CONDITIONS OF SALE
IMPORTANT AND LEGALLY BINDING RULES
APPLICABLE TO THIS SALE. PLEASE READ.
FIRST
THESE CONDITIONS GOVERN ALL SALES ON EQUIBREED.COM: This sale is governed by these Conditions of Sale and by all announcements from the website or otherwise (“Announcements”). All sellers, consignors, agents, owners, prospective bidders/buyers, all other interested parties and all sales are therefore bound by and subject to the provisions of the Conditions of Sale as set forth in this website.
Postsale Exam: All buyers are urged to carefully examine horses in which they may be interested personally and/or by agents or veterinarians of their choosing within 72 Hours of using the OWN IT NOW or Auction facility as they are accepting any horse purchased with all faults, including all conditions and defects, except for applicable limited warranties set out in Conditions SIXTH through SEVENTH. Equibreed.com provides a basic confirmation examination by a licensed veterinarian for an optional fee. However, this examination does not provide any warranties of the horse with regards to soundness, of fit for purpose. The buyer is strongly encouraged to have the horse examined by a personal veterinarian for whatever specific use is intended.
Conformation Surgeries: Horses in this site may have been subject to Surgery(ies) designed to affect permanent changes in its physical makeup, which includes, without limitation, transphyseal bridge, periosteal transsection, manipulation and elevation. An industry-wide sales integrity task force is reviewing these issues and has determined that disclosure of such Surgery(ies) for horses in this sale should be voluntary. Accordingly, nondisclosure of this Surgery(ies) shall not be grounds for rescission of sale. Should a Buyer deem this information material, Buyer should request from Consignor/Owner whether such Surgery(ies) has been performed and Consignors/Owners shall be obligated to respond truthfully to their best knowledge, information and belief.
Agent: All prospective buyers who utilize agents are further 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.
Endoscopic Examination: Conditions revealed by post-sale laryngoscopic examinations for which rescission is allowed are ONLY as set forth in Condition of Sale TENTH. There are other conditions which may be revealed by that examination or other examinations which may affect the desirability of purchasing the horse but which are not grounds for rescission of sale.
Privacy Notice: Notice is hereby given to all participants at equibreed.com that Equibreed Corporation may document, or store by electronic means any or all portions of equibreed.com’s sales.
SECOND
APPLICABLE/GOVERNING LAW: The horses included in this sale are offered for sale according to the laws of the State of Florida which shall be controlling and apply in all respects.
THIRD
WARRANTY DISCLAIMER: THERE IS NO WARRANTY EXPRESS OR IMPLIED BY EQUIBREED CORPORATION OR CONSIGNOR (INCLUDING OWNER), EXCEPT AS SET FORTH HEREIN, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY HORSE OFFERED IN THIS SALE. SUBJECT TO THE LIMITED WARRANTIES STATED HEREIN, ALL SALES ARE MADE ON AN “AS IS” BASIS, WITH ALL FAULTS AND DEFECTS. See, however, Conditions NINTH through THIRTEENTH for certain limited warranties that are provided.
FOURTH
PASSING OF TITLE; RISK OF LOSS; DELIVERY: Except as provided in this Condition FOURTH, title and risk of loss pass to the purchaser at electronic close of the auction or by selection of the OWN IT NOW facility, at which time purchaser shall be responsible for the care, custody, control and security for the horse and for all expenses relating thereto.
FIFTH
TERMS FOR PAYMENT; REMEDIES UPON DEFAULT: Purchaser shall make payment to Seller in all cases. Unless Seller determines to extend credit to a purchaser, purchaser shall make payment for the full purchase price (which shall include any sales tax which may be due and owing as determined by Seller. Equibreed Corporation reserves the right exercisable by Equibreed Corporation in its sole and exclusive discretion, which shall be final and binding upon all parties to (1) refuse the opportunity to bid or refuse to accept the bid of a purchaser who has an unpaid account from a previous sale. Purchasers and 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.
Any purchaser who has purchased a horse grants to Equibreed Corporation a “Security Interest” in all horses purchased and their Jockey Club certificate(s) of registration and in any products and proceeds, to secure payment of any outstanding sums owed to Seller.
