Terms & Conditions
Last Modified: February 3, 2023
These terms and conditions (the “Terms and Conditions”) apply to any and all auctions of horses, fractional interests in horses, stallion seasons, and other bloodstock interests (each, a “Horse”) conducted through any website owned, managed or operated by Host or any of its affiliates, including but not limited to equiring.com, starquine.com, and horseco.com (collectively, the “Site”) operated by HorseCo, Inc., a Delaware corporation (the “Host”). All sellers, bidders, consignors, and purchasers shall be automatically bound by these Terms and Conditions as a result of participating in any auction hosted by the Host (each, an “Auction”).
- “AAEP” means American Association of Equine Practitioners.
- “Agent” means any trainer, consignor, bloodstock agent, racing or stud manager or other person or entity who represents a Principal in an Auction, directly or indirectly, whether the Agent is unpaid or paid by way of retainer, commission or other forms of remuneration, or has ongoing financial arrangements such as training, management or similar fees.
- “Announcement Conditions” means the following conditions of a horse: (a) any horse that is either a cribber, or (b) any horse that is sold in this sale after July 1 of his yearling year and is a cryptorchid (ridgling), a bilateral cryptorchid, or a gelding. A cryptorchid (ridgling) is defined as a colt which does not have both testes palpable in the entirety below the external inguinal ring, and includes a colt that has had one testicle removed. A bilateral cryptorchid is defined as a colt which does not have any testes palpable in the entirety below the external inguinal ring. A gelding is a horse that has had both testes surgically removed.
- “Bidder” means any bidder or purchaser.
- “Bloodstock Interest” means any fractional or other interest(s) in a horse for sale, including, as the context may require, fractional interests, shares, seasons, breeding rights or other form of economic interest or contractual rights.
- “Broodmare Surgery” means, with respect to any broodmare, either (i) a caesarean section delivering a fetus, (ii) a surgery involving the cervix, (iii) an urethral extension, or (iv) the removal of an ovary.
- “Consignor” means a person or entity acting as agent for a Seller at an Auction.
- “Encumbrance” means any charge, claim, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, right of first refusal, lease, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership contained in any syndicate agreement, breeding or other contract governing the management of the horse that has the effect of restricting or otherwise impairing the sale or transfer of the horse or bloodstock interest as contemplated by these Terms and Conditions.
- “Horse in Training” means a horse of racing age (which excludes all broodmares, broodmare prospects, stallions and stallion prospects that are not to be raced) which at the time of sale, shall have been in a training program for not less than ninety (90) consecutive days prior to sale.
- “Negative Certificate” Purchaser’s veterinary certificate containing the opinion of Purchaser’s veterinarian describing in detail the specific information that causes the Repository information with respect to a Horse not to be accurate, valid or authentic in all material respects and materially misleading regarding the condition of the Horse.
- “Participant” means all Consignors, Principals, Purchasers, Sellers, Bidders, owners, and all other interested parties.
- “Principal” means a person or entity who appoints an Agent to act as agent on his behalf in an Auction.
- “Prohibited Practices” means (i) Shockwave therapy or radial pulse wave therapy in any form within seven (7) days of the sale; (ii) acupuncture and/or electro-stimulation with the intent of altering laryngeal function within seven (7) days of the sale; (iii) electrical devices designed or used to increase the speed of a horse within fourteen (14) days of the sale; (iv) any invasive practice which intentionally conceals a material defect or chronic lameness; and (v) internal blister or other injections to the knee intended to have the effect of concealing the true conformation of the horse.
- “Purchaser” means a person or entity who buys a Horse in an Auction.
- “Racing Prospects” means any horses which are not being sold for breeding purposes only and which are being shipped immediately out of state (and thus in interstate commerce).
- “Repository” means a repository collected by the Host where Consignors may place information applicable to Horses.
- “Seller” means a person or entity who sells a Horse in an Auction.
- “Two-Year Old in Training” means a two-year-old which at the time of sale shall have been in a training program for not less than ninety (90) consecutive days prior to sale.
- “Veterinary Conditions” means the following conditions of a horse: all horses that (i) possess any deviation from the norm in the eyes; (ii) are a “wobbler” (defined as a horse which suffers from a neurological disease caused by compression of the spinal cord and resulting in lack of balance and coordination) and/or have undergone any corrective surgery related thereto; (iii) are two years of age or less and have undergone (a) invasive joint surgery, or (b) surgical intervention of the upper respiratory tract; (iv) have undergone abdominal surgery of any type that occurred in the last two calendar years preceding the day of sale and any resection of an abdominal organ (partial or complete) at any time except to repair a ruptured bladder in a newborn foal; or (v) have been nerved.
- Consignors and/or Sellers shall disclose accurate ownership of each Horse. Any change in ownership of a Horse prior to the time a Horse is sold at auction shall be disclosed in writing by Consignor and/or Seller to Host. In the event that a change in ownership occurs within two days of a sale, such change shall be announced by the Host prior to the sale of the Horse. The party disclosing ownership information warrants that the information is materially accurate.
- Unless otherwise disclosed by Consignor and/or Seller, in the catalogue, the sale of any horse in a sale conducted by the Host shall include the intellectual property rights attributable to the name or likeness of such horse and title to such intellectual property rights shall pass to the Purchaser pursuant to Section 15. Each Seller represents and warrants that it owns good and marketable title in and to any Horse it offers for sale at Auction, free and clear of any and all Encumbrances (including but not limited to any right of first refusal related to such Horse.
3. Catalogue; Announcements
Horses catalogued in this sale are offered with information as represented by Owner or Consignor, including the Owner’s warranty that the Horse being offered for sale will be identified as the one catalogued and can be verified as such. The accuracy of such information, including but not limited to any information placed in the Repository, is the responsibility of Owner and Consignor, who have a duty to examine the catalogue page for accuracy. The Host has no responsibility for the accuracy of any such information. While certain information may have been procured by the Host from third parties on behalf of Seller or Consignor, it remains solely the responsibility of Seller and Consignor to verify the accuracy of such information and to notify the Host of any corrections. Notices of corrections must be delivered in writing to the Host not less than 30 minutes prior to sale. The Host has the sole discretion as to whether to make any such announcements if received after such deadline, or to scratch the lot from the sale. IN CASE OF ANY ERROR, INACCURACY OR OMISSION, PURCHASER AGREES TO SEEK REDRESS ONLY FROM SELLER OR CONSIGNOR AND NOT FROM THE HOST. Purchaser shall have no remedy as against THE HOST arising out of any such inaccuracy or mis-description of such lot in the catalogue. WITHOUT LIMITING THE FOREGOING, In the event THE HOST is nevertheless required to refund the purchase price to Purchaser, CONSIGNOR SHALL REFUND SAID PURCHASE PRICE TO HOST, IF SUCH PURCHASE PRICE HAS BEEN PAID BY THE HOST TO CONSIGNOR.
