This BUYER PARTICIPATION AGREEMENT (this “Agreement”), dated as of {effectiveDate} (the “Effective Date”), is made by and between Stockmans Choice Auction LLC, a Texas limited liability company (the “Company”), and {q2_fullname0} (“Buyer”). The Company and Buyer are sometimes individually referred to in this Agreement as a “Party” and collectively as the “Parties”.
W I T N E S S E T H:
WHEREAS, the Company is facilitating an auction of livestock pursuant to which the Buyer wishes to participate in and purchase livestock pursuant to, and in connection therewith, the Company will provide certain Services (as defined below) to the Buyer after the Effective Date, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. AUCTION SERVICES.
A. Services. Subject to the terms and conditions of this Agreement, beginning on the Effective Date and continuing until this Agreement has been terminated in accordance with the terms and conditions hereof, the Company will act as the Buyer’s agent in any auctions organized by the Company in order to facilitate, negotiate, and consummate purchases of livestock from sellers in the auctions to the Buyer (the “Services”), all subject to the terms and provisions of this Agreement.
B. Third Party Providers. Each Party acknowledges (on behalf of itself and its respective Affiliates) that the Company may provide the applicable Services directly, (x) through any of its Affiliates or (y) through one or more third parties engaged by the Company to provide Services (each such third party, a “Third Party Provider”); provided that the Company shall be liable for performance of Services and compliance with the terms of this Agreement by any such Affiliate or Third Party Provider.
C. Excluded Services. Except as otherwise expressly set forth in this Agreement, the Services shall in no event include, and this Agreement shall not require the Company or its Affiliates to provide or cause to be provided, services that involve or relate to (i) the provision of legal, compliance, regulatory or tax advice; (ii) the filing of tax returns; or (iii) the reporting of any taxes or filing or delivery of any information or reporting statements related to taxes.
2. AUCTION TERMS & CONDITIONS; INVOICING & PAYMENTS.
A. Auction Format. Each auction hosted by the Company (each, an “Auction”) shall be hosted live with options for the Buyer to participate in person, via telephone, or online.
B. Bidding Process.
I. Methods of Bidding.
Bids may be placed in three ways:
• Online through LiveAuctions.tv
• In Person at the designated sale location
• By Phone using the official sale day number of (979) 353-1053
II. Authority of the Auctioneer.
From the moment the auctioneer opens the bidding until the word "SOLD" is declared, the auctioneer has complete and final authority over the conduct of the sale.
III. Tie Bids.
In the event of a tie bid, the auctioneer has the sole authority to reopen bidding between the two bidders involved. Only those two bidders will be eligible to continue bidding on that lot.
IV. Discrepancies.
In the event of a discrepancy in bidding - whether on the sale floor, by phone, or via the internet - the auctioneer reserves the right to reopen or restart the bidding on the lot in question.
V. Finality of Sale.
All cattle are considered sold at the fall of the auctioneer's gavel. At that time, the purchaser has 48 hours to provide full payment. Cattle will not be released for pickup until funds have been received and cleared.
C. Winning Bid. Once a bid is placed, if it is a winning bid, the Company will inform the Buyer and provide an invoice to the Buyer, upon which the Buyer must pay the Company the purchase price in full in cash in immediately available funds no later than forty-eight (48) hours after delivery of such invoice to the account designated in the wire instructions provided by the Company to the Buyer and held in the trust account as described below. Any delay in payment by the Buyer shall be deemed an immediate default under this Agreement, upon with the Company shall have the remedies set forth in Section 3(d) below. Once the Company notifies the Buyer that the livestock have been released by the applicable seller at the direction of the Company, the Buyer agrees that it will, at its sole cost and expense, go pickup the livestock within a period of 15 days following the date of the sale. If there are any disputes between the Buyer and applicable seller at the time of the pickup of the livestock, including as a result of such livestock no longer being merchantable for any reason, Buyer agrees to submit such dispute to the Company in order for the Company to facilitate a suitable settlement between the parties. Once Buyer removes the livestock from the applicable seller’s premises, the Buyer shall be deemed to have irrevocably accepted all such livestock “AS IS WHERE IS”.
D. Remedies. Notwithstanding anything to the contrary contained in this Agreement, in the event the Buyer fails to make payment when due hereunder as set forth above or fails to perform any obligation of Buyer set forth in this Agreement, including timely picking up the livestock purchased, the Company shall have any and all of the following rights and remedies: (i) to charge a late fee of 15% per annum until the date Buyer makes such payment in full, together with all such late fees, (ii) to terminate this Agreement, (iii) to foreclose on the Cattle purchased by Buyer for which Buyer has not timely remitted payment to the Company for, upon which Buyer shall have no further rights to any of such Cattle, and/or (iv) not permit the Buyer to participate in any future auctions hosted by the Company until such overdue payment (and any applicable late payment fees or charges accrued with respect thereto) is paid in full. Exercise of any such one right and not another shall not in any manner limit or prejudice any of the Company’s other rights or remedies in the event of Buyer’s failure to make payments when due hereunder.