SIXTH
LIMITATION OF WARRANTIES: AS STATED IN CONDITION THIRD, OTHER THAN THOSE LIMITED WARRANTIES EXPRESSLY STATED IN THESE CONDITIONS OF SALE, OR UNLESS OTHERWISE EXPRESSLY ANNOUNCED AT TIME OF SALE, THERE IS NO WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SOUNDNESS, CONDITION, WIND OR OTHER QUALITY OF ANY HORSE SOLD IN THIS SALE.
Limited Warranties: HOWEVER, all horses that are (A) cribbers, and/or (B) any horse sold in this sale after July 1 of his yearling year that is a cryporchid (ridgling) or a gelding must be so announced at time of sale. 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); (iii) are two years of age or less and (a) have undergone 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 (2) 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, must be so disclosed by placing a veterinary certificate in the Repository (see Condition TWENTY-THIRD) on a timely basis as required by Equibreed Corporation reasonably disclosing that one or more of the above conditions are applicable or in lieu thereof must be so announced at time of sale. In addition, horses which have been subject to Prohibited Practices (hereafter defined) shall be subject to Rejection.
Prohibited Practices are:
Shockwave Therapy in any form once the horse enters the sales grounds.
Acupuncture and/or Electro-Stimulation with the intent of altering laryngeal function once the horse enters the sales grounds.
Internal blister for alteration of conformation within 90 days of sale.
Seller shall have the sole responsibility concerning the accuracy of the disclosure/announcements and both consignor and purchaser agree that Equibreed Corporation is absolved from any liability relating to such announcements/disclosures and/or all issues related to Prohibited Practices and both agree to hold Equibreed Corporation harmless from any loss incurred relating to such matters.
Any horse whose condition is as aforesaid and is not so announced or disclosed as required above will be subject to return to consignor with refund of purchase price, provided that Equibreed Corporation is so notified in writing by veterinary certificate, of such condition and the rejection or revocation of acceptance (“Rejection”) on the above grounds shall meet the time requirements hereafter set forth.
Time Requirements: The physical condition of horses is subject to material change on a daily basis. Time is of the essence. Failure to strictly comply with the notice requirements hereafter set out shall operate to disallow the protection of the applicable warranty in favor of purchasers. The time requirements for Rejection for each of the limited warranties set forth in subparagraphs (i) through (v) and Prohibited Practices above are:
(A) 72 hours from the end of the session at which the horse in question was sold for cribbers, eyes, wobbler, nerved, misdescription as a colt/cryptorchid/gelding, or Prohibited Practices.
(B) 14 days from the day of sale in the case of surgeries as described in paragraphs (iii) and (iv) above.
Other than failure to satisfy the aforementioned expressly warranted conditions, no other defects shall constitute a nonconformity, substantial or otherwise, with the terms of the contract. A cryptorchid (ridgling) is hereby defined as a colt which does not have both testes palpable in the entirety below the external inguinal ring. In any case of return of the horse to the consignor in accordance with these Conditions of Sale, consignor shall pay the purchaser or Equibreed Corporation all proper expenses, including interest thereon at the rate of 12% per annum, incurred by either of them 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 veterinarian charges, vanning and boarding.
Notice Requirements: As a condition precedent to allow a Purchaser to avail himself of any of the above limited warranties, he shall supply Equibreed Corporation with a veterinary certificate stating such veterinarian’s opinion that the horse in question has not met one or more of the above limited warranties which must be delivered to Equibreed Corporation in strict compliance with the time requirements set forth above. If consignor disagrees with purchaser’s veterinary certificate, consignor must, within 72 hours of receiving notice of purchaser’s veterinary certificate, supply a veterinary certificate stating that the horse does comply with the limited warranty in question. In the event of conflicting certificates, Equibreed Corporation shall appoint a third veterinarian whose certificate in these circumstances shall be binding upon consignor, purchaser and all other parties absent fraud or bad faith. The consignor and purchaser acknowledge that the selection process for the third veterinarian hereafter set out is fair and reasonable to each of them. In the event a third veterinarian is elected or used by Equibreed Corporation to settle a dispute, the costs shall be paid by the non prevailing party.
SEVENTH
PAYMENT OF EXPENSES; RESOLUTION OF DISPUTES; WAIVER OF HEARING PROCEDURE; HOLD EQUIBREED CORPORATION HARMLESS:
For all dispute resolutions as provided in these Conditions of Sale, expenses of the panel or third party veterinarian, as applicable, shall be the responsibility of the non-prevailing party. Consignor shall be solely responsible for expenses incurred by him, including his veterinarian, and buyer shall be solely responsible for expenses incurred by him, including his veterinarian. During the period of determining whether the sale shall be rescinded, 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 Equibreed Corporation with the cost of same to be borne by the non prevailing party.
