GENERAL CONDITIONS OF SALE
GENERAL PROCEDURES AND IMPORTANT AUCTION NOTICES FOR ALL PARTICIPANTS
Equine Exchange is regularly engaged in the business of conducting online timed consignment sales of horses, recognized as “sale management”. These sales provide a public means via live, online video and/or timed auctions, to bring together a Seller/Consignor and a Bidder/Buyer for the purpose of completing the sale of a specified horse. Equine Exchange and representatives thereof, do not act as agent for or represent the Bidder/Buyer or Seller/Consignor, but only provides a medium for bringing together the Bidder/Buyer and Seller/Consignor for the purpose of a sales transaction.
CONDITIONS OF SALE
ALL PROSPECTIVE PARTICIPANTS ARE URGED TO TAKE NOTICE OF AND THOROUGHLY READ THIS DOCUMENT AND THE CONDITIONS OF SALE FOR THE AUCTION PUBLISHED WITHIN THE SALE WEBSITE. All Sellers, Consignors, Agents, Owners, prospective Bidders/Buyers, and all other interested parties and all sales are therefore bound by and subject to the provisions of the Conditions of Sale as set forth below.
EXAMINE HORSES
Buyers must any horse of interest thoroughly PRIOR TO BIDDING OR BUYING. Veterinary assistance is encouraged and is the responsibility of any Bidders. Consignors/Sellers must agree to let prospective Buyers inspect horses up for auction. Any Buyer who fails to obtain a pre-purchase examination does so at Buyer's sole risk and is subject to indemnity obligations because all horses are sold "As Is". All sales are final at the termination of the sales session. BUYERS CANNOT HAVE A VETERINARIAN PERFORM WHAT IS KNOWN AS A COMPLETE PRE-SALE EXAMINATION OF ANY HORSE AFTER PURCHASE.
Horses in this sale may have been subject to surgery(ies) designed to affect permanent changes in physical makeup, which includes, without limitation, transphyseal bridge, periosteal transsection, manipulation and elevation (“Surgeries”). Nondisclosure of such Surgery(ies) shall not be grounds for Rejection (as hereinafter defined) of sale. Should a Purchaser deem this information material, Purchaser should request from Consignor whether such Surgery(ies) has or have been performed and Consignor shall be obligated to respond truthfully to his or her best knowledge, information, and belief. Equine Exchange LLC, andany representative thereof, make no guarantees with respect to any surgery(ies) that may or may not have been performed on any particular horse; anycontractual agreements with respect to any surgery(ies) that may or may not have been performed on any particular horse are strictly between the Buyer and the Seller.
Equine Exchange LLC. Conditions Of Sale
FROM: Equine Exchange LLC (“Equine Exchange”) TO: All Sale Participants – Take Notice
NO. 1 GOVERNING LAW
All horses consigned to the sale are offered in accordance with the laws of the State of Texas andall transactions between Buyer and Consignor/Seller are governed by the laws of the State of Texas.
In the event of any legal dispute between the Buyer and the Seller, Equine Exchange will occupy the position of agent for a disclosed principal and stakeholder and will be discharged from all obligations owing to the Consignor/Seller or Buyer upon delivery of any property or funds held by Equine Exchange to the court having jurisdiction of such dispute.
NO. 2 BUYER REGISTRATION
Every potential Buyer must pre-register prior to bidding. Equine Exchange reserves the right to accept or reject any request for Bidder/Buyer or Seller/Consignor participation on Equine Exchange’s Auction Platform. To participate, please note U.S.currency and a form of positive identification are necessary. All payments are made to Equine Exchange. Approved methods of payment are:
1. U.S. Bank wire transfer (RECOMMENDED)
2. U.S. Cashier’s Check
3. U.S. Cash
4. U.S. Money Order
5. Mastercard, Visa, Discover & American Express
6. U.S. Bank Drawn Pre-Approved Check-All approved checks must be cleared before horses are transported.
NO. 3 BIDDING PROCEDURE
Bidders may participate in a sale by bidding online through Equine Exchange’s Auction Platform, in its sole and absolute discretion. As noted above, Equine Exchange encourages all Bidders to conduct pre-sale exams on any horse on which they may bid. All Bidders agree to these Conditions of Sale and all Announcements as well as such additional terms as Equine Exchange, in its sole and absolute discretion, may require. When making a bid, a Bidder accepts personal liability to pay the purchase price. The highest Bidder shall become the Buyer. Equine Exchange reserves the right to reject any and all bids.
