OF IMPORTANCE TO BIDDERS - Please Read Carefully!
All horses are sold at auction subject to the following TERMS and CONDITIONS which shall control the mutual, reciprocal duties among DSW Enterprises LLC., [Sales Management], the Consignor, and the Buyer.
1. PURPOSE. The purpose of these TERMS AND CONDITIONS is to: a) establish sale procedures, b) facilitate informed bidding, c) provide for orderly settlement of finances in completion of purchases, d) allocate rights, responsibilities, and risks, and e) provide for orderly dispute resolution.
2. PURCHASE. The Buyer is the high bidder recognized by the auctioneer at the fall of the gavel. The right to bid is reserved for all Consignors, as provided by law, unless otherwise announced. If a dispute arises between competing bidders, Sales Management shall immediately re-present the horse for advance bids. If there is no advance, the bidder having the last bid recognized by the auctioneer is the successful Buyer.
3. ACKNOWLEDGMENT OF PURCHASE. Upon the auctioneer's declaration that the horse is "sold" the Buyer shall forthwith sign the "Acknowledgment of Purchase" presented by Sales Management. If a Consignor repurchases a horse by right of reserve, i.e., the reserve is not achieved, Consignor (or Consignor's Designee) shall execute an acknowledgment affirmatively stating "No Sale". Sales Management reserves the right to void a sale and to re-present the horse for sale at auction if: a) the high bidder refuses to execute the Acknowledgment of Purchase or otherwise repudiates or fails to perform according to the TERMS AND CONDITIONS, b) auctioneer or Sales Management identifies a material mistake, or c) the bid is declined by Sales Management due to a non-qualifying bidder.
4. BUYER’S PREMIUM. The Buyer shall pay a Buyer’s Premium of 5% of the final bid to be added to the bid in computing the entire purchase price.
5. PAYMENT. The Buyer shall pay the entire purchase price to Consignor in U.S. funds together with any tax and incidental expenses by wire transfer or credit card. A bank check or certified check is also acceptable. Payment is due within 24 hours. Registration papers and transfers thereof will be held by Sales Management until the funding clears the bank and the entire purchase price and incidental expenses are collected. A charge of $75.00 will be added for any check that is returned for non-payment upon presentation. VISA, MasterCard, and Discover cards are also accepted by Sales Management. The Buyer shall pay any portion of the purchase price, commission, or additional consideration or expenses directly to the Consignor. No form of purchase money financing or extended payments is acceptable unless approved in advance and in writing by Sales Management and Consignor. All Canadian and foreign Buyers must pay via U.S. Bank funds. No drafts or two-party checks will be accepted. Buyer is solely responsible for applicable sales, excise, or transfer tax levied by taxing authorities having territorial jurisdiction. State laws and collection practices vary.
6. PICK UP. Upon authorization from Sales Management, the buyer (or designee) may receive delivery of the horse transportation F.O.B. location of horse (as disclosed by Consignor). Buyer is responsible for pick up within five (5) days; otherwise Buyer is responsible to Consignor for board at $20.00 (dry)/$25.00 (wet) per day.
Upon receipt of full payment, the cashier will issue a paid acknowledgment which must be presented by the Buyer and to the Sales Management authorizing delivery of possession of the horse.
7. NON-QUALIFYING BIDDER. Sales Management is authorized by the Consignor to decline any bid made by a non-qualifying bidder. A non-qualifying bidder is a person who, in the judgment of Sales Management, does not qualify to purchase the horse and to complete the transaction for any of the following reasons: a) lack of financial responsibility including default in payment on a former purchase, b) falsifying information to Sales Management or any Consignor in any way relating to a purchase, including any former purchase, c) intoxication, unruliness, or other conduct which interferes with the progress of the sale, d) lack of contractual capacity, e) repudiation or refusal to comply with purchase requirements, or f) other unacceptable conduct which causes Sales Management to conclude that the bidder is not reliable and responsible.
8. PASSING OF TITLE / RISK OF LOSS. Title passes immediately upon the Buyer's signing of the Acknowledgment of Purchase at which time all risks and responsibility for the horse pass to the Buyer; Buyer thereupon assumes all responsibility and expenses for the horse. If so desired, the Buyer may arrange for insurance (e.g., mortality, major medical, or designated peril) in conjunction with the purchase. Delivery of possession shall not occur until full payment by Buyer and the cashier's issuance of a paid acknowledgment. Each Consignor warrants clear title to the horse to be freely transferable at the time of auction upon compliance with breed association rules. Furthermore, the Consignor has a duty to disclose information regarding any interest holders having a claim or lien which must be satisfied from the proceeds of sale. The Consignor warrants that the Consignor is not subject to any association suspension, or restraining order, judgment, or decree impairing Consignor's authority to transfer ownership and possession.
9. BREACH OF PURCHASE. If the successful bidder (i.e., Buyer) fails to make full payment or otherwise to complete the purchase within the required time, Sales Management or Consignor may declare a breach and the defaulting Buyer shall be responsible for the entire purchase price, sales tax (if applicable), incidental expenses, and any consequential damages incurred by Sales Management or Consignor. In addition the defaulting Buyer shall be responsible for payment of a FINANCE CHARGE to be computed on the entirety of the unpaid purchase price, sales tax (if applicable), and incidental expenses at the rate of one and one-half percent (1-1/2%) per month (18% APR annual percentage rate), commencing on the date of sale. In addition the defaulting Buyer shall be responsible for all expenses of collection, including reasonable attorney fees, board, transportation, farrier, training, conditioning, veterinary expense, and the costs associated with resale of the animal.