4. Condition of Horse.
- All prospective Bidders and Purchasers shall inspect fully and/or conduct a veterinary examination of each lot in which they may be interested before bidding. All Sellers or Consignors shall make any Horse available for inspection and veterinary examination by potential Bidders/Purchasers and the Host on reasonable terms of availability with regard to time, location, and access. Bidders or Purchasers that fail or refuse to inspect or conduct a veterinary examination for any reason, including a lack of opportunity for inspection, purchase the lot at their own risk. All prospective Bidders and Purchasers further acknowledge that if the presale exam is insufficient as determined in the sole discretion of the prospective Bidder or Purchaser, such prospective Bidder or Purchaser shall not bid on the lot. Each Bidder and/or Purchaser accepts any lot purchased with any and all faults, including all conditions and defects, except for applicable limited warranties set forth expressly in these Terms and Conditions. In all other respects the AS IS nature of any sale conducted on the Site remains in full force and effect.
- Bidders and Purchasers are deemed to have inspected and reviewed any information placed in the Repository related to a Horse, including but not limited to any radiographs placed in the Repository. All Bidders and Purchasers acknowledge that (i) any veterinary radiographic report which purports to describe or summarize what is reflected in the radiographs of a horse may contain and/or be based upon subjective determinations; and (ii) such written reports are not a substitute for or the equivalent of a review of the actual radiographs. Host is not responsible for examining or warranting any listing, content, or information provided by Sellers and/or Consignors and Bidders and Purchasers hereby release Host Parties from any and all liability related to any inaccuracies.
- Any Announcement Conditions must be disclosed and so announced at the time of sale. Any Veterinary Conditions must be disclosed by placing a veterinary certificate in the Repository.
- Horses in this sale may have been subject to surgery(ies) designed to affect permanent changes in physical makeup, including, but not limited to, transphyseal bridge, periosteal transsection, manipulation and elevation (each, a “Surgery”). Nondisclosure of any such Surgery shall not be grounds for Rejection (as defined herein) of sale. Should a Purchaser deem this information material, Purchaser should request from Consignor whether such Surgery has or have been performed and Consignor shall be obligated to respond truthfully to his or her best knowledge, information and belief.
- Host may, in its sole discretion, mandate that certain information related to a Horse be placed into the Repository for any sale. In such event, Consignor shall deposit in the Repository all of the information required by Host. Consignor warrants the accuracy, validity and authenticity in all material respects of the Repository information placed by Consignor in the Repository, whether such information was placed in the Repository at Consignor’s option or whether such information was required to be placed in the Repository by the Host. In the event it should be determined that Consignor has placed views in the Repository that are not authentic and valid, and/or information in the Repository that is not accurate, valid or authentic in all material respects and which is deemed to be materially misleading regarding the condition of the horse, then the sale is subject to Rejection at the option of the Purchaser only upon complying with the time requirements and process set forth herein. Time is of the essence.
- The Host will not review the Repository information and makes no warranty or assurance of any kind concerning the authenticity, sufficiency, quality, completeness or accuracy of the Repository information, all of which shall be the responsibility of the Consignor. Knowledge of the Repository information therefore shall not be imputed to the Host. Bidders and Purchasers hereby release Host Parties from any and all liability related to any inaccuracy or insufficiency of the Repository information.
- Purchasers will be charged with knowledge of any defect that is or should be revealed by a reasonable inspection, including any defect that is or should be revealed by a review of the Repository information. The presence or use of the Repository shall not change any of these Terms and Conditions, which shall continue to be binding upon all parties, nor does it create any additional express or implied warranties.
- Consignor for himself and all Sellers and others interested in any Horse being sold agrees and acknowledges that Host has the right, in its sole discretion, to conduct drug tests upon any horse entered by Consignor in this sale and Consignor hereby gives Host’s representative(s) access to the horse necessary to obtain samples (including, without limitation, urine, blood, hair or other samples) for testing as said representative(s) deems appropriate, in his sole discretion. Host shall have the sole discretion as to when and from which horse said random samples shall be collected, the selection of the methodology of the testing as well as the classifications of drugs to be tested and shall further have the sole discretion as to the selection of the veterinarian(s), laboratory(ies) and other expert(s) who will conduct the testing and interpret the results.
- No more than one non-steroidal anti-inflammatory drugs (“NSAIDs”) shall be administered at or below the manufacturer’s recommended dosage to a horse within 24 hours prior to the beginning of the session in which the horse is to be sold. Notwithstanding the foregoing, no NSAID shall be administered within 24 hours prior to an under tack performance or sale of a Two-Year-Old in Training or Horse in Training.
- No more than one systemic corticosteroid shall be administered at or below the manufacturer’s recommended dosage within 24 hours prior to the sale of a horse. Notwithstanding the foregoing, no corticosteroid shall be administered within 72 hours prior to an under tack performance or sale of a Two-Year-Old in Training or Horse in Training.
- No intra-articular injections shall be administered within 14 days prior to the sale of a horse.
- No medication or substance which is prohibited under the rules of racing as adopted in any jurisdiction where any Horse is racing or has been raced shall be administered at any time. The detection of a detectable concentration of any such prohibited substance in a post-sale sample of blood, urine, hair or any combination of blood, urine or hair in a Two-Year-Old in Training or Horse in Training shall constitute a violation of this rule.
- No bronchodilator (including without limitation Clenbuterol) shall be administered to a to a weanling, yearling, two-year-old and horse of racing age (which excludes all broodmares, broodmare prospects, stallions and stallion prospects that are not to be raced) shall be administered within 90 days prior to the sale of a horse. Notwithstanding the foregoing, in the event any bronchodilator (including without limitation Clenbuterol) is administered to a horse prior to July 1 of a horse’s yearling year for valid, on-label purposes, the same shall be disclosed in the Repository with a note of explanation from the treating veterinarian. In the event said veterinary disclosure is made and purchaser (itself or through its agent) accessed the Repository after such disclosure had been made, Purchaser shall not have the right of Rejection in the event of a Positive Test (as defined herein) for the presence of a bronchodilator (including without limitation Clenbuterol) pursuant to this Section 6.