Consignors/Sellers, including their disclosed and undisclosed Agents, possess the right to bid in the sale unless otherwise announced at time of sale. Buyers therefore agree and acknowledge that Sellers have the right to set reserves on horses so entered which are not disclosed to Buyers and also have the right to conduct by-bidding as related to their entries.
In the event of a technology issue (including, but not limited to, malfunctions affecting, or resulting in a temporary inability to use, online bidding platforms, computers, or any similar technological equipment or software) originating with Equine Exchange’s technology (e.g., the Application), Equine Exchange reserves the right, exercisable in its sole and absolute discretion, to temporarily suspend bidding, extend the relevant bidding period, cancel the sale, and/or reoffer the horse affected for sale.
SELLERS, CONSIGNORS, BIDDERS, AND BUYERS CONSENT TO RECEIVE ELECTRONIC MESSAGES PERTINENT TO ANY AND ALL AUCTION BUSINESS VIA TEXT, EMAIL, AND/ORPHONE WHICH MAY BE SENT THROUGH AN AUTOMATIC SYSTEM FROM EQUINE EXCHANGE AND ITS AFFILIATES.
NO. 4 BIDDING DISPUTES
If a dispute should arise between or among two or more bidders, Equine Exchange shall settle the dispute, and Equine Exchange’s decision shall be absolute, final, and binding on all parties. In such a case, Equine Exchange has the right to reopen the bidding procedure and ask for advanced bids, solely between the bidders having claimed the last bid. If there is no advance bid, the horse shall be sold to the Bidder from whom Equine Exchange recognized the final bid. If for any reason the bid should be reduced below the recognized bid at the beginning of such a dispute, Equine Exchange may reopen the bidding to all bidders with the highest bidder becoming the Buyer regardless of whether or not the final bid exceeds the bid which was originally disputed.
Equine Exchange 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 horse, then Consignor shall so notify the Equine Exchange within thirty (30) minutes of conclusion of that sales session. In the event the bidder who had the highest and last bid at the termination of the bidding session fails or refuses to sign the Acknowledgement of Purchase and Security Agreement when presented to said Bidder by Equine Exchange may elect, at its sole discretion, to either re-enter the horse at the same or next available sales session, or withdraw the horse entirely from the sale. Equine Exchange reserves the right to bring suit against said Bidder for the amount of last price at the termination of the bidding session (or any deficiency if resold), plus any other damages, or may, in its sole discretion, assign such right to the Consignor, in which event Equine Exchange shall have no further obligation arising out of the subject horse being entered and going through the auction process. Further, Seller, Consignor, and Bidder agree to hold Equine Exchange harmless for any deficiency or loss incurred by any of them resulting from such action.
NO. 5 SETTLEMENT
To secure the payment of the purchase price and expenses for any horse purchased, together with all other indebtedness owed or hereafter owing by the Buyer to Consignor/Seller, the Buyer grants Consignor/Seller a purchase money security interest and lien in and to each horse and all accounts, contract rights, registration papers, breeder’s certificates, records, general intangibles, proceeds and products relating thereto until Buyer's payment clears the drawee’s bank and becomes unconditional credit.
Settlement for any purchase must be paid in full, including any sales tax which may be due and owing, directly to Equine Exchange within the specified time announced prior to the commencement of the auction. Payment to any other source, including the Seller and/or Consignor,is prohibited and is not recognized as settlement. Settlement for any purchase must be made for the full purchase price with U.S. currency or with funds from a U.S. bank in the form of a bank check, credit card, cash, certified check, or travelers check, all of which must have been approved by Equine Exchange. Equine Exchange will hold payment for 48 hours, and then pay the Seller, less a predetermined commission as payment for the Auction Services.
