Herd Share Agreement
This Herd Share Agreement (“Agreement”) is made this _____ day of ________________, 20____, by and between MOUNTAINEER MISFITS DAIRY AND RESCUE LLC, a West Virginia limited liability company (“Farm”), and ______________________________ ________________________ (“Buyer”).
WHEREAS, Buyer desires to enter into an agreement with Farm under which Buyer will own a proportional share of the dairy animals in Farm’s herd in order for Buyer to receive a proportional share of the raw milk produced by those animals; and
WHEREAS, Farm desires to sell a portion of its dairy animal herd to Buyer while continuing to provide boarding, care, and management for all animals on Buyer’s behalf.
NOW, THEREFORE, the parties agree as follows:
1. Sale of Herd Shares. Farm agrees to sell to Buyer and Buyer agrees to purchase from Farm _____ share(s) of the dairy animal herd maintained by Farm for the 20___ season, for the sale price of _________ Dollars ($________) per share payable in full upon Buyer signing this Agreement (“Purchase Price”).
2. Definition of a Share. Each herd share shall consist of the ownership for one (1) season of a one and one-half percent (1.5%) undivided interest in the total dairy animal herd maintained by Farm during that season. For these purposes, a season begins on ____________ and ends on ____________ of each calendar year.
3. Care and Boarding of Animals. Buyer agrees to pay Farm ________ Dollars ($______) per share per month during the season, payable on or before the first business day of each month, for the care and boarding of the animals in Farm’s dairy animal herd (“Boarding Fee”). Buyer agrees that if Buyer’s monthly Boarding Fee is not received by the fifth business day of the month, Farm may assess a late fee of Ten Dollars ($10.00) per share.
4. Raw Milk Distribution.
a. Quantity. Buyer is entitled to receive one (1) gallon of raw milk from Farm’s dairy animal herd per week per share. Buyer must pick up Buyer’s share of the raw milk on the days and times specified by Farm. Farm may change the day and time for raw milk pickup by Buyer with fourteen (14) days’ written notice to Buyer.
b. Suspension of Distribution. If Buyer is in arrears with any portion of Buyer’s Boarding Fee required under Section 3 or any special assessment required under Section 20 (including any grace period), Farm may withhold raw milk distributions to Buyer until Buyer pays all past-due Boarding Fees and special assessments, and may terminate Buyer’s Shares if Buyer fails to pay all past-due Boarding Fees and special assessments upon fourteen days’ written notice. Upon any such termination, the past due Boarding Fee required under Section 3 or any special assessment required under Section 20 shall continue to be due, the Purchase Price will not be refunded and no further Boarding Fee under Section 3 or any special assessment under Section 20 will be assessed against Buyer.
5. Prohibition on Distribution and Resale of Raw Milk. Buyer acknowledges that it is unlawful in the State of West Virginia for Buyer to sell or distribute raw milk. Buyer further acknowledges that Buyer will receive raw milk from Farm under this agreement only because Buyer has purchased a share of Farm’s dairy animal herd. Buyer agrees not to sell or distribute any portion of the raw milk provided by Farm pursuant to this Agreement.
6. Authority for Care and Management of Animals. Buyer’s purchase of a herd share under this Agreement does not entitle Buyer to exercise any right or authority over the care and management of the dairy animals in Farm’s dairy herd. Farm maintains the exclusive right to make any and all decisions related to the care and management of all animals in Farm’s dairy animal herd, including, but not limited to, veterinary care, breeding, euthanasia, sale, and replacement of animals.
7. Nontransferable Nature of Shares. Shares purchased under this Agreement are non-transferable and may not be sold or assigned without the prior written consent of Farm.
8. Right of Repurchase. Farm shall have the right at any time during the season, for any reason or for no reason, to repurchase Buyer’s share(s) from Buyer and terminate this Agreement upon fourteen days’ written notice to Buyer and repayment to Buyer of a pro rata amount of the Purchase Price paid by Buyer, and of a pro rata amount of the Jar Fee paid by Buyer. The pro rata amount shall be a fraction the numerator of which is the number of days during the season prior to the effective date of the termination, and the denominator of which is the total number of days during the season.
9. Containers. At the beginning of the season, Farm will supply half gallon size containers to Buyer which Buyer will use to receive from Farm Buyer’s share of raw milk produced (“Jar” or “Jars”). Buyer shall pay Farm a Jar fee in full upon Buyer signing this Agreement equal to Fifteen Dollars ($15.00) per share for the use of four (4) Jars per share each month (“Jar Fee”). Buyer agrees to use the Jars only for the purposes of receiving, transporting and holding Buyer’s share of the raw milk, and agrees to not use the Jars for any other purpose including but not limited to fermenting or culturing. Buyer shall thoroughly clean and dry the Jars between uses and must return the Jars for refill in the condition in which the Buyer would like to receive Buyer’s share of the raw milk. Farm shall not be responsible for cleaning or drying the Jars during the season. At the end of the season, the Buyer shall return the Jars to Farm thoroughly cleaned and dried. Buyer agrees to pay a replacement fee of Five Dollars ($5.00) per Jar for all Jars that are broken while in Buyer’s possession or not returned to Farm within thirty (30) days after the end of the season.
