In consideration for the Services, Company agrees to pay Gold Buckle the following amounts (collectively, the “Fee”):
- 3% Credit card processing fee
- 1% Bank transfer
- 2% Buyer Premium on all winning bids
This Services Agreement (the “Agreement”) is entered into effective as of the last date listed on the signature page of this Agreement (the “Effective Date”), by and between Gold Buckle Horse Sale, LLC, a Utah limited liability company (“Gold Buckle”), and the entity listed on the signature page of this Agreement (the “Company”). Each are sometimes referred to hereinafter, individually as a “Party,” and collectively, as the “Parties”.
WHEREAS, Company desires to engage Gold Buckle to provide the services, as more fully described herein (the “Services”); and
WHEREAS, Gold Buckle agrees to perform the Services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1.1The Services. Gold Buckle agrees to provide Company with the Services. Company agrees that Gold Buckle is responsible only for providing the Services, and Gold Buckle is not responsible for providing any services or performing any tasks not specifically set forth in Exhibit A.
1.2Alteration of Services. The Parties may modify the Services set forth in this Agreement to include or delete Services, provided that any change to the Services is agreed to in writing by the parties. Gold Buckle shall have no obligation to perform Services in connection with any change to the scope of Services until the parties have agreed upon the effect of such change in the applicable fees.
2.TERM AND TERMINATION
2.1Term. This Agreement shall be effective upon the Effective Date and shall remain in effect for term of the event listed on Exhibit A of this Agreement (the “Event”).
2.2Termination. Either Party may terminate this Agreement within thirty (30) days of written notice for any reason or no reason at all.
2.3Termination of Service. Upon termination of this Agreement for any reason, all access to the Services shall terminate.
3.COMPENSATION; PAYMENT TERMS
3.1Fee. In consideration for the Services to be rendered by Gold Buckle, Company shall pay to Gold Buckle an amount equal to amount listed on Exhibit A (the “Fee”). Such Fee must be paid within five (5) business days at the conclusion of the Event.
4.1Confidentiality. Subject to the other terms and conditions of this Agreement, as a result of this Agreement and the ongoing relationship of the parties, each of the parties may have access to or acquire knowledge of confidential and proprietary information concerning the other and the other’s business (the “Confidential Information”), and each agrees to treat the Confidential Information as confidential. All Confidential Information shall remain solely the property of the disclosing party, and the recipient shall maintain and protect the confidentiality of such Confidential Information with the same degree of care used to protect its own confidential information, but in any event, no less than a reasonable degree of care. Each of the parties agrees not to utilize another’s Confidential Information for any purpose other than the performance of this Agreement. Each of the parties understands, acknowledges and agrees that a breach of this Section would cause the non-breaching party irreparable damage, for which the award of damages would be inadequate compensation. Accordingly, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive.
4.2Privacy. The names, addresses and other information generated by Company’s use of the Services, together with information regarding the manner in which Company uses the Services, will not be disclosed by Gold Buckle except as necessary to carry out the terms and conditions of this Agreement or (a) to comply with law or comply with legal process served upon Gold Buckle, (b) to protect and defend Gold Buckle’s rights or property or those of Gold Buckle’s customers, clients, vendors, and third party providers, (c) to protect the personal safety of Gold Buckle’s users or the public, or (d) if in Gold Buckle’s sole discretion, Gold Buckle believes that it is necessary to disclose any such information in order to avoid exposure to civil or criminal liability or public ridicule, or to avoid damage to Gold Buckle’s business or reputation.
Title to any software, hardware, or equipment now owned by Gold Buckle and/or its third party providers and used in providing the Services remains exclusively owned by Gold Buckle and/or its third party providers and is not transferred to Company.
6.1Limited Warranty. Except as otherwise set forth in this Agreement, Gold Buckle warrants that it shall provide the Services in a professional manner. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 6.1, THE SERVICES ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.2Limitation of Liability. IN NO EVENT SHALL GOLD BUCKLE BE LIABLE TO COMPANY OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. Company’s exclusive remedy for breach by Gold Buckle of its limited warranty shall be to discontinue the Services and receive an immediate pro-rated refund of any fees paid for the term from the time of discontinuation of Services. Company agrees that Gold Buckle’s liability hereunder for any type of damages whatsoever, regardless of the form of action, shall not exceed the aggregate dollar amount paid by Company to Gold Buckle in the twelve (12) months prior to the claimed injury or damage.
6.3Company Indemnification. Company will defend, indemnify and hold Gold Buckle, its affiliates, employees, officers, agents, licensors and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of Company’s violation of its obligations under this Agreement, or the negligent or willful acts of Company, or violation of any third party intellectual property or privacy rights. Company shall not indemnify or be liable for any actions taken by Gold Buckle’s employees, independent contractors, or other related affiliates providing Services to the Company. Company’s obligation to indemnity under this provision shall survive termination of this Agreement.
6.4Gold Buckle Indemnification. Gold Buckle will defend, indemnify and hold Company, its affiliates, employees, officers, agents, licensors and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of Gold Buckle’s violation of its obligations under this Agreement, or the negligent or willful acts of Gold Buckle, its employees, or agents, or violation of any third party intellectual property or privacy rights. Gold Buckle shall not indemnify or be liable for any alleged medical malpractice or similar lawsuits against Company. Gold Buckle’s obligation to indemnity under this provision shall survive termination of this Agreement.
7.1Notice. Any notice required or permitted to be given hereunder shall be in writing and will be effective (i) three (3) business days after deposit in the U.S. Mail, certified, return receipt requested, postage prepaid or (ii) one (1) business day after deposit with a reputable express next day courier providing written receipt of delivery and addressed to the parties at their respective addresses as first written in this Agreement.
7.2Independent Contractors. Each party is an independent contractor and the parties shall not have the authority to bind, represent or commit the other. Nothing in this Agreement shall be deemed or construed to create joint venture, partnership or agency relationship between the parties.
7.3Entire Agreement. This Agreement and the attached Exhibits constitute the entire agreement between Gold Buckle and Company with respect to the subject matter hereof. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties to this Agreement.
7.4Governing Law; Venue. This Agreement will be governed and construed under the laws of the State of Utah without regard to conflict of laws provisions or the United Nations Convention on the International Sale of Goods. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the State of Utah.
7.5Waiver/Severability. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
7.6Force Majeure. Except for the payment of fees by Company, if the performance of any part of this Agreement is prevented, hindered, delayed or otherwise made impracticable by reason of any cause or event not within the reasonable control of such party and without its fault or negligence, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
7.7Assignment and Transfer. Company may not assign, without the prior written consent of Gold Buckle, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part.
7.8Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
Gold Buckle agrees to provide the following Services:
- General consultation regarding using an online bidding platform and its interaction with the Company’s typical sales process;
- An online bidding service wherein qualified bidders may view and bid on horses for sale at the Event;
- Onsite agent from Gold Buckle throughout the entire Event;
- Display a market catalog with consignor videos and details on each horse at the Event;
- Preregister online bidders with pre-authorized credit cards on all bids;
- Live streaming during preview of sale and actual sale with audible announcers and audio from onsite auctioneer; and
- Final report of all winning bids post sale, including any applicable data on winning bidders.