* This document was prepared in good faith with legal advice obtained by the NSWTA to assist its members. However, as always it is just a guide and you should always seek your own advice.
THIS BUYING AGENCY AGREEMENT is dated of 2014
BETWEEN:
__________________________________________________________________
Print Name or Entity
__________________________________________________________________
Print Address
__________________________________________________________________
(hereinafter referred to as the “BYUER”)
and
__________________________________________________________________
Print Name or Entity
__________________________________________________________________
Print Address
__________________________________________________________________
(hereinafter referred to as the “AGENT”)
WHEREAS:
A. The Buyer wishes to purchase Bloodstock.
B. The Agent is skilled in training Bloodstock, and has certain knowledge in purchasing Bloodstock.
C. The Buyer wishes to engage the services of the Agent for the purposes of purchasing Bloodstock on the Buyer’s behalf, in accordance with the terms of this agreement.
D. “Allowable Expenses” means expenses that are reasonably necessary for the Agent to carry out his functions and obligations.
E. “Schedule” means the Reference Schedule included in this agreement.
F. A reference in this agreement to an “Item” is a reference to an Item within the Schedule.
G. “Special Condition” or “Special Conditions” means any further or additional condition that may be agreed to by the Parties and stated herein, which condition shall to the extent of any inconsistency, prevail over the terms and conditions set out herein.
REFERENCE SCHEDULE
1. TERM;
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eg. two calendar months from the date of this agreement
2. DEPOSIT:
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eg. $10,000.00 (ten thousand dollars)
3. MAXIMUM PURCHASE PRICE:
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eg. $100,000.00 (one hundred thousand dollars)
4. BUYER’S CRITERIA:
Age ——————————————————————————————————
Colour —————————————————————————————————–
Sex ——————————————————————————————————
Pregnancy Status —————————————————————————————-
Other Criteria
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5. PRE PURCHASE ENQUIRIES AND DUE DILIGENCE:
(a)
(b)
(c)
(d)
6. AGENT’S COMMISSION:
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eg. Ten percent (10%) of the Purchase Price or $10,000.00 (ten thousand dollars)
7. MAXIMUM EXPENSES
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eg, $2,000.00 (two thousand dollars)
8. ADDRESS FOR NOTICES ON THE BUYER
_______________________________________
_______________________________________
Fax No.
9. ADDRESS FOR NOTICES ON THE AGENT
_______________________________________
_______________________________________
Fax No.
TERMS:
1.0 Appointment
1.1 The Buyer hereby appoints the Agent as the Buyer’s agent, and the Agent hereby accepts the appointment as the Buyer’s Agent, for the purposes and upon the terms set out in this agreement.
1.2 The Agent is hereby authorised to purchase Bloodstock substantially meeting the Buyer’s Criteria as set out in Item 4 without further reference to or approval from the Agent.
2.0 Term
2.1 This agreement:
(a) shall be for a minimum term for the period set out in Item 1, unless otherwise agreed to in writing between the parties;
(b) shall expire at the end of the term referred to in Item 1, unless both parties agree in writing to extend the term.
(c) may be terminated at any time with the agreement of both Parties;
3.0 Instructions
3.1 The Buyer hereby authorises and directs the Agent to purchase on the Buyer’s behalf and at the account of the Buyer, Bloodstock as may be further particularised in Item 4.
3.2 All and any Bloodstock that are purchased by the Agent pursuant to this agreement shall have been purchased for and on the Buyer’s behalf and at the account of the Buyer.
3.3 The Agent may purchase Bloodstock in the Buyer’s name, however title in the Bloodstock shall vest in the Agent until such time as the Buyer has paid to the Agent all amounts due and payable by the Buyer to the Agent.
3.4 The Agent shall not without the Buyer’s prior written approval, purchase on the Buyer’s behalf any Bloodstock:
(a) that does not substantially meet the Buyer’s criteria as set out in Item 4; or
(b) at a price which is higher than the maximum purchase price indicated at Item 3; or
(c) where the pre purchase enquiries reveal a material adverse finding, or any issue that may reasonably be expected to prevent the Bloodstock from competitive racing.
3.5 At all times, the Agent shall use his best endeavours to purchase the Bloodstock at the lowest possible price and on the most favourable terms for the benefit of the Buyer.
4.0 Deposit
4.1 On the date of this agreement, the Buyer shall pay to the Agent a deposit in the amount set out in Item 2.
4.2 The Buyer’s deposit shall be held by the Agent at the Agent’s account, and shall not attract any interest.
4.3 The Agent is hereby authorised to make withdrawals or deductions from such deposit, to cover the agent’s Allowable Expenses.