- Consignor warrants that any weanling, yearling, two-year-old and horse of racing age (which excludes all broodmares, broodmare prospects, stallions and stallion prospects that are not to be raced) entered in this sale shall not have been administered at any time any anabolic androgenic steroids (“AS”) or any broncholidator, NSAID, systemic corticosteroid, or intra-articular injection in violation of this Section 6 of these Terms and Conditions. Consignor further warrants that any horse under four years old entered in the sale shall not have been administered at any time any bisphosphonate. AS, bisphosphonate, and the administration of a bronchodilator, NSAID, systemic corticosteroid, or intra-articular injection in violation of this Section 6 of these Terms and Conditions shall be referenced in this Section 6 as “Medication”.
- In order for Purchaser to avail itself of either limited warranty, Purchaser must check the appropriate box on the Acknowledgment of Purchase for the horse at the time of sale directing Host to have a blood, urine and/or hair sample taken. Purchaser agrees to pay Host’s direct costs and administrative expenses in regard to testing the blood, urine and/or hair sample. Host will then arrange for a blood, urine and/or hair sample to be taken by a veterinarian selected by Host prior to the horse leaving the grounds where the horse was located when sold, which sample shall be sent to a laboratory selected by Host for testing for Medication, as noted on the Acknowledgement of Purchase. Consignor hereby consents to a blood, urine or hair sample being taken. Should the post-sale test reveal the presence of Medication at such level as is deemed by the testing laboratory to show that Medication has/have entered the system of the horse at any time prior to the sale of the horse in violation of these Terms and Conditions (a “Positive Test”), Purchaser shall have the right of Rejection, which right must be exercised by Purchaser giving notice to Host in writing within 24 hours of Purchaser’s receipt of the results indicating a Positive Test. In the event Purchaser elects Rejection, Consignor shall refund any sales proceeds paid to Consignor by Host and pay Purchaser and Host all proper expenses and legal fees incurred by either of them, including interest thereon at the rate of 12% per annum, from the time of sale until the return of the horse to the Consignor. Proper expenses include, but are not limited to, such items as the testing fee per test, veterinarian charges, vanning, insurance and boarding. Purchaser shall be required to exercise due care during the Rejection period in maintaining and boarding the horse. In the event of a Positive Test, risk of loss shall remain with Purchaser from the close of the sale of the horse until Consignor has been notified of Purchaser’s election of Rejection, at which time risk of loss passes back to the prior owner, notwithstanding any other provision of these Terms and Conditions. Further, Purchaser shall not cause the horse to be materially altered during the Rejection period. Host will give notice of the results of such tests to Consignor and Purchaser as soon as practicable after receipt of the results from the testing laboratory which is anticipated to be within 10 days from date of sale. No other testing by Purchaser shall be allowed to support any claim by Purchaser concerning the presence of Medication in violation of these Terms and Conditions. In addition, neither Purchaser nor Consignor shall have the right nor shall Host have any obligation to conduct testing of a split sample. Host’s decision concerning whether there is a Positive Test, as long as same is supported by the testing laboratory selected by Host, shall, absent fraud or bad faith, be fully binding upon Consignor, Purchaser and all other interested parties. In the event that any party challenges Host’s exercise of discretion, such party shall be liable for all of Host’s reasonable expenses, including, without limitation, its attorneys’ fees incurred in defending the challenge, unless fraud or bad faith on the part of Host is finally determined by a court of competent jurisdiction from which no further appeal can or will be taken.
7. Provisions Related to Broodmares
- Any contractual agreements between Seller or owners of broodmares in a sale conducted by the Host and owners of stallions to which these mares have been bred do not follow the broodmares unless so announced at the time of sale. The possible right or option to return to any stallion or possible refund of any stud fee does not follow the broodmare unless so announced at the time of sale.
- For each broodmare in this sale, Consignor shall provide a veterinary certificate in conformity with standards established by the AAEP showing such broodmare to be either (1) pregnant, in the opinion of the examining veterinarian, based on appropriate examination within 10 days prior to the date of sale, or (2) not pregnant, but suitable for mating in the opinion of the examining veterinarian based upon appropriate examination within 10 days prior to the date of sale.
- Within 24 hours after the broodmare is purchased and before the broodmare is removed from the grounds where it was located when sold, Purchaser may have such broodmare examined by a veterinarian. In the event the Purchaser’s veterinarian finds the broodmare not to be as certified pursuant to Section 7(a) and if Consignor’s veterinarian disagrees with Purchaser’s veterinarian as to the broodmare’s condition, Purchaser shall notify Host and Host will appoint a third veterinarian to arbitrate the parties’ dispute (the “Third Party Veterinarian”). The certificate of Third Party Veterinarian shall be final, binding and conclusive upon Consignor, Purchaser and all other parties absent fraud or bad faith. Seller, Consignor and Purchaser acknowledge that having Host appoint the Third Party Veterinarian is fair and reasonable to each of them.
- If the broodmare is found to be not as certified pursuant to Section 7(a), pursuant to the above procedures, the Purchaser may elect Rejection and the broodmare may be returned to the Consignor as unsold. If she is found to be pregnant, when sold as not pregnant, the Purchaser may, as stated above, elect Rejection or may accept the sale, but in that event should the Purchaser choose to register the resulting foal with The Jockey Club, the Purchaser shall pay the applicable stud fee, plus any applicable sales tax, prior to having any rights to the Stallion Service Certificate relating to the resulting foal. If she is found to be as certified pursuant to Section 7(a), pursuant to the above procedures, the Purchaser shall be required to complete the purchase. In all of the above events, the Consignor shall be liable for the commission to Host as if sold.
- Consignors who have actual knowledge that a broodmare has, within the two years prior to the sale, undergone a Broodmare Surgery must disclose such Broodmare Surgery by placing a veterinary certificate in the Repository. In the event any Broodmare Surgery is not disclosed by Consignor pursuant to this Section 7(e), such purchase will be subject to Rejection and return to Consignor with refund of purchase price, and all proper expenses, fees and interest as provided in Section 5, provided that Host is so notified in writing by a veterinary certificate of such condition. Such Rejection shall be within 14 days from the day of sale. Purchaser shall have the same rights and duties regarding Rejection as provided in the right of Rejection section found in Section 5.
- For purposes of this Section 7, Host has adopted the following terms and standards recommended by the AAEP:
- Pregnant. Any filly or mare shall be characterized as “pregnant” if a practitioner has examined such animal for pregnancy at 42 days or more post mating during the applicable year and such examination indicated that such filly or mare was pregnant. Any report based on an examination at less than 42 days post mating should indicate the pregnancy status of the animal as well as the number of days post mating that the examination was performed. Accordingly, a report from a positive pregnancy exam at 42 or more days post mating indicates the filly or mare is “pregnant” without further comment. The results of a positive pregnancy determination prior to 42 days should be indicated in a manner showing the applicable number of days such as “pregnant----41 days.”
