without prior notice to Seller, exercise any and all rights afforded by law or this Agreement, including, but not limited to forfeiture of the Deposit. In the event of default, for any reason, Seller shall be liable for actual and incidental damages permitted under the Uniform Commercial Code, including costs, an attorney’s fee, and any available equitable relief.
23. Force Majure. Neither Seller or Broker shall be liable to Buyer for any delay or failure of delivery of any or all of the Livestock under this Agreement when such delay or failure is the result of an act of God; by destruction in whole or in part of the Livestock; or in the event of disease that may occur in the Livestock after this Agreement was executed and prior to delivery (“Force Majure Event”). If Seller claims nonperformance of the terms of this Agreement are the result of a Force Majure Event, reasonable notice and documented proof of such Force Majure Event shall be given to Buyer and Broker. Broker may then evaluate Seller’s notice and proof and determine its sufficiency. If Broker accepts Seller’s claim of Force Majure, Broker will refund Buyer the Deposit and such refund shall constitute the only relief afforced to Buyer under this Agreement. Seller shall return to Broker any partial payment made to Seller buy Broker in connection with any Livestock not delivered.