CMS Livestock Auction

Video Auction Terms of Service Agreement

1. Participation in any auction held by CMS Livestock Auction (hereinafter referred to as “CMSLA”) shall constitute agreement with the following terms and conditions. Every Buyer contract incorporates the terms and conditions set out herein. 

2. Each bidder must be registered and be preapproved for the auction by CMSLA with a bank contact and a verifiable line of credit. CMSLA reserves the right to contact lender and/or bank contact for bank verification. CMSLA reserves the right to limit participation in any auction based on credit and/or borrowing capacity of any individual buyer. 

3. CMSLA reserves the right to withhold participation of any buyer or seller in any auction without cause. 

4. Any dispute that arises during an auction shall be decided by the Auctioneer and the clerk. In the event of a dispute, CMSLA reserves the right to reopen a lot for bidding in order to resolve the dispute. The auctioneer also reserves the right to reject any bids without cause.

5. All sale day announcements made shall supersede any printed information. CMSLA has made every effort to ensure that any information found on our online catalog or printed listing is correct, but any announcements made from the auction block shall supersede any printed material, or any material that is found online.

6. By registering, the Buyer consents to receive communication from CMS Livestock Auction (CMSLA) via email, text message, or phone call. CMSLA reserves the right to contact Buyers using these methods for purposes related to auction participation, contract fulfillment, payment reminders, delivery coordination, or other necessary communication related to the sale. Standard messaging and data rates may apply.

7. Sellers reserve the right to decline the highest bid offered at auction. If a seller elects to Pass Out (PO) a lot, the highest bidders will be notified after the sale. 

Seller reserves the right to PO any lot at a fee of $2.00/hd payable to CMS Livestock Auction. In the event Seller POs a lot, that PO fee shall be refunded upon relisting that lot or another lot of cattle with the same head count at a later date. 

8. All lots will be sold FOB the delivery point. All transportation arrangements and regulatory requirements associated with the movement of livestock from the delivery point shall be the responsibility of the Buyer. Any risk due to trucking accidents or issues that occur en route from the delivery point to Buyer are at Buyer’s risk. 

9. The buyer will be sent a contract through Docusign which must be signed and returned to CMSLA as soon as possible after the auction, but in no event more than three business days after the auction. Electronic signatures and contracts executed via DocuSign or similar electronic platforms shall be deemed valid and enforceable.

10. Slides: Terms of slide for each lot will be listed on Lot Sale Description. 

Slide Definitions: 

1. Dairy Slide- (Base Weight x Head Count x Base Price) If average weight is over the slide, additional weight is charged at the price per pound of the slide. If the average weight is under the base weight, the difference in the total base weight is subtracted from the actual weight and discounted by the price per pound of the slide.
   1. Weight Stop on a Dairy Slide:

If a weight stop is listed on a Dairy Slide it shall be an up slide stop only.  If  the average pay weight is above the base weight plus the stop wt combined, the base lbs shall be paid at the selling price of the lot and any slide lbs above the base weight shall be paid at the slide price up the stop weight.  (IE, If a lot has a base weight of 400# at $2.00 with an 80 cent slide and a 50# stop and the average pay weight is 460#), The animals shall be priced as follows: (base lbs 400# * $2.00 = $800 per head plus 50# max slide wt at .80=$40 and 10# would be free, net paid would be $840.00/hd)   Any lbs above the stop shall be free. If no stop is listed on the Lot Description, all slide lbs shall be paid in full at the slide price.  No STOP shall be enforced to the downside on a Dairy Slide.

2. Traditional Slide- The price per pound is adjusted by multiplying the variance between the base weight and the average pay weight by the price of the slide. That price adjustment is then discounted or added to the original price and the final price is multiplied by the pay weight. 
   1. Weight Stop on a Traditional Slide: 

If  a weight stop is listed on the Lot Description, and the average pay weight is above the weight stop, Buyer and Seller agree that the maximum Pay weight shall be the head count X the Weight Stop and any lbs above this total weight shall be forfeited by the seller and all slides shall cease the stop weight as if the Pay Weight was the stop weight. (IE, Cattle are sold at $2.00 at 400# with an 8 cent traditional slide and a 35# stops), Cattle upon delivery weigh 450#.  The base price shall be adjusted at 35lbs X-.08=$-2.80/cwt and the cattle max weight shall be 435#, so cattle would be paid at 435# X (200.00-2.80)=$197.20 net/cwt of $857.82 per head. The 15lbs of weight above the stop shall be free.

On cattle with an average weight below the listed stop weight to the downside, the price shall stop being decreased at the stop weight although the Pay Weight shall be the calculated pay weight on the cattle after shrink if applicable regardless of whether it was below the stop weight. (IE, Cattle are sold at $2.00 at 400# with an 8 cent traditional slide and a 35# stops), Cattle upon delivery weigh 410#.  The base price shall be adjusted for 35 lbs only (35X.08=$2.80/Cwt plus the original price ($200.00 +2.80= $202.80 net price/cwt X pay weight of 410# net of $831.48 per head.