- Aborted. Any filly or mare that is not pregnant at the time of examination should be reported as “aborted” rather than “not pregnant” if the person rendering the report is actually aware that (a) an aborted fetus was observed or (b) the mare had been declared “pregnant” based on an examination at 42 days or more post mating.
- Not Pregnant. Any filly or mare that has been mated, examined for pregnancy, and found not pregnant at 42 days or more post mating during a specified year should be characterized as “not pregnant” unless such filly or mare has “aborted” as defined above. Any filly or mare that has been mated, examined for pregnancy and found not pregnant prior to 42 days post mating should be indicated in a manner showing applicable number of days such as “not pregnant---41 days.” Any filly or mare determined to be pregnant prior to 42 days post mating and later found to be not pregnant should be characterized as “not pregnant” rather than “aborted” unless the examiner has knowledge that an aborted fetus was observed.
- Suitable for Mating. Any filly or mare that is not pregnant at the time of examination shall be characterized as “suitable for mating” if a palpation per rectum of the ovaries, uterus and cervix, and speculum examination of the cervix and vagina does not reveal significant abnormalities that would indicate that the filly or mare is not reproductively within reasonably normal limits. A filly or mare that is “pregnant” or “pregnant 42 days” at the time of examination, as determined by a palpation per rectum, shall be characterized as “suitable for mating” without further tests or examinations. Any reproductive examination or statement that a filly or mare is “suitable for mating” thus only indicates either (a) the results of the above-referenced palpation per rectum and speculum examination on the date performed or (b) the filly or mare was found to be “pregnant” or “pregnant -- 42 days” and does not reflect the examiner’s opinion of the future ability or inability of a particular filly or mare to conceive and deliver a live foal. There are many other tests or criteria that might be utilized to estimate the likelihood of a successful mating; however, a statement that a mare is “suitable for mating” shall not indicate any tests have been completed other than those specifically referenced above. Moreover, a filly or mare may be characterized as “suitable for mating” based on only one examination even though more than one examination might enhance the likelihood of discovering reproductive abnormalities.
- Mating. The physical act of a stallion mounting a filly or mare with intromission of the penis and ejaculation. Artificial insemination qualifies as mating for breeds that permit artificial insemination.
- Mated. Any filly or mare that has undergone the physical act of mating but whose pregnancy status has never been determined.
- Not Mated. Any filly or mare that has not undergone the physical act of mating by any stallion during a specified year.
8. Bloodstock Interests
- Sellers or Consignors may at times offer Bloodstock Interests. When such Bloodstock Interests are offered for sale, Seller and Consignor must disclose an accurate description of the terms and conditions of the interest being sold and any restrictions on the interest. Potential Bidders and Purchasers shall have the opportunity and obligation to review the terms and conditions of ownership of any Bloodstock Interest offered for sale and purchase such interests based on the terms and conditions of ownership. Each Bloodstock Interest is offered on a NO-GUARANTEE, NON-REFUNDABLE BASIS, unless otherwise expressly stated in the catalogue or announced at the time of sale.
- By entering a Bloodstock Interest in the sale, Seller and Consignor, jointly and severally, represent and warrant that: (a) Seller owns good and marketable title in and to the Bloodstock Interest, free and clear of any and all Encumbrances (including but not limited to any right of first refusal related to such Bloodstock Interest); and (b) Seller and Consignor have full capacity and full power and authority to transfer the Bloodstock Interest(s) to Purchaser in the manner set forth herein without the consent or approval of any other party.
- Purchaser agrees to use the Bloodstock Interest(s) only in conformity with the terms and restrictions imposed by the syndicate manager, and/or the owner and/or manager of the stallion or mare, pursuant to the syndicate agreement and/or any other applicable agreement and management practice for the stallion or mare involved. Purchasers further agree to be bound by the terms and conditions of the applicable syndicate agreement or breeding contract (as the case may be) and to execute further documentation as necessary to evidence Purchaser’s acceptance of such agreements or contracts.
9. Limited Warranties
- Any horse who has an Announcement Condition, a Veterinary Condition, or a Broodmare Surgery that was not disclosed as required pursuant to these Terms and Conditions or who has been subject to any Prohibited Practices will be subject to return to Consignor with refund of purchase price in Purchaser’s discretion, provided that Host is so notified in writing by veterinary certificate, of such condition and the rejection or revocation of acceptance of the horse (“Rejection”) on the above grounds shall meet the time requirements and process set forth herein. In addition, any horse which has been subjected to Prohibited Practice(s) (as hereafter defined) shall be subject to Rejection, provided that Host is so notified in writing by veterinary certificate of the Prohibited Practice to which the horse was subjected and such Rejection shall meet the time requirements set forth herein.
- Consignor shall have the sole responsibility concerning the accuracy of the disclosure/announcements of the condition of any Horse as required pursuant to these Terms and Conditions, and Seller, Consignor and Purchaser agree that the Host is absolved from any liability relating to such announcements/disclosures and each agrees to hold the Host harmless from any loss incurred relating to such announcements/disclosures and any claims resulting therefrom. Seller, Consignor and Purchaser further agree that the Host is absolved from any liability relating to Prohibited Practices (hereafter defined) and each agrees to hold the Host Parties harmless from any loss incurred with respect to Prohibited Practices (as hereafter defined). Except as otherwise expressly provided in these Terms and Conditions, in the event of any Rejection under these Terms and Conditions, Consignor shall (i) refund the purchase price to Purchaser together with any proper and reasonable expenses incurred by Host including interest at the rate of 12% per annum, and (ii) pay Host’s entry fees and commission as if the sale had been final.
10. WARRANTY DISCLAIMER
OTHER THAN THOSE LIMITED WARRANTIES EXPRESSLY STATED IN THESE TERMS AND CONDITIONS OR EXPRESSLY ANNOUNCED AT THE TIME OF SALE, THERE IS NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY THE HOST, SELLER, AND/OR CONSIGNOR AS TO: THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY HORSE OFFERED IN THIS SALE; OR THE SOUNDNESS, WIND CONDITION OR OTHER QUALITY OF ANY HORSE SOLD IN THE SALE; OR THE BREEDING QUALITIES OF ANY HORSE WHICH AT THE TIME OF SALE IS OFFERED IN ITS YEAR OF FOALING, OR ITS YEARLING OR TWO-YEAR-OLD YEAR, OR IS DESCRIBED AT TIME OF SALE AS A HORSE OF RACING AGE. SUBJECT TO THE LIMITED WARRANTED CONDITIONS SET FORTH IN THESE CONDITIONS OF SALE, ALL SALES ARE MADE ON AN “AS IS” BASIS, WITH ALL FAULTS AND DEFECTS. OTHER THAN FAILURE TO SATISFY THE EXPRESSLY WARRANTED CONDITIONS SET FORTH IN THESE CONDITIONS OF SALE, NO OTHER DEFECTS SHALL CONSTITUTE A NONCONFORMITY, SUBSTANTIAL OR OTHERWISE, WITH THE TERMS OF THESE CONDITIONS OF SALE. HOST FURTHER DOES NOT REPRESENT OR WARRANT THAT ANY INFORMATION PROVIDED ON THE SITE WILL BE TIMELY, ACCURATE, RELIABLE, PRECISE, THOROUGH, CORRECT OR COMPLETE; THAT THE SITE OR ANY SERVICES, CONTENT, FUNCTIONS, INFORMATION, MATERIALS AND PRODUCTS AVAILABLE THROUGH THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR PLACE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; THAT ANY DEFECTS OR ERRORS IN THE SITE WILL BE CORRECTED; OR THAT ANY PARTICULAR RESULT OR OUTCOME CAN BE ACHIEVED OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE.