3. TRUST ACCOUNT.
A. Establishment of Trust Account. The Company shall establish and maintain a trust account for the purpose of holding funds received from the Buyer in connection with the cattle auction. This account shall be maintained at a reputable financial institution and shall be separate from the Company’s operating accounts. Funds held in the trust account shall be used exclusively for the purposes related to the Auction, including but not limited to payment to sellers, auction fees, and any other agreed-upon expenses. The Broker shall not use these funds for any other purpose without the express written consent of the Buyer.
B. Management and Disbursement. The Broker shall manage the trust account in accordance with applicable laws and regulations. Disbursement of funds shall occur only upon completion of the auction and fulfillment of all conditions precedent, as outlined in the auction terms. The Company shall provide the Buyer with a detailed accounting of all transactions related to the trust account upon request.
C. Liability and Indemnification. The Company shall not be liable for any loss of funds due to bank insolvency or other circumstances beyond the Company’s control. The Buyer agrees to indemnify and hold harmless the Company from any claims arising from the management of the trust account, except in cases of the Company’s willful misconduct.
4. TERM.
This Agreement shall be effective for a period of one (1) year, and shall automatically renew for successive one (1) year periods, unless terminated by the Buyer upon thirty (30) days’ notice to the Company, provided that it has not already confirmed its participation in any Auction, or terminated by the Company immediately in connection with any default by the Buyer under this Agreement or terminated by the Company upon five (5) days’ notice to the Buyer for any reason.
In the event of termination of this Agreement in its entirety pursuant to this Section 4, or upon the expiration of the term of this Agreement, this Agreement shall cease to have further force or effect, and neither Party nor any of its Affiliates shall have any obligation or liability to the other Party with respect to this Agreement; provided, however, that (i) the termination or expiration of this Agreement for any reason shall not release a Party or from any obligation or liability that already has accrued as of the effective date of such termination or expiration, as applicable, or which may arise out of or in connection with such termination or expiration and (ii) this Section 4 (Term), Section 5 (Limitation of Liability; Indemnification), Section 7 (Security Interest Grant), and Section 8 (Miscellaneous) shall survive any termination or expiration of this Agreement and shall remain in full force and effect.
5. LIMITATION OF LIABILITY; INDEMNIFICATION.
A. Limitation of Liability. The Company and its Affiliates shall not have liability to Buyer related to (x) the provision of Services except to the extent such Services were provided in breach of this Agreement or (y) any breach of or inaccuracy in any representation or warranty provided by the seller of the applicable livestock in connection with any sale to Buyer in any Auction.
B. Indemnification. Buyer agrees to indemnify, and hold harmless each of the Company and its Affiliates, officers, managers, directors, employees, agents and representatives (the “Indemnified Parties”) from and against all liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages paid, suffered or incurred by the Indemnified Parties for any claims in connection with the performance of the Services by the Company or its Affiliates (each claim referred to herein, a “Claim”), other than liabilities, obligations or damages resulting from willful misconduct by the Company.
C. DISCLAIMER. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER ARE BEING PROVIDED ON AN “AS IS”, “WHERE IS” AND “WITH ALL FAULTS” BASIS WITHOUT ANY GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (ORAL OR WRITTEN), INCLUDING AS TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND COMPANY AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL SUCH GUARANTEES OR WARRANTIES HEREUNDER WITH RESPECT TO THE ENTIRE SUBJECT MATTER OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT BUYER ASSUMES ALL RISKS AND LIABILITIES ARISING FROM OR RELATING TO ITS USE OF AND RELIANCE UPON THE SERVICES AND THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT THERETO.
D. WAIVER OF CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL ANY PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY NATURE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE AND WHETHER OR NOT ARISING FROM SUCH PARTY’S OR ANY OF ITS RESPECTIVE AFFILIATES’ SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST OPPORTUNITIES, PROFITS OR REVENUES OR DAMAGES BASED UPON ANY MULTIPLE, EXCEPT ANY INDEMNIFIABLE AMOUNTS AWARDED TO A THIRD PARTY IN CONNECTION WITH A CLAIM.
E. ACKNOWLEDGEMENT. THE PARTIES AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY AND THE OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES WOULD NOT BE ABLE OR WILLING TO PROVIDE OR ACCEPT THE SERVICES WITHOUT THE PROTECTIONS PROVIDED TO SUCH PARTIES AND THEIR RESPECTIVE AFFILIATES PURSUANT TO SUCH PROVISIONS.