10. Indemnification and Release from Liability. Buyer acknowledges that consuming raw milk carries certain inherent risks and hereby agrees to assume any and all such risks. Buyer hereby releases Farm from any and all liability for the inherent dangers of consuming raw milk, but not for those dangers that are caused by negligent acts or omissions of Farm. Buyer hereby agrees to release Farm from any and all liability to the fullest extent permissible under applicable law. Buyer further agrees to indemnify Farm for any and all liabilities, including reasonable attorneys’ fees, incurred by Farm as a result of Buyer’s consumption of raw milk received from Farm under this Agreement.
11. Duty to Report Illness. Buyer and Farm mutually acknowledge their responsibilities under W. Va. Code § 19-1-7(d) to report any illness directly related to consuming raw milk to the local health department and the West Virginia Commissioner of Agriculture as soon as practicable.
12. Contact Information for Required Notices. Any and all required notices and other correspondence to Buyer and Farm shall be delivered to the following:
If to Farm: Mountaineer Misfits Dairy and Rescue LLC
Attn: Rebecca L. Edgar
649 Willingham Road
Charles Town, West Virginia 25414
If to Buyer: _________________________________ (full name)
Telephone: ( ) __________________
13. Statutory Health Acknowledgment.
Buyer hereby acknowledges the inherent dangers of consuming raw milk that may contain bacteria, such as Brucella, Campylobacter, Listeria, Salmonella, and E. Coli, that has not been pasteurized to remove bacteria and that is particularly dangerous to children, pregnant women and those with compromised immunity.
____________________________________ (Buyer’s Signature)
14. Governing Law. Any and all disputes arising out of or in connection with this Agreement or with Buyer’s consumption of raw milk received from Farm will be decided under the laws of the State of West Virginia.
15. Jurisdiction and Venue. Buyer and Farm acknowledge that the exclusive forum for adjudication of any and all disputes arising out of or in connection with this Agreement shall be the Circuit Court of Jefferson County, West Virginia. Buyer and Farm agree to submit to venue and jurisdiction by the Circuit Court of Jefferson County for resolution of such disputes.
16. Severability. If, for any reason, any provision or provisions of this Agreement are determined to be invalid or contrary to any existing or future law, such invalidity shall not impair the operation of or affect those remaining portions of this Agreement.
17. Compliance with Future Changes to Applicable Law. Buyer and Farm mutually acknowledge that future changes to state or federal law may alter the rights or obligations of Buyer and Farm under this Agreement, and mutually agree to take any and all actions to remain in compliance with applicable law following any such change.
18. Entire Agreement. This Agreement constitutes the entire agreement among the parties and may not be modified or amended except in writing by an instrument signed by both parties.
19. Force Majeure. Notwithstanding anything to the contrary, neither Buyer nor Farm shall be responsible for any delay or failure of its performance under this Agreement if such delay or failure is caused by any matter beyond the control of either party, including, but not limited to, government regulations, public emergency or necessity, legal restrictions, labor disputes and actions related thereto, riot, war or insurrection, windstorms, floods, snowstorms, or other acts of God.
20. Special Assessments. Buyer acknowledges that maintaining the health and welfare of Farm’s dairy animal herd is critically important to preservation of Buyer’s health and safety. Buyer agrees to pay any and all special assessments imposed by Farm to cover the costs of any unexpected health or safety-related issue with animals in Farm’s dairy animal herd, provided that no such special assessment may exceed Fifty Dollars ($50.00) per share.
21. Filing with Commissioner of Agriculture. The parties hereto acknowledge and agree that Farm must file this Agreement with the West Virginia Commissioner of Agriculture, and consent to such filing.
22. Farm Requirements. Farm shall meet the animal health requirements for milk-producing animals established by the state veterinarian in accordance with state and national standards including the following: (a) raw milk from milk-producing animals intended for consumption shall be from a herd that tested negative within the previous twelve months for brucellosis, tuberculosis and other diseases as required by the state veterinarian, and additions to the herd shall test negative for the diseases within the previous thirty days before introduction into the herd; and (b) milk-producing animals producing bloody, stringy or abnormal milk, but with only slight inflammation of the udder, shall be excluded from the milking herd until reexamination shows that the milk has become normal, and milk-producing animals showing chronic mastitis, whether producing abnormal milk or not, shall be permanently excluded from the milking herd.
Witness the following signatures:
MOUNTAINEER MISFITS DAIRY AND RESCUE LLC
Rebecca L. Edgar, Member