- Any Seller and/or Consignor, including their disclosed and undisclosed Agents, has the right to set a reserve or bid upon lots entered into a sale. Seller and/or Consignor shall notify Host in writing of any such reserve at least 24 hours prior to the sale. In such event, Host shall use its best efforts to adhere to such reserve. In the event a lot is sold to a Purchaser for less than the reserve, Host’s liability, if any, shall be limited to paying Consignor an amount not to exceed the reserve less the commission charged on such sale. In the event a lot is sold with a reserve higher than that placed by the Consignor (including, without limitation, a reserve placed on a horse when none was directed by the Consignor), the lot if not sold to a Purchaser, at the option of Consignor, may be re-offered for sale, and Seller, Consignor and the Host agree that the Host shall waive all of its commission, including any entry fees paid, as liquidated damages and neither party shall have any other rights, claims or obligations to the other arising out of the reserve error.
- Sales results reported by the Host may or may not reflect the fair market value of any lot(s) going through the Host’s sale as, among other reasons, Consignors may inform the Host after the sale concerning lots that may have been initially reported as a sale(s) which are, in fact, not a sale.
- Bidders may participate in a sale by bidding online through the Site’s online live bidding platform, subject to approval by the Host in its sole and absolute discretion. To bid online, Bidders must register online at least 24 hours before the start of the sale. As noted in Section 4, the Host encourages all Bidders to conduct pre-sale exams on any Horse on which they may bid. All Bidders agree to these Terms and Conditions and all announcements as well as such additional terms as the Host, in its sole and absolute discretion, may require. When making a bid, Bidder accepts personal liability to pay the purchase price, as described more fully in Section 12.
- Any Bidder who places a bid expressly acknowledges and agrees as follows: (1) online bidding relies upon technology that may malfunction without warning and through no fault of the Host; (2) online bidding is being provided on an “AS AVAILABLE” and “AS IS” basis and the Host does not guarantee continual, uninterrupted or error free online bidding; and (3) the Host shall be absolved from any and all liability related to or arising from any interruption in service, errors and/or omissions with respect to online bidding and each Bidder or Purchaser who places an online bid shall hold the Host harmless from any loss or claim resulting therefrom. In the event of a technology issue of any type (including, but not limited to, malfunctions affecting, or resulting in a temporary inability to use, online bidding platforms, computers, telephone servers, or any similar technological equipment or software), the Host reserves the right, exercisable in its sole and absolute discretion, to temporarily suspend bidding, extend the relevant bidding period, cancel the sale, or reoffer the lot affected for sale.
- Should any dispute arise between or among two or more Bidders, the Host shall forthwith adjudicate the dispute, and its decision shall be absolute, final, and binding on all parties. Bids received after the sale has closed are not grounds for dispute. In case of any dispute, advance bidding shall be restricted to the contending parties, but should the recognized bid from the contending parties be reduced below the bid at commencement of dispute, then the bidding shall be reopened to all Bidders, and the final bid therefrom shall stand, regardless of whether the final bid exceeds the bid which was disputed. The bid recognized at the conclusion of any bidding dispute shall be deemed the sale price and Consignor shall not be entitled to any amount over the sale price. The Host reserves the right to reject any or all bids, in its sole discretion. In the event that the Seller, Consignor (or his Agent) bids on his own lot (RNA), then Consignor shall so notify the Host within thirty (30) minutes of conclusion of the sale of the lot. In the event the Bidder who had the highest and last bid at the close of the sale or refuses to pay the purchase price within two (2) business days following the day of the sale, the Host may elect at its sole discretion, to either re-enter the lot at the same or next available sales session, or withdraw the lot entirely from the sale. Host has no control over and does not guarantee the ability of any Bidder or Purchaser to pay for any lot or that Purchaser and Seller will actually complete a transaction. The Host reserves the right to bring suit against said Bidder for the amount of the sale price (or any deficiency if resold), plus any other damages or may, in its sole discretion, assign such right to the Consignor, in which event the Host shall have no further obligation arising out of the subject lot being entered and going through the auction process conducted by the Host. Further, Seller, Consignor and Bidder agree to hold the Host and its owners, directors, officers, employees, service providers, independent contractors, agents and representatives (collectively, the “Host Parties”), harmless for any deficiency or loss incurred by any of them resulting from such action.
- Notwithstanding any contrary provision(s) of these Terms and Conditions, the Host reserves the right to refuse to accept and/or reject and/or ignore any bid(s) from any persons(s) whomsoever, even if credit has been approved or even if payment is tendered or believed to be forthcoming. Provided, however, such exclusion and such refusal to bid(s) shall not be made on the basis of race, creed, color, national origin, sex, political affiliation or beliefs. By accepting the license granted to the public by the Host to attend the sales or utilize the Site, each individual likewise agrees to be bound by these Terms and Condition. Each Participant agrees that such Participant shall not share its log in credentials with any third parties.
- Purchaser shall make payment to the Host in all cases. Purchaser shall make payment for the full purchase price (which shall include any sales tax which may be due and owing as determined by the Host or as may be later determined by the taxing authority with jurisdiction over the sale upon audit) for each lot purchased as may be required by the Host and not later than two business days following the day of the sale, such payment to be in the form of U.S. currency by wire transfer or approved bank check, certified check, or traveler’s check. Purchaser represents and warrants that any payment information provided is true, accurate, and complete and that Purchaser is duly authorized to use such payment method.