The parties acknowledge that they expressly waive any requirement that the panel or the third party veterinarian, as applicable, 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 Conditions of Sale, which includes the right to assist in the selection of the panel and to submit a written veterinarian report to such panel.
Time is of the essence for all matters as set forth in this and all other Conditions of Sale.
The parties acknowledge that only the conditions set forth in these Conditions of Sale will allow rescission of sale and that rescission hereunder shall be buyer’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 Conditions of Sale, for all such other disputes among consignor, buyer and/or Equibreed Corporation arising out of this sale, including but not limited to, any dispute arising under these Conditions of Sale regarding any alleged defect or nonconformity or breach of warranty of fitness, as may be provided herein, of any horse sold, all interested parties agree that Equibreed Corporation 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 Equibreed Corporation 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, Equibreed Corporation 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 Equibreed Corporation may deem appropriate. Equibreed Corporation 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 Equibreed Corporation, with or without notice to the consignor or purchaser. All such costs and expenses shall bear interest at the Wall Street Journal prime rate as of day of sale, and Equibreed Corporation 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, the parties agree that Equibreed Corporation 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.
Consignor and purchaser agree to hold Equibreed Corporation harmless for any deficiency or loss the consignor and/or purchaser may incur upon the resale of such horse in the event Equibreed Corporation is unable to resell the horse for an amount equal to or greater than the original purchase price.
EIGHTH
TERMINATION OF RIGHTS: Any contractual agreements between the owner of broodmares listed herein for sale and the owner of a stallion at time of breeding do not follow the sale of the broodmare unless otherwise announced at time of sale. The contractual right or option to any stallion to which a broodmare has been bred does not go with the broodmare nor does any possible refund of any stallion service fees accompany the broodmare unless otherwise announced at time of sale.
NINTH
REGISTRATION CERTIFICATES: A faxed copy of the horses Registration Certificate for each horse sold must be furnished by the consignor/seller prior to the sale. Equibreed Corporation will withhold settlement for all deposits, until all Registration Certificates have been delivered to the company. Equibreed Corporation will also withhold settlement of broodmares until the consignor/seller delivers to Equibreed Corporation the stallion service certificate required by The Jockey Club in registering foals.
TENTH
RIGHT OF EXCLUSION/BID REFUSAL: Equibreed Corporation specifically reserves its common law right to exclude any persons whomsoever from the auction and sale system (equibreed.com).
ELEVENTH
LIMITATIONS OF ACTION: Any cause of action arising out of the purchase and sale of any horse, or interest therein at this sale, whether it is based in contract or tort, shall be commenced in not more than six months after the sale. Provided, however, this limitation of action shall not apply to an action for the recovery from the purchaser of the purchase price, plus interest and expenses, and including repossession of any horses purchased at this sale.
TWELTH
GOVERNING LAWS; VENUE AND JURISDICTION; WAIVER OF JURY TRIAL: The laws of The State of Florida shall govern the construction of these Conditions of Sale and the rights, remedies and duties of the parties hereto. In the event of any litigation arising out of these Conditions of Sale or the transactions contemplated hereby, the parties agree that any action or suit shall be brought in a court of record in the County of Seminole, State of Florida, or in the United States District Court for the Central District of Florida, and the parties hereby consent to the venue and jurisdiction of such courts. The consignor, purchaser and Equibreed Corporation and their respective agents, voluntarily and intentionally waive any right that they may have to a trial by jury in respect to any litigation arising from or connected with this Sale.
THIRTEENTH
DISCLAIMER OF IMPLIED DUTIES: Equibreed Corporation shall endeavor to protect the interests of both consignor/seller and purchaser, but the duties and obligations of Equibreed Corporation to such persons shall be strictly limited to those expressly imposed upon Equibreed Corporation by these Conditions of Sale. All other duties and obligations, including fiduciary and other duties which might otherwise be imposed upon Equibreed Corporation by operation of law, are hereby expressly disclaimed, except that Equibreed Corporation shall be required to exercise that standard of care generally exercised by other comparable horse auction and sale companies.
Equibreed Corporation.