11. CMSLA shall submit for approval all third party programs to the verifying third party program submitted by the seller and do all in its power to verify the validity of any claim made by seller (IE NHTC, Natural, BeefCare, etc.), but does not guarantee validity of any third party programs listed. The Buyer is responsible for validating claims of third party programs through the Seller prior to purchase.  In the event the buyer wants third party verification programs to be submitted upon shipping of the cattle, buyers are required to notify CMSLA of their desire to obtain such documentation within 24 hours of the purchase to allow time for the verification steps on individual animals to be initiated prior to shipping.

12. All genetic, breed, beef on dairy crossbreeding, and performance information presented in CMSLA auctions is provided solely by the Seller. CMSLA does not verify or guarantee the accuracy of any such claims and makes no warranties—express or implied—regarding the genetic makeup, breed composition, performance data, or classification of any livestock. The Buyer acknowledges that CMSLA markets and represents cattle based solely on information supplied by the Seller.

In the event the Buyer believes the cattle do not match the genetic, breed, or type representations provided, any resulting claims, disputes, or remedies shall be directed solely to the Seller. Under no circumstance shall CMSLA be held liable for such disputes, nor shall the Buyer be entitled to any compensation or remedy from CMSLA, including but not limited to refund, replacement, or market value differences.

The Seller agrees to fully indemnify and defend CMSLA against any claims, disputes, or liabilities arising from or related to the accuracy of genetic, breed, or performance representations of the livestock.

13. CMSLA tries to use video of the actual cattle selling. In some cases, CMSLA may use previously recorded video of similar cattle for representation purposes. While we aim to provide accurate and fair representation, the video shown is not guaranteed to be the exact cattle selling. Buyers agree that the use of representative footage will not be grounds for dispute or adjustment after the sale.

14. Title and Ownership: 
    1. Seller warrants clear title to all cattle sold, and further warrants that the identity of all owners of an interest in the cattle offered for sale, and the identity of their secured lenders, have been disclosed to CMSLA. Seller guarantees each animal is healthy and shall be delivered as described in the lot offering. 

2. Title and Ownership of cattle shall not pass to the Buyer until CMSLA has been paid in full. Any dispute on health, quality, or any other attributes of the transaction of the cattle must be addressed within 24 hours of delivery or such claims shall be waived. If the Buyer does not notify CMSLA of any concerns within 24 hours of receiving the livestock, it will be considered full and final acceptance of the cattle, and the Buyer will be obligated to pay the full contract price.

3. Buyer acknowledges that any attempt to transfer ownership, sell, or encumber any interest in cattle prior to CMSLA receiving full payment from Buyer shall be null and void. Buyer furthermore, agrees and acknowledges that title to the cattle shall not pass to Buyer, nor shall the cattle be pledged, encumbered, or used as collateral for any loan or financing arrangement, until Buyer has remitted full payment for the cattle.

15. Delivery dates are at Seller’s option within the delivery period, but Seller agrees to work with CMSLA and Buyer to make delivery dates work for both parties as much as possible. 

16. All health papers and testing of animals to get said health papers, as well as brand inspection papers that are required to deliver cattle sold to Buyer’s ultimate destination shall be at Seller’s expense regardless of what state or requirements that state may have for entry of cattle, including but not limited to TB testing of heifers. 

17. Buyer will be required to pay to CMSLA a part payment of $30/head on all cattle with a delivery period more than 30 days later than the auction date. Part payments will be credited back to Buyer on final settlement at delivery of cattle. Part payments do not satisfy Buyer’s responsibility to CMSLA or Seller in the case of default of contract. It shall not be considered a part payment. 

This part payment shall in no way give option, release, or default privileges to the Buyer due to market changes prior to delivery, changes to the market environment for certain classes of cattle,including but not limited to: pandemic, quarantine, or any other reason. It is a binding contract and shall be treated as such. This part payment is considered a partial payment and in no way satisfies Buyer’s responsibilities to Seller in the event of a market decline prior to delivery, or limits any rights CMSLA retains in the event that Buyer defaults on any livestock contract. 

18. In the event of Buyer defaults on the contract, Buyer shall be liable to Seller for any decline in market value of those cattle prior to delivery and ultimate resale by seller, as well as any and all necessary expenses to resell the cattle, as well as reasonable attorney’s fees required to enforce the contract and recover the full contract price. 

19. In the event of Seller default on the contract, Seller shall be liable to Buyer for any increase in market value of cattle which is required to replace the cattle with similar and acceptable replacement cattle, as well as all reasonable attorney’s fees and other costs reasonably required to enforce the contract or acquire replacement cattle, except for an event deemed as an Act of God. 
    1. The Seller shall be considered in default of this Contract if it fails to deliver any of the Cattle sold hereunder for any reason other than those expressly excused in Section 24 (Act of God Clause) or otherwise beyond the reasonable control of CMSLA and/or the Seller, including but not limited to war, government regulations and/or orders, domestic terrorism, epidemic, pandemic, quarantine (expressly including, but not limited to, Screwworm or Highly Pathogenic Avian Influenza), natural disasters, strikes, civil disorder, or curtailment of transportation.