- The Host reserves the right exercisable by the Host in its sole and exclusive discretion, which shall be final and binding upon all parties, to (1) refuse to extend credit to Purchasers who have unpaid accounts for previous Host or other sales, and/or (2) refuse the opportunity to bid or refuse to accept the bid of a Purchaser who has an unpaid account from a previous sale, or who has not established his credit with the Host, or established to the reasonable satisfaction of the Host that payment will be made as required by the Host, and/or (3) require either collected funds be on deposit with the Host or, an irrevocable Letter of Credit acceptable to the Host, prior to accepting any bid(s). Bidders are cautioned that the fact that they may have been extended credit at a prior sale does not necessarily mean that they automatically have credit at this sale and future sales. The Host further retains the right to demand re-establishment of credit for any previous Purchaser prior to their bidding in this sale. The Host further reserves the right, in its sole and exclusive discretion, at any time and for any reason (except race, sex, color, or creed), to revoke any credit previously established and to therefore refuse to accept the bid(s) of a Purchaser who has not established prior to his bid(s), that payment will be made in full within 60 minutes from the close of the sale. All Purchasers shall pay the purchase price for the lot(s) within two business days following the day of the sale.
- Any Purchaser who has purchased a lot grants to the Host a “Security Interest” in all lots purchased and, if applicable, their Jockey Club certificate(s) of registration (including without limitation digital certificate(s)) (a “Registration Certificate”) and in any products and proceeds thereof, to secure payment of any outstanding sums owed to the Host on the Purchaser’s account. The Host may, in its sole and exclusive discretion, elect to make full or partial settlement with Consignor despite a default by Purchaser. SUCH ELECTION(S) BY THE HOST TO PAY THE CONSIGNOR SHALL NOT CONSTITUTE A WAIVER, NOR ESTABLISH A CUSTOM AND SHALL NOT ABROGATE THE HOST’S RIGHT TO WITHHOLD SETTLEMENT FROM CONSIGNOR IN ANY OTHER CASE WHERE THE PURCHASER HAS DEFAULTED. In no case shall any part of the purchase money be paid directly to the Consignor by the Purchaser unless otherwise agreed to, in writing, by Consignor, Purchaser and the Host. Such payment will not be regarded as valid and will not entitle the Purchaser to obtain the lots so purchased in this manner. On final settlement for a horse, or the approval of the Purchaser’s credit by the Host, the Host will issue a “stable release” which must be presented by the Purchaser to the stable manager for delivery of the horse as provided in Section 15.
In the event any Purchaser fails to pay the purchase price within two business days following the day of the sale, then the Purchaser shall be deemed a defaulter (a “Defaulter”) and the Host shall notify the Consignor of the default upon discovery of the Defaulter. The Consignor of the lot for which the purchase price is not paid has the option of (1) extending credit to the Purchaser and accepting all risk therefor; OR (2) voiding the sale, and requesting the lot be re-offered; OR (3) retaining ownership of the lot. Consignor must notify Host in writing of its election of the three foregoing options within two hours of notice to Consignor by the Host of non-payment. If Consignor fails to make its election within such time period, the Host may, in its sole discretion, re-enter the lot into the next available sales session and sold with the prior attempted sale to Defaulter being voidable by the Host, which shall be binding on all parties. In the event Host elects not to re-enter the lot into the next available sales session, Host, in its sole discretion, may resell the lot at public or private sale, including in any subsequent sales session, without prior notice for the Defaulter’s account. All costs associated with such resale, including attorneys’ fees, shall be borne by the Defaulter. Should such resale fail to satisfy the Defaulter’s account in full, Defaulter shall be responsible for any such deficient balance and shall pay the Host the amount owing, including late charges, all reasonable attorneys’ fees, costs of such litigation and any other damages available to the Host by law, including reimbursement for all expenses in caring for and insuring said horse. Any deficiency owed by Defaulter resulting from resale on account of any default which is not collected from the Defaulter shall be borne by the Consignor, and the Host shall have no responsibility therefore. If the Host determines, in its sole discretion, it is not feasible to re-offer the lot for sale, the Host shall have the right to bring suit against the Defaulter and/or to repossess the horse and its registration papers and in connection therewith, the Host shall be entitled to the recovery of its costs, including without limitation all reasonable attorneys’ fees, from the Defaulter. Any lot purchased by a Defaulter may be resold by the Host at public or private sale, without prior notice, for the Defaulter’s account, costs of such sale to be borne by the Defaulter. FURTHER, THE DEFAULTER SHALL BE LIABLE FOR A DELINQUENCY OR LATE CHARGE AT THE RATE OF ONE AND ONE-HALF PERCENT (1-1/2%) PER MONTH ON THE UNPAID PURCHASE FROM THE DATE OF SALE UNTIL PAID, COMPOUNDED MONTHLY.
- A Purchaser may elect to reject the sale and revoke acceptance of a Horse only upon complying with the following: (i) written statement from Purchaser requesting Rejection must be received by the Host within 24 hours after the sale of the horse and before the horse leaves the grounds where it was located for the sale, and (ii) Negative Certificate must be received by the Host within 24 hours after the session in which the horse is sold and before the horse leaves the grounds where it was located for the sale. Purchaser shall deliver a copy of the Negative Certificate to Consignor simultaneously or promptly following delivery of the Negative Certificate to Host.
- In the event of a Negative Certificate, Consignor shall either accept Rejection or deliver to the Host Consignor’s veterinary certificate contrary to that of Purchaser (“Positive Certificate”). The Positive Certificate must be received by the Host within 24 hours of Consignor’s receipt of the Negative Certificate.
- In the event of a receipt by the Host of a Negative Certificate and Positive Certificate, the Host will provide Consignor and Purchaser with a list of veterinarians and a Panel of three (3) veterinarians shall be convened in the same manner as provided for in Section 14. The Seller, Consignor and Purchaser acknowledge that the selection process is fair and reasonable to each of them.
- The Panel shall determine, based upon the information in the Repository, whether there are facts and circumstances that cause the Repository information not to be accurate, valid or authentic in any material respect and materially misleading regarding the condition of the horse. In the event the Panel determines, based upon such examination(s) that there are facts and circumstances that cause the Repository information not to be accurate, valid or authentic in all material respects and such information is deemed to be materially misleading regarding the condition of the horse, the sale shall be cancelled. Otherwise, the sale shall stand. The decision of the Panel shall be final, binding and conclusive on all parties, absent fraud or bad faith. If the Panel is not unanimous, a majority vote shall be determinative. The Host will not provide the Panel with information regarding the hip number or the name of the Purchaser or Consignor involved in the sale of the horse.