Equine Exchange will charge a 5% commission to the Seller/Consignor, a 2% fee/commission to the Buyer, and a 4% convenience fee if Buyer uses a credit card to complete the purchase. All commissions will be calculated based on the final purchase price of the horse, exclusive of any taxes or fees. The 5% Seller’s commission will be deducted from the total purchase price for any horse. The 2% Buyer’s fee/commission will be added to the final bid for any horse purchased to determine the total purchase price. A CONVENIENCE FEE OF 4% WILL BE CHARGED FOR ALL CREDIT CARD PURCHASES, TO BE PAID BY THE BUYER AS PART OF THE PURCHASE PRICE.
The Buyer’s Acknowledgement of Purchase and Security Agreement is not transferable without the approval of Equine Exchange. The copy of the Buyer’s Acknowledgement of Purchase and Security Agreement retained by Buyer must be presented by Buyer at the time of settlement. Any person signing a check in the State of Texas is liable for the full amount of the check. Any party issuing a check returned as “insufficient funds” or “payment stopped” or “account closed” or issuing a check that shall for any reason not clear drawee’s bank, is subject to being prosecuted to the full extent of the law and is further subject to all legal and equitable remedies, including interest, court costs, and attorney fees. Appropriate legal services will be obtained in whatever jurisdiction necessary to secure performance of any payment given as settlement and all costs, including attorney’s fees incurred by Equine Exchange, shall be the responsibility of the party issuing such payment. In addition, there will be a $500.00 USD fee for all returned checks, to be paid within one day of the return date of the check.
NO. 6 DEFAULTERS
After successfully winning a bid, the Buyer shall be responsible for the full purchase price, including any applicable sales tax, commissions, and convenience fees, for the horse. Buyers who fail in any respect whatsoever to make settlement as described in Condition No. 5, shall be declared in default.
The Consignor of the horse for which the purchase price is not paid has the option of (1) extending credit to the Buyer and accepting all risk associated with the extension of credit; OR (2) voiding the sale, and requesting the horse be re-offered; OR (3) retaining ownership of the horse. Consignor must decide which of the three foregoing options it elects within thirty (30) minutes of notice to the Consignor by Equine Exchange of non-payment. If the Consignor fails to make its election within said thirty (30) minutes, the horse, in Equine Exchange’s sole discretion, may be re-listed, and then be sold with the prior attempted sale to the Defaulter being voidable by Equine Exchange, which shall be binding on all parties. In the event Equine Exchange, in its sole discretion, then the horse may be resold by Equine Exchange at public or private sale, including on any subsequent day or sales session of the sale in question, without prior notice, for the Defaulter’s account, costs of such sale and attorneys’ fees to be borne by the Defaulter. 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 Equine Exchange shall bear no responsibility therefore. The Seller or Equine Exchange may bring suit against the Defaulter who shall be responsible for all costs, including attorney’s fees, incurred by Equine Exchange in collection of amounts owing enforcement, or interpretation of the sale condition.
NO. 7 TITLE AND DELIVERY
Title passes to the Buyer automatically at the conclusion of the sales session, which is the point in time where bidding has closed online. Responsibility for the horse sold passes from the Seller to the Buyer 48 hours after conclusion of the sales session or when the Buyer takes physical possession of the horse, whichever event occurs first, at which point Buyer assumes all risk of loss and the responsibility, maintenance, care, and expenses for the horse sold.
Title and all risks are assumed by the Buyer whether or not delivery has been made. Delivery of a purchased horse shall be contingent upon the Buyer making a full settlement to Equine Exchange LLC as described in Condition No. 5. Buyers are advised to contact Seller within 24 hours of the conclusion of the sales session containing the purchased horse and confirm that proper care is provided after the sale. Buyer shall provide Seller/Consignor with instructions regarding the destination of the horse(s), which shall be shipped by an interstate common carrier promptly after the sale of the horse(s). Arrangements for transport shall not be made later than 48 hours from time of sale. In the case of horse shipment, Buyer shall assume all costs of and relating to transport upon invoice. Equine Exchange is not responsible for making any transport arrangements.