2. Upon learning of any such inability to perform, the Seller shall promptly provide written notice to CMSLA identifying the cause of non-performance. In the event such excuse is accepted by CMSLA pursuant to Section 24, CMSLA shall refund to Buyer any part payment related to the undelivered Cattle, which refund shall fully satisfy any and all liability of CMSLA and the Third-Party Seller with respect to such undelivered Cattle. Buyer shall have no further rights or remedies against CMSLA and/or the Seller regarding that non-performance.

3. Except for excused non-performance as set forth in Section 19 and Section 24, if the Seller fails to deliver any portion of the Cattle in accordance with the Contract and industry standards, the Seller shall be liable to the Buyer for:
   1. replacing any missing livestock with Cattle of substantially the same type, weight, quantity, condition, and quality; or 
   2. at Buyer’s sole election, paying Buyer the positive difference, if any, between the Contract price and the prevailing market price applicable to the number of Cattle not delivered.

4. The Seller shall be responsible for any increase in market value associated with such failure to deliver. Satisfaction of either remedy above shall constitute full performance by the Seller of its obligations with respect to the undelivered Cattle.

20. Cattle payments must be made by either wire transfer the day following delivery of cattle or by overnight carrier at Buyer’s expense. Payments if sent overnight shall be sent to: 

CMS Livestock Auction 

6900 I-40 West, Suite 135 

Amarillo, TX 79106. 

21. Wire instructions will be provided to the Buyer at billing. Seller warrants to Buyer, CMSLA, and CMS Orita Calf Auction, LLC that the cattle will be delivered to Buyer free and clear of all liens, claims and encumbrances, and agrees to defend title to the cattle and indemnify and hold CMSLA, CMS Orita Calf Auction, LLC, and the Buyer harmless from any and all loss due to any liens or other title defects that are not satisfied. CMSLA will however, work with both parties to find an applicable solution should such a dispute arise. 

22. Both Buyer and Seller acknowledge and accept that any disputes or enforcement of rights resulting from a breach of these Terms are strictly matters between the two parties. CMSLA shall bear no responsibility or liability in such situations, and both parties agree not to hold CMSLA accountable for any resulting claims or actions.

23. In the event of multiple day shipments on a multi load contract, each shipment shall be paid for in full as it is delivered (within 24 hours of delivery to Buyer).

If a lot is specifically designated in the listing as “Multiple Day Shipment to be Reconciled as One Transaction”, CMSLA reserves the right to treat and reconcile the completed contract as though all cattle were delivered at one time. This reconciliation shall apply solely for the purposes of calculating any applicable weight slides, stops, or similar contract provisions. Such reconciliation will occur only after the entire contract has been fulfilled.

24. Act of God Clause: If Seller experiences an “Act of God'' and cannot deliver cattle due to catastrophic weather conditions, an act of war, or disease that causes destruction in whole or part of the livestock, or disease occurs that prohibits movement or performance of contract by Seller, neither Seller nor CMSLA shall be liable for delay in delivery in whole in part of the contracted cattle. In the case of such an incident, Seller must provide sufficient proof of said event to CMSLA and CMSLA shall evaluate said circumstances and determine if an Act of God occurred. In the event an Act of God has occurred, CMSLA shall refund all part payments to Buyer, and Seller and CMSLA shall have no further liability to Buyer for nonperformance of contract. On each contract, Buyer grants to CMSLA a purchase money security interest in the cattle purchased in order to secure full payment and collection of the purchase price of the cattle. 

25. Communications Consent (Email & SMS): By registering for, participating in, or otherwise engaging with any auction, event, or service offered by CMS Livestock Auction (“CMSLA”), you expressly consent to receive communications from CMSLA via email and/or SMS text message at the contact information you provide. By providing your mobile phone number, you represent that you are the authorized user of the number and consent to receive automated and non-automated text messages from CMS Livestock Auction related to auction operations and announcements.

• These communications may include, but are not limited to:
• Auction announcements, reminders, and upcoming sale dates
• Registration confirmations and bidder notifications
• Lot information, updates, and auction results
• Operational, transactional, and service-related notices

Consent to receive these communications is not a condition of purchase. You may opt out at any time by:

• Clicking the “unsubscribe” link included in any email communication,
• Replying STOP to any SMS text message, or
• Contacting CMSLA directly at info@cmslivestock.com or (806) 355-7505.

Message and data rates may apply to SMS communications. Opt-out requests will be honored promptly, and you will no longer receive the applicable category of communications after opting out.

These terms and conditions are governed and construed under Texas law. 

There are no warranties expressed or implied other than what is specifically expressed in these terms and conditions, and in the contracts of Buyer.

If for any reason any part of this contract is deemed unlawful or unenforceable, it shall not negate or affect the validity of any other part of this contract. 

All disputes between Buyer and Seller, or between Buyer or Seller with CMSLA or CMS Orita, regarding the contract or contracted cattle, will be arbitrated with the Texas Cattle Feeders Association, under its Rules of Arbitration. Arbitration shall take place in the State of Texas unless otherwise agreed in writing.