- In the event of Rejection, Consignor shall (i) refund the purchase price to Purchaser together with any proper and reasonable expenses incurred by Purchaser including interest at the rate of 12% per annum, (ii) pay the Host’s entry fees and commission as if the sale had been final, and (iii) reimburse the Host for any reasonable expenses incurred by the Host including, without limitation, attorneys’ fees. Further, if the Host determines, in its sole discretion, that Consignor has deliberately and knowingly either placed incorrect information in, or omitted material information from, the Repository which is deemed to be materially misleading regarding the condition of the horse, the Host may elect, in its sole discretion, to impose sanctions against Consignor which may include, without limitation, prohibiting Consignor from selling horses at future sales. If the sale is Rejected, Consignor shall pay all expenses associated with the Panel. If the sale is not Rejected, Purchaser shall pay all expenses associated with the Panel.
- The limited right of Rejection contained in this Section 14 shall terminate regardless of whether 24 hours have elapsed, immediately upon the removal of the horse from the grounds where it was located for the sale, or use of the horse “under tack” (which includes lunging horses and horses being ponied). Consignor shall have the sole responsibility concerning the accuracy of the disclosures/announcements. Seller, Consignor and Purchaser agree that the Host is absolved from any liability relating to such announcements/disclosures and all agree to hold the Host harmless from any loss incurred by either of them relating to such announcement/disclosures.
- All items, including radiographs, placed by Consignor in the Repository are the sole property of Consignor (or the Consignor’s veterinarian) and Consignor shall have the right to receive all such items and information back 48 hours after the end of the session at which the horse in question was sold. However, the Host may elect to hold such items on behalf of Consignor in the event a dispute arises concerning these Terms and Conditions and will return the items to Consignor upon the resolution of the dispute. Further, the Host may permit the Purchaser to receive such items only if Consignor has agreed to permit the Purchaser to receive such items or information. In the event Consignor fails to pick up the items and information contained in the Repository within 30 days after the end of this Sale, the Host may elect to notify the Consignor (and/or the Consignor’s veterinarian, if known) of the Host’s intent to destroy or otherwise dispose of said Repository information 10 days after notice from the Host of its intent to take such action and the Host shall be held harmless by Consignor for any losses or expenses incurred as a result of the Host’s disposition of the items contained in the Repository.
15. Passing of Title; Risk of Loss
- Each Consignor irrevocably authorizes and directs Host to provide the Consignor’s contact information, including name, telephone number and email address, to the Purchaser of any horse sold at an Auction by such Consignor and each Purchaser irrevocably authorizes and directs Host to provide the such Purchaser’s contact information, including name, telephone number and email address, to the Consignor of such horse. Host shall notify each applicable Consignor and Purchaser upon Host’s receipt of the purchase price for each horse sold by such Consignor and purchased by such Purchaser at the Sale. Such notice shall contain confirmation that Host has received the purchase price for such horse and the contact information for each of the Consignor and such purchaser. Upon receipt of such notification, Consignor and Purchaser shall communicate directly with each other to coordinate Purchaser’s collection of the Horse from Consignor at such time and on such terms as are acceptable to Consignor and Purchaser. Any transportation of the horse from Consignor to Purchaser shall be the sole responsibility of Purchaser and shall be at such Purchaser’s expense. Host is not responsible for the care, custody, control or security of the horse and Host is acting simply as agent with respect to the sale of the horse at the Auction.
- Except as provided in this Section 14 and Section 6, title and risk of loss pass to the Purchaser shall pass upon release of the horse by Consignor to Purchaser, Purchaser’s Agent, or the carrier elected to be used by the Purchaser. At such time, Purchaser shall be responsible for the care, custody, control and security for the horse and for all expenses relating thereto.
- Seller, Consignor and Purchaser agree to release, defend, indemnify and hold the Host, and the owners and/or operators of the facilities and their directors, officers, employees, service providers, independent contractors, agents and representatives, harmless from all losses, damages, expenses, claims, causes of action and/or attorneys’ fees arising out of or related to the possession, care, custody, control or maintenance of any horse either sold or purchased by them, including, but not limited to, any claims arising out of injuries or damage caused by the horse. The horse will be held for Purchaser by Consignor until Purchaser makes settlement as provided at Section 12 below and arrangements for delivery of the horse to Purchaser are made. Taking possession of the horse by Purchaser, agent or his representative shall constitute delivery and acceptance.
16. Dispute Resolution
- For all dispute resolutions as provided in these Terms and Conditions, expenses of the Panel, arbitrator, and the Host Parties shall be the responsibility of the non-prevailing party. Consignor shall be solely responsible for expenses incurred by him, including his veterinarian, and Purchaser shall be solely responsible for expenses incurred by him, including his veterinarian. During the period of determining whether the sale shall be Rejected, the horse shall be at the risk of the party who does not prevail. Boarding of the horse during this period shall be arranged by the Host with the cost of same to be borne by the non-prevailing party.
- All dispute resolutions shall be conducted in Lexington, Kentucky, and the final determination of the Panel or arbitrator, as applicable, shall be in writing and signed by the Panel members or arbitrator making or joining in the determination, as applicable.
- The parties acknowledge that they expressly waive any requirement that the Panel conduct a hearing and the parties further waive any right they may have to participate in any dispute resolution procedure other than as provided in these Terms and Conditions. All parties further acknowledge the Panel may be conducted, if deemed feasible in the Host’s discretion, in a manner which does not reveal the identity of the parties involved and/or the identity of the horse(s) at issue.
- Time is of the essence for all matters as set forth in this and all other Terms and Conditions.
- All parties acknowledge that only the conditions set forth in these Terms and Conditions will allow Rejection and that Rejection hereunder shall be Purchaser’s sole and exclusive remedy. In all other respects the AS IS nature of this sale remains in full force and effect.
- Other than those disputes which are subject to binding resolution as set forth in these Terms and Conditions, for all such other disputes among Seller, Consignor, Purchaser and/or the Host Parties arising out of this sale, including but not limited to, any dispute arising under these Terms and Conditions regarding any alleged defect or nonconformity or breach of warranty of fitness, as may be provided herein, of any lot sold, all interested parties agree that the Host Parties may seek judicial resolution of such dispute and shall be reimbursed for its reasonable costs and expenses, including interest and attorneys’ fees, pending determination thereof.
- In addition, if no party is willing to take possession of the horse which is the subject matter of the controversy, all interested parties agree that the Host may take all such steps as it deems advisable in the maintenance and care of such horse, including, without limitation, board, veterinary care, and any other reasonable expenditures such as insurance coverage. Furthermore, the Host shall have the sole discretionary right, but shall be under no obligation, to sell the horse in controversy at any sale, public or private, and upon such terms and conditions as the Host may deem appropriate. The Host has the sole discretion as to making any announcements concerning the condition of the horse prior to such sale. Such sale may be made, within the sole and exclusive discretion of the Host, with or without notice to the Seller, Consignor or Purchaser. All such costs and expenses shall bear interest at the rate of 12% per annum, and the Host shall be reimbursed for same, costs and expenses plus interest thereon, by the party ultimately determined to be the owner of the horse in controversy. In the event the subject horse should be resold, all parties agree that the Host shall be reimbursed first for any expenses it has incurred in the care of such horse and for its legal expenses with the balance, if any, to be paid to the Consignor.