NO. 8 WARRANTIES / LIMITATION OF LIABILITY
EQUINE EXCHANGE LLC MAKES NO WARRANTIES WHATSOEVER. THERE IS NO WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, BY EQUINE EXCHANGE, CONSIGNOR, OR ANY REPRESENTATIVE THEREOF, AS TO THE SOUNDNESS, PHYSICAL CONDITION, HEALTH, DISPOSITION, MECHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY HORSE OFFERED IN THIS SALE. ALL HORSES ARE SOLD ‘AS IS’ WITH EXISTING CONDITIONS AND DEFECTS. ANY AND ALL GUARANTEES ANNOUNCED ON THE SELLER’S BEHALF IN THE DESCRIPTION ON THE APPLICATION ARE MADE SOLELY BETWEEN THE SELLER AND THE BUYER.
IMPLIED WARRANTY
THERE ARE NO IMPLIED WARRANTIES MADE BY EQUINE EXCHANGE, OR SELLOR/CONSIGNOR AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE OF ANY HORSE. ALL HORSES SELL “AS IS” WITH ALL EXISTING CONDITIONS AND DEFECTS.
Any Bidder who places a bid using the Application expressly acknowledges and agrees as follows: (1) online bidding relies upon technology that may malfunction without warning and through no fault of Equine Exchange; (2) online bidding is being provided on an “AS AVAILABLE” and “AS IS” basis and Equine Exchange does not guarantee continual, uninterrupted, or error free online bidding; and (3) Equine Exchange 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/Buyer who places an online bid shall hold Equine Exchange harmless from any loss or claim resulting therefrom.
All persons using the Application (Sellers, Consignors, Bidders, Buyers) agree to save, HOLD HARMLESS, and INDEMNIFY Equine Exchange LLC, and its respective agents, employees, partners, directors, officers and/or any person or entity acting on their behalf, from and against any and all liability, debt, claims, suits, losses, damages, causes of action, judgments, costs and expenses, including attorney fees, arising or allegedly arising from (i) personal injury or death of any person (including but not limited to employees of Owner or Buyer) or any horse, including but not limited to any claims arising out of injuries or damages caused by the horse after the conclusion of bidding, and (ii) property damage, including loss of use thereof, economic loss or otherwise, arising or growing directly or indirectly out of anything occurring in connection with the sale.
The foregoing indemnity obligations shall apply whether or not the claim or liability in question results or is alleged to result in whole or in part from the sole, concurrent, or comparative negligence or strict liability of Equine Exchange LLC, its agents, employees, partners, directors, officers and/or any person or entity acting on its behalf. Thus, it is understood and agreed that in no case shall Equine Exchange LLC, its employees, agents, directors, partners, or officers be responsible for any loss, death, damage, or injury of any character to any person, animal, or article arising from or occurring during or after the sale.
NO. 9 BROODMARES, RECIPIENTMARES, AND RELATED INFORMATION
Equine Exchange, or any representative thereof, DOES NOT GUARANTEE pregnancy status, eventual foaling, or fertility of any horse offered for sale. Final pregnancy status on broodmares will be announced at the time of sale on the Consignor’sbehalf and will take precedence over printed material in the Application or in advertising. Any contractual agreements between owners of broodmares in the sale and owners of stallions to which these mares may have been bred are strictly between the Buyer and the Seller.
Neither Equine Exchange, nor any pedigree research company, are responsible for providing information as to multiple embryos (foals of the same year) or frozen embryos out of mares or dams in the sale; nor shall they be liable in any way for Buyer’s, or Equine Exchange’s, belated awareness of such information.
NO. 10 ACCURACY OF HORSE-RELATED INFORMATION
The accuracy of all information regarding a particular horse identified on the Application is the sole responsibility of the Consignor. While certain information may have been procured by Equine Exchange from third parties on behalf of the Consignor, it is nonetheless solely the responsibility of the Consignor to verify the accuracy of such information. Equine Exchange or any representative thereof, does not assume any responsibility or liability for errors or omissions, or for any verbal or written statement regarding any horse sold.
