This document signifies an agreement (“Agreement”) between you and Fusion Foundry, LLC d/b/a DustUp (“Fusion”, “DustUp”, the “Platform” or the “Company”) and describes your rights to use the platform, website, and associated services. In order to buy, sell, or bid on livestock, you must agree with and accept all of the terms of this Agreement; indeed, use of the Platform implies acceptance of the provisions summarized herein.
1. Fusion provides an app-based livestock marketing platform with a web services admin panel. The Company’s services include, but are not limited to, providing a democratized auction platform for livestock producers, access to an enhanced payment gateway for clearing functions, the ability to schedule freight and logistics, and the capability to collect asset-level animal data for dissemination. These attributes provide a summary the services of the Platform (“Services”).
2. DustUp reserves the right to reject any and all bids and/or auctions, and the decisions of the Company to reject a bid or an auction shall be deemed final.
3. You acknowledge and agree that by placing a bid on livestock, you represent and warrant that you shall not misrepresent your ability to close the transaction pursuant to the terms and conditions of sale, that you have the capacity to close the transaction, and that you have actual authority to enter a bid. Similarly, you acknowledge and agree that by selling livestock or accepting a bid for livestock, you are representing and warranting that you shall not misrepresent your ability to close the transaction pursuant to the terms and conditions of sale, that you have the capacity to close the transaction, and that you have actual authority to enter into a transaction.
4. Fees. A fee of 1.5% on the total transaction value of each auction will be charged to all sellers who use the platform; however, the Company reserves the right to modify its fee structure on a case-by-case basis.
5. Settlement. Settlement is between a buyer and a seller following industry prompt payment rules.
6. Fusion’s services are available only to, and may be used only by, persons who are able to enter into legally binding contracts. If you are an individual, you must be at least 18 years of age. If you are registering as a business, you represent that you have the authority to bind that entity to this Agreement.
7. Disclaimer of Warranties. You understand that use of the services and any purchase of livestock is at your own risk and that Fusion does not guarantee the accuracy or timeliness of information available from the Services.
Accordingly, Fusion makes no warranties, express or implied, guarantees or conditions with respect to your use of the Services or livestock offerings, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, quality or safety of the livestock, or the truth or accuracy of any offerings.
Furthermore, the Company does not warrant the harvest date on source or age verified livestock and cannot guarantee back verification on any program requiring signed affidavits or third party verification. It is the buyer’s responsibility to verify all claims of the seller to fit specific programs prior to purchase. There are no implied warranties of merchantability or fitness for a particular purpose on any livestock sold. Additionally, health entry requirements for the state of entry are the responsibility of the buyer. The seller will furnish any health certificates required for the state of origin and Federal Law. If additional health certificates, documentation or tests are required for shipment to the buyer’s destination, it shall be at the buyer’s request and expense.
You acknowledge that computers, hand held devices, and telecommunications equipment are not fault-free and have occasional periods of downtime. The Company does not guarantee the Services will be uninterrupted, timely, or error-free or that an unaccepted or losing Internet bid will not occur.
8. Limitation of Liability. To the extent permitted by applicable law, you agree to not hold Fusion responsible for any damages or losses resulting directly or indirectly from:
9. Severability. If any provision of this Agreement is deemed to be invalid or unenforceable, such provision shall be stricken and the remaining provisions shall be interpreted in such a way as to carry out the intent of the parties to the greatest extent possible.
10. Indemnification. Users of the DustUp platform agree that the Company will not be liable for any act or omission performed or omitted except for acts or omissions arising out of gross negligence or willful misconduct, and that the Company will indemnify each director, officer, employee, and agent of the Company for any liability suffered by them arising out of their activities in connection with the Company, except for liabilities resulting from gross negligence or willful misconduct.
11. Termination of Use. Fusion may, at its sole discretion, refuse to accept a person's or entity's registration, and may, at any time after accepting registration, may terminate or refuse to permit a person's or entity's continuing use of the Services and the website for any reason without notice.
12. You may be able to access third-party websites or services via the Services. Fusion is not responsible for third-party websites, services, content, or material available through those third-party services. You are solely responsible for your use of third-party websites or services.
13. You are responsible for your user profile, ID, and passwords. If you allow someone else access to use your user profile and ID and they use it to bid on livestock and are the highest bid accepted by the seller, then you are responsible for completing the transaction and paying for the livestock. Therefore, it is highly recommended that you keep your user profile, ID and password secret and allow no one else to use it. If you are logged in with your user profile and ID and it is used to bid by you or someone else, then you will be responsible for payment of those livestock.
14. Amendments and Changes to Agreement. At any time, Fusion may change or amend any or all of these terms. Any changes or amendments will be reflected on the website. Your use of the services after the date the change becomes effective will be your consent to the changed terms. If you do not agree to the changes, you must stop using the Services; otherwise, the new terms will apply to you.
15. No Third-Party Beneficiaries. This Agreement is solely for your benefit as well as the benefit of the Company. It is not for the benefit of any other person or entity, except for Fusion’s owners, successors and/or assigns.
16. While the logistics scheduling feature is available on DustUp, the buyer is responsible for all arrangements and regulatory requirements with respect to the transportation of the livestock, and the buyer is responsible for sending trucks to adequately load the number of head and/or the total weight contracted in order to legally transport them to their final destination.
17. Jurisdiction and Disputes. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas, without regard to conflict of choice of laws principles.
18. Arbitration. Use of the DustUp platform hereby binds the user into understanding that the parties to disputes regarding the Company or Services outlined herein may submit such disputes to binding arbitration before the American Arbitration Association or Judicial Arbitration and Mediation Services in Dallas, Texas.
19. Integration. This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. Further, this Agreement shall take precedence over any other documents that may be in conflict therewith.