- Seller, Consignor and Purchaser agree to hold the Host Parties harmless for any deficiency or loss the Seller, Consignor and/or Purchaser may incur upon the resale of such horse in the event the Host is unable to resell the horse for an amount equal to or greater than the original purchase price.
17. Agent Conduct
- Persons acting as Agents for Principals, irrespective of whether the Principal is in attendance or otherwise participating in the sale, must file letters of authorization from the Principal(s) stating that the Agent is acting on their behalf and that said Principal will be responsible for Agent sales or purchases. Failure to comply with this Section 17 will result in the Agent being deemed to be a co-obligor with the Principal with respect to all matters in connection with or arising out of the sale and impose joint and several personal liability upon such Agent for any breach of contract.
- All persons acting as Agents for Principal(s) also are responsible for ensuring that the Principal makes settlement for the full purchase price for each lot purchased not later than 24 hours from the close of the sale. By bidding on a lot, a person acting as Agent agrees to be personally liable with the Principal, for the full purchase price of the lot purchased if the Principal does not make settlement for the full purchase price within 24 hours from the close of the sale.
- All prospective Purchasers who utilize Agents are urged to reach an agreement with the Agent concerning the Agent’s apparent or real conflicts of interest and disclosure of the Agent’s compensation, if any, from whatever sources, directly or indirectly, relating to or arising out of, the Agent’s services. KRS 230.357 makes it unlawful to receive money or any item of value in excess of $500.00 in connection with the sale or purchase of a horse except with full disclosure and written consent of both Purchaser and Seller; provided, however, this prohibition shall not be applicable where the Agent is acting solely for and compensated solely by his Principal.
18. Registration Certificate
- The Registration Certificate for each horse sold must be furnished by the Consignor prior to the sale. The Host will withhold settlement for all sales, until all Registration Certificates have been delivered to the Host. The Host will also withhold settlement of broodmares until the Consignor delivers to the Host the stallion service certificate required by The Jockey Club in registering foals.
- The Host reserves the right to withhold delivery of all registration papers for all horses either bought by a Purchaser OR returned to Consignor (in the event of either a withdrawal fee or a chargeback commission) until such time as the Purchaser’s or Consignor’s account with the Host shall have been paid in full. Further, in addition to all other rights and remedies, to the fullest extent permitted by applicable law, all parties acknowledge the Host has the right to set off, without further notice to Purchaser or Consignor, and apply funds held by it to satisfy payments owed to the Host by Purchaser or Consignor until such time as Purchaser’s or Consignor’s account with the Host shall have been paid in full. In order to secure payment of the purchase price or sales commission, Seller, Purchaser and Consignor hereby grant the Host a security interest and lien upon the subject horse or horses (and proceeds and progeny thereof), together with all registration certificates and stallion service certificates (including without limitation digital certificate(s)) relating thereto.
19. Limitations of Action
Any cause of action brought by any Participant arising out of the purchase and sale of any lot at a sale of the Host, whether it is based in contract or tort, shall be commenced in not more than one year after the sale. Provided, however, this limitation of action shall not apply to an action brought by Host or an action for the recovery from the Purchaser of the purchase price, plus interest and expenses, and including repossession of any lot purchased at this sale.
- The Consignor, Seller or the Host may have made oral statements or published advertisements concerning the physical condition or the racing abilities of the lots described in this catalogue (digital or print) or this sale generally. Such statements or advertisements do not constitute warranties, shall not be relied upon by the Purchasers and are not part of the contract for sale. The entire contract of sale is embodied in these Terms and Conditions, the Purchaser’s Agency Form, and the Consignor’s Agency Form. These aforementioned documents constitute the final expression of the parties’ agreement, and are a complete and exclusive statement of that agreement. Any attempt on the part of the Purchaser to unilaterally alter or modify these Terms and Conditions is prohibited and shall be invalid and unenforceable. Notwithstanding the above, the Seller, Consignor and Purchaser may enter into an agreement which modifies the limited warranties as provided herein; however, any such action by the Seller, Consignor and Purchaser cannot and shall not modify or alter the duties, responsibilities and rights of the Host as provided in these Terms and Conditions. The word “or” when used herein shall be used in the inclusive sense of “and/or”. Consignor shall include Seller in the event Seller has not engaged a Consignor as agent.
- The Host shall endeavor to protect the interests of both Consignor and Purchaser, but the duties and obligations of the Host Parties to such persons shall be strictly limited to those expressly imposed upon the Host by these Terms and Conditions. All other duties and obligations, including fiduciary and other duties which might otherwise be imposed upon the Host by operation of law, are hereby expressly disclaimed, except that the Host shall be required to exercise that standard of care generally exercised by other comparable horse auction companies.
- These Terms and Conditions and all matters arising out of or relating to these Terms and Conditions shall be governed by and construed in accordance with the internal laws of the Commonwealth of Kentucky without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Kentucky or any other jurisdiction). All interested parties, including Participants, and all sales via any bidding process available on the Site are bound by these Terms and Conditions.
- Except as provided in Section 14, any other controversy or dispute between or among Host, Seller, Purchaser and/or Consignor arising out of a claim made under these Terms and Conditions or relating to this sale shall be settled by arbitration among the parties in accordance with the rules of the American Arbitration Association. Arbitration shall take place in Lexington, Kentucky. All parties, including Host, Seller, Purchaser, Consignor or others, consent to the venue and jurisdiction of state or federal courts of record sitting in Fayette County, Kentucky for the purpose of enforcing this agreement to arbitrate or for the purpose of enforcing any award or finding made by the arbitrator(s) (all parties hereby waiving any defense of forum nonconveniens). Host, Seller, Purchaser, Consignor and any other interested party expressly waive any right to a trial by jury with respect to any litigation arising out of the sale of any horse governed by these Terms and Conditions. Notwithstanding the above, judgment upon any award rendered by the arbitrator(s) may be entered by any party and any court having jurisdiction thereof.
- In the event Seller and/or Consignor makes arrangements with prospective Bidders or Purchasers prior to sale which differ from these Terms and Conditions, the Host shall have no responsibility in regard to any such agreements, and the enforcement thereof shall be the responsibility of the parties to the agreement.
- If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Time shall be of the essence in these Terms and Conditions.