EVERY REASONABLE EFFORT HAS BEEN MADE TO ENSURE CORRECTNESS OF THE INFORMATION PROVIDED ON THE EQUINE EXCHANGE LLC PLATFORM. EQUINE EXCHANGE, AND ANY REPRESENTATIVE THEREOF, DISCLAIMS RESPONSIBILITY FOR THE CONSEQUENCES, IF ANY, OF ANY ERRORSAPPEARING ON THE EQUINE EXCHANGE APPLICATION PLATFORM.
Notwithstanding any remedies the Buyer may have as against the Consignor/Seller, in the event of an inaccuracy or mis-description of any horse identified on the Application (including, without limitation, the wrong identity), Buyer agrees that Buyer’s sole remedy as against Equine Exchange, if Buyer has any remedy against Equine Exchange, shall be liquidated damages in the amount of a refund of the commission earned by Equine Exchange, which shall only be applicable upon return of the subject horse to the Seller. Buyer shall have no other remedy as against Equine Exchange, arising out of any such inaccuracy or mis-description of any horse.
In the event Equine Exchange is required to refund the purchase price to Buyer, Equine Exchange may recover said purchase price from Consignor/Seller, if same has been paid by Equine Exchange, to Consignor/Seller. Consignor/Seller and Buyer agree to hold Equine Exchange harmless for any loss incurred by either Consignor, Buyer, or any third party for the inaccuracy or mis-description of any horse identified in the Application.
NO. 11 REGISTRATION CERTIFICATES
All original registration certificates, transfer reports, and/or applicable breeders certificate guarantees, and/or registration applications, must be made available for inspection by the Consignor/Seller prior to the sale. The registration certificates, transfer reports, and/or applicable breeder’s certificate guarantees, and/or registration applications will be held by the Consignor/Seller until Buyer's payment clears the drawee’s bank and becomes unconditional credit. Upon payment clearance, the Consignor/Seller shall make available all applicable paperwork to the Buyer.
NO. 12 BINDING ARBITRATION
If a dispute should arise between Seller/Consignor and Equine Exchange or Buyer and Equine Exchange, all claims, disputes, controversies, differences, or other matters in question arising out of Equine Exchange’s relationship to any party in the matters stated in these Conditions of Sale (the claims) and all other matters in which Equine Exchange has provided any type of services at any time, whether or not those matters are encompassed within this document (including, but not limited to compensation for fees, expenses and/or commissions) shall be settled finally, completely, and conclusively by binding arbitration in Lubbock County, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”), by one or more arbitrators chosen in accordance with the Rules. Arbitration shall be initiated by written demand of the party seeking arbitration.
A decision of the arbitrator or arbitrators shall be final, conclusive, and binding on the parties and judgment may be entered thereon in the District Court of Lubbock County, Texas, to enforce such decision and the benefits thereof. Any arbitration held in accordance with this paragraph shall be private and confidential and no person shall be entitled to attend the hearings except the arbitrator(s), the stenographer, (if one is requested), the parties, and the attorneys for the parties and/ or representatives designated by the parties. The matters submitted for arbitration, the hearings, and proceedings there under and the arbitration award shall be kept and maintained in strictest confidence by the parties and shall not be discussed, disclosed or communicated to any person. On request of any party, the record of the proceeding shall be sealed and may not be disclosed except insofar, and only insofar, as may be necessary to enforce the award of the arbitrators and any judgment enforcing such award. The prevailing party shall be entitled to recover reasonable and necessary attorneys’ fees and the costs of arbitration from the non-prevailing party. All Sellers/Consignors, Buyers, Bidders and attendees 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 auction.
We may amend these Conditions of Sale at any time by posting the revised Conditions of Sale on the Site and Application. We may terminate these Conditions of Sale at any time by suspending or terminating access to the Services and/or notifying you. The Site and Application allow you to place bids, monitor live auctions, and perform other related activities in connection with the Auction House (collectively, the “Services”). Your continued use of the Services after we have posted revised Conditions of Sale signifies your acceptance of such revised Sale Conditions. No amendment or modification of these Sale Conditions will be binding unless in writing and signed by our duly authorized representative or posted to the Site and/or Application by our duly authorized representative.