6. FORCE MAJEURE.
The Company shall not be in default of its obligations under this Agreement for any delays or failure in performance resulting from any cause, event or circumstance beyond the Company’s reasonable control.
7. SECURITY INTEREST GRANT.
Buyer hereby grants to the Company a security interest in all of livestock purchased by Buyer at any Auction, including but not limited to cattle, sheep, goats, pigs, horses, and any other animals, and all proceeds thereof (collectively, the "Collateral"), until payment in full of the purchase price to the Company pursuant to this Agreement.
8. MISCELLANEOUS.
A. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH ANY MATTER WHICH IS THE SUBJECT OF THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
B. Assignment; Successors in Interest. This Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, directly or indirectly, including by operation of Law, by any Party without the prior written consent of the other Parties.
C. Notices and Invoices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be given by any of the following methods: (i) personal delivery; (ii) registered or certified mail, postage prepaid, return receipt requested; (iii) overnight mail; or (iv) email transmission, unless a “bounceback” or “undeliverable” message has been received by the sender. Notices shall be sent to the appropriate Party at its address given below (or at such other address for such Party as shall be specified by notice given hereunder):
If to Buyer, to:
{q2_fullname0}
{address}
Email: {q3_email1}
If to the Company, to:
Stockmans Choice Auction LLC
PO Box 231, Schulenburg, Texas 78956
Attention: Steve Dees
Email: office@stockmanschoiceauction.com
with a copy (which shall not constitute notice) to:
Troutman Pepper Locke LLP
600 Travis Street, 28th Floor, Houston, Texas 77002
Attention: Allison Pearce
Email: allison.pearce@troutman.com
D. Any of the above addresses may be changed at any time by notice given as provided above; provided, however, that any such notice of change of address shall be effective only upon receipt. All notices, requests or instructions given in accordance herewith shall be deemed received on (A) the date of receipt if hand delivered, (B) on the date of receipt if transmitted by facsimile, (C) the date indicated for receipt on the return receipt, if mailed by registered or certified mail, (D) the date of receipt specified by the carrier, if sent by Federal Express or other recognized overnight courier and (E) on the date of delivery to the email address of the recipient if transmitted by email prior to 5:00 p.m. Eastern time on a Business Day of the recipient, and on the next Business Day if transmitted by email after 5:00 p.m. Eastern time of the recipient, in each case provided the computer record indicates a full and successful transmission and no failure message is generated.
E. Governing Law. This Agreement, and all claims or causes of action (whether at Law, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the internal Laws of the State of Texas applicable to agreements made and to be performed entirely within the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Texas.
F. Consent to Jurisdiction. Each Party hereby irrevocably agrees that any claims or causes of action (whether at Law, in contract, in tort or otherwise) shall be brought only in the exclusive jurisdiction of the courts of the State of Texas or the federal courts located in the State of Texas, and each Party hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such legal disputes and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such legal disputes in any such court or that any such legal dispute that is brought in any such court has been brought in an inconvenient forum.
G. Amendment; Modification. This Agreement may be amended, modified or supplemented at any time only by written agreement of each of the Parties.
H. Waiver. Any agreement on the part of a Party to any extension or waiver of any provision of this Agreement shall be valid only if set forth in an instrument in writing signed on behalf of such Party. A waiver by a Party of the performance of any covenant, agreement, obligation, condition, representation or warranty shall not be construed as a waiver of any other covenant, agreement, obligation, condition, representation or warranty. A waiver by any Party of the performance of any act will not constitute a waiver of the performance of any other act or an identical act required to be performed at a later time.
I. No Third Party Beneficiaries. This Agreement is exclusively for the benefit of the Company, and its successors and permitted assigns, with respect to the obligations of Buyer under this Agreement, and for the benefit of Buyer, and its respective successors and permitted assigns, with respect to the obligations of the Company, under this Agreement, and this Agreement shall not be deemed to confer upon or give to any other third party any remedy, claim, liability, reimbursement, cause of action or other right; provided, that Section 5 shall be intended for the benefit of all Indemnified Parties thereunder.
J. Time of Essence. With regard to all dates and time periods set forth in this Agreement, time is of the essence.
K. Entire Agreement. This Agreement and the other documents delivered pursuant to this Agreement constitute the entire agreement among the Parties with respect to the subject matter of this Agreement and supersede all other prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter of this Agreement.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date set forth below.
COMPANY:
STOCKMANS CHOICE AUCTION LLC
Name: Steve Dees
Title: Manager