5.0 Pre Purchase Due Diligence by the Agent
5.1 The agent shall use his or her best endeavours, knowledge and experience in the industry in assessing the worthiness of prospective Bloodstock offered for sale.
5.2 Prior to purchasing any Bloodstock, the Agent shall at the Buyer’s sole cost, cause or carry out the due diligence, procedures and enquiries set out in Item 5.
5.3 The Agent shall not without the Buyer’s prior written approval, purchase any Bloodstock where the due diligence, procedures and enquiries set out in Item 5 indicate a material adverse finding, or any issue that may reasonably be expected to prevent the Bloodstock from competitive racing.
6.0 Completion of the Purchase
6.1 Upon the purchase of the Bloodstock, the Buyer and the Agent shall do all acts and things that may reasonably be required to finalise or complete the purchase by paying the price and taking delivery for the Bloodstock.
6.2 Upon Completion of the Purchase the parties shall do all acts and things reasonably necessary to take delivery of the Bloodstock for the benefit of the Buyer. Notwithstanding such delivery of the Bloodstock to the Buyer, title of the Bloodstock shall vest, or remain in favour of the Agent until such time as the Buyer has paid to the Agent all amounts due and payable to the Agent by the Buyer.
6.3 The parties hereby expressly agree that at all times, the Buyer shall bear the onus of risk in the Bloodstock, and in this respect the Agent advises the Buyer to take appropriate insurance cover.
7.0 Payment of Balance of Purchase Price
7.1 The Agent must as soon as practicable after committing to purchase any Bloodstock, provide the Buyer with particulars of the purchase (confirming price etc), together with an account of expenses, and particulars as to the balance amount payable by the Buyer to Complete the Purchase.
7.2 The Buyer shall pay such balance and the Agent’s Commission within 7 days of such notice from the Agent, to the Agent or as the Agent otherwise directs. The Agent may direct that such amounts be paid to the Agent by way of direct deposit or electronic funds transfer.
7.3 The Agent may require that part of the said balance be paid to a third party such as the Vendor of the Bloodstock.
8.0 Agent’s Commission
8.1 The Agent shall be entitled to Commission at the rate or amount set out in Item 5.
8.2 The Agent shall be entitled to Commission from the Buyer if the Agent purchases Bloodstock on the Buyer’s behalf, or if the agent introduces the Buyer to any person or entity that within 6 months of the introduction sells any bloodstock or agrees to sell any bloodstock to the Buyer either directly or indirectly.
8.3 The Buyer shall pay the Agent’s Commission upon the Completion of the Purchase at the same time as the balance of the Purchase Price is payable.
8.4 The Agent’s Commission shall be payable in such manner or method as the Agent requires or directs.
8.5 The Agent’s Commission shall be payable by the Buyer upon demand by the Agent where the Agent has committed to a purchase but Completion of the Purchase has not been effected due to default by the Buyer.
8.6 The Agent may apply any part of the Deposit held by the Agent towards the Agent’s Commission and any outstanding Allowable Expenses upon Completion of the Purchase, and attribute any amount left over towards the balance of the purchase price payable by the Buyer. If the Deposit held by the Agent is insufficient to cover the Agent’s Commission and any outstanding Allowable Expenses, the Buyer must pay the shortfall upon Completion of the Purchase.
9.0 GST
9.1 All monetary amounts expressed in this agreement are unless indicated otherwise exclusive of GST. If the said amount attracts any GST, then such amount shall be increased by the applicable rate of GST, and shall be payable by the person or entity that is obliged to pay the original amount.
9.2 The Buyer agrees to pay GST in addition to all amounts expressed in this agreement as payable by the Buyer.
10.0 Expenses
10.1 The Agent is hereby authorised to incur expenses at the Buyer’s account, insofar as such expenses are reasonably necessary for the Agent to carry out his functions and obligations set out in this agreement.
10.2 The Agent’s allowable expenses shall include but are not limited to all costs associated with due diligence and pre purchase inquiries, insurance, transport etc.
10.3 The parties may agree that such expenses are paid in the first instance by the Buyer, however where the Agent first pays for such expenses the Buyer must reimburse the agent for such expenses within 7 days of receipt by the Buyer of an account from the Agent providing particulars of such expenses.
10.4 The Agent may pay such Expenses from the Buyer’s Deposit in the first instance.
10.5 Where the parties have agreed to limit or cap such expenses by stating a maximum cost of Allowable Expenses in Item 7, the Agent shall not be entitled to re-imbursement of any expense over that limit without the prior written approval of the Buyer.
11.0 Default
11.1 The Buyer shall be in default of a fundamental term of this agreement if:
(a) The Buyer does not pay any amount due and payable to the Agent or as the Agent directs;
(b) Delays, refuses, or otherwise fails to effect Completion of the Purchase as required;
(c) Delays, refuses, or otherwise fails to take delivery of the Bloodstock purchased by the Agent
12.0 Upon Termination
12.1 At the expiration or earlier termination of this agreement in accordance with the preceding paragraph, the agent shall:
(a) refund to the Buyer the balance of the Buyer’s deposit, after deduction from the deposit all costs and Allowable Expenses that are permissible by this agreement; and
(b) immidiately cease to represent the Buyer or to hold out to others that the Agent continues to be the Buyer’s Agent.
13.0 Warranties by the Agent
13.1 The Agent warrants that:
(a) The Agent shall not at any time engage in any conduct that may give rise to a conflict of interest;
(b) The Agent shall his or her best efforts, and all his or her knowledge, skills and experience to purchase Bloodstock that in the Agent’s opinion may be successful in competitive racing.
13.2 The Agent does NOT warrant that any Bloodstock that may be purchased by the Agent will ultimately prove successful in competitive racing.
14.0 Warranties By Buyer
14.1 The Buyer warrants that:
(a) The Buyer has the authority and capacity to enter into this agreement;
(b) The Buyer has sufficient funds to meet the Buyer’s obligations under this agreement;
(c) The Buyer has provided the Agent with full particulars of the Buyer’s requirements for the Bloodstock to be purchased; and
(d) The Buyer shall not circumvent the Agent by seeking to purchase any Bloodstock without the Agent’s knowledge, from persons or entities directly or indirectly introduced to the Buyer by the Agent.
15.0 Releases and Indemnities
15.1 The Buyer agrees and accepts that notwithstanding the Agent’s skills and experience, the future success or failure by any Bloodstock cannot be reasonably foreseen or guaranteed.
15.2 To the fullest extent permissible by law, the Buyer hereby releases, indemnifies, and agrees to keep indemnified and the Agent from and against all and any claims, demands, actions, or proceedings that may be made against the Agent by any person or entity including the Buyer:
(a) the ultimate success or failure in competitive racing by any Bloodstock purchased by the Agent acting in good faith in accordance with the provisions of this agreement;
(b) in respect of any acts or omissions by the Agent made in good faith by the Agent in fulfilling the Agent’s obligations under this agreement;
(c) in respect of any default by the Buyer in performing or fulfilling the Buyer’s obligations under this agreement.
16.0 Assurances
16.1 Each of the Parties shall do all acts and things that may reasonably be required to finalise, or to give effect to this agreement, and to fulfill their respective obligations as set out in this agreement.
17.0 Whole Agreeement
17.1 The parties agree that this agreement:
(a) contains the entire agreement between the parties and no earlier representation or agreement, whether oral or in writing, in relation to any matter dealt with in this agreement will have any effect from the date of this agreement; and
(b) will not be changed in any way except with the written agreement of the parties.
18.0 Notices
18.1 The address for Notices for the Buyer is set out in Item 8.
18.2 The address for Notices for the Agent is set out in Item 9.
18.3 Any Notice given by one party to the other shall be deemed as served on the other Party if delivered to the address indicated as that Party’s address for service.
18.4 The Parties may agree to receive service via facsimile by stating their facsimile number herein.
19.0 Governing law and interpretation
19.1 This agreement shall be governed by and construed in accordance with the law for the time being in force in New South Wales, and the parties, by entering into this agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.
20. SPECIAL CONDITIONS
List here any special conditions which shall to the extent of any inconsistency, prevail all terms and conditions stated above.
IN WITNESS WHEREOF the parties have executed this agreement the day and year first above written.
Signed in my presence by the AGENT )
who is personally known to me )
_________________________________
Signature of AGENT
________________________________
Signature of Witness
________________________________
Address of Witness
________________________________
Signed in my presence by the BUYER )
who is personally known to me )
________________________________
Signature of BUYER
________________________________
Signature of Witness
________________________________
Address of Witness
________________________________
Signed sealed and Delivered by )
)
(BUYER) pursuant to Section 127 of the )
Corporations Act: )
_____________________________ _____________________________
Signature Signature
_____________________________ _____________________________
Print Name Print Name
_____________________________ _____________________________
Office Held Office Held
Suggested Special Conditions
Dispute Resolution procedure
Inquiries
Buyer takes full risk
Disclosures
If nothing good is found agent not liable
Quantum meruit
Liquidated damages for late payment
Notice to Complete
Forfeiture
Sell Bloodstock upon default