10. CONDITION OF THE HORSE. Each Consignor has a good faith duty to provide accurate information about the horse to enable potential bidders to make an informed judgment regarding the horse, and to prevent disputes regarding the condition of the horse. The Consignor has the affirmative duty to disclose with particularity any of the following " Specified Conditions", if known to exist: a) Vices - 1) cribbing, 2) windsucking, or 3) weaving; or b) Unsoundness- 1) chronic lameness or impairment of natural gait regardless of cause, including osteoarthritis of a joint, osteochondrosis dissecans (OCD), bone abnormality, navicular disease, or ringbone, 2) nerving, 3) wobbler, 4) Equine Protozoal Myeloencephalitis (EPM), 5) blindness or functionally impaired vision, 6) laminitis (founder), 7) chronic bleeding, 8) parrot mouth, 9) cryptorchid, or 10) winded condition. For breeding stock Consignor shall additionally disclose, if known to exist, the following: 1) as to a stallion, infertility or permanent incapacity to breed, and 2) as to a broodmare, infertility or other condition which prevents the broodmare from carrying and delivering a viable foal through normal gestation.
It is at the Consignor's option to submit the results of testing for genetic conditions HYPP or HERDA. If submitted, the tested condition will be stated in the catalog and will be announced. Unless disclosed by Consignor the horse must be sold drug free. Any foreign or controlled substance administered to the horse must be disclosed regardless of therapeutic benefit or other purpose, including e.g., phenylbutazone (bute), regumate (progesterone), or acetazolamide. Consignor consents to Sales Management drug testing any horse within thirty (30) minutes after being presented for auction.
The horse must be sold free from contagious disease, or intervening unsoundness or injury unless such supplemental condition is disclosed and announced at the time of the sale. Consignor has a continuing duty to provide information to Sales Management regarding the condition of the horse.
11. SUPPLEMENTAL CONDITIONS. Required to be disclosed by the Consignor, including any changes in condition or corrections to the catalog, or drug administration, will be announced. Supplemental conditions which are announced supersede any conflicting information contained in the sales catalog. The Buyer accepts the horse subject to any conditions disclosed in the catalog or announced as a supplemental condition at the time of sale.
Sales Management does not conduct an independent examination or express an opinion regarding the condition of the animal. Furthermore, puffing by the auctioneer and Sales Management in the course of bidding which is intended to stimulate bidding does not constitute a representation regarding the condition of the horse, or its fair market value, and does not constitute an express warranty concerning the horse.
Each horse is sold with a) a veterinary health certificate in compliance with the regulations of the states of origin and of sale dated within ten (10) days of sale, and b) a current negative Coggins Test certificate (negative for Equine Infectious Anemia (EIA) drawn within 180 days of the sale date).
Bidders are encouraged to inspect horses (with the assistance of the Consignor) prior to the commencement of bidding. Bidders are advised to pay close attention to announcements!
12. SPECIAL CONDITIONS/ PREGNANT BROODMARE. Each broodmare announced to be pregnant the time of sale is accompanied with a veterinary certificate based upon rectal palpation or ultrasound conducted within ten (10) days of sale stating the condition of the mare and the status of pregnancy including a) last breeding date, b) absence of apparent infection in the reproductive tract, and c) any reproductive unsoundness which could compromise the pregnancy or reproductive capacity of the mare. The Consignor makes no further warranty regarding viability of the unborn foal and the Buyer is at risk regarding successful completion of the pregnancy, delivery, condition and development of the resulting foal. Any pregnant broodmare is sold with a paid stud fee and a fully executed stallion service contract with assignment of rights. See, Sales Management prior to auction regarding stallion service contract review in order to determine Buyer rights and responsibilities.
The successful bidder of any horse stated to be a pregnant broodmare may have her examined by a licensed veterinarian acceptable to Sales Management within twenty-four (24) hours after commencement of the applicable sale session and prior to removal from the sale premises. If the conditions are determined to be materially inconsistent with the condition announced at the time of sale, the Buyer shall notify Sales Management forthwith and may revoke acceptance by reason of the non-conforming condition. If there is a dispute regarding the condition of the broodmare or pregnancy, the issue shall be submitted for dispute resolution as provided in paragraph 11. Broodmares sold without a live foal guaranty and without return stallion privileges unless Consignor status otherwise in writing. Produce of live foal is at Buyer’s risk.
13. DISPUTED CONDITION. In the event a dispute arises regarding the non-conforming condition of a horse at the time of sale by reason of non-disclosure of a "Specified Condition" (i.e., vice, unsoundness, or drug presence) required to be announced, or undisclosed illness or injury, the Buyer may have a veterinarian examine the horse to determine its condition. Only those Specified Conditions set forth in paragraph 8 require affirmative disclosure. The existence of any other undisclosed, adverse condition which may nevertheless affect the use, serviceability, or value of the horse does not constitute a basis to revoke acceptance and the Buyer is at risk regarding such condition. An alleged defect or non-conformity must be a material nature to justify revocation of acceptance. If the veterinarian confirms that the horse is non-conforming, the Buyer has the limited right to revoke acceptance and to reject the horse upon strict compliance with the procedures set forth in this paragraph.
In order to revoke acceptance by reason of non-conforming condition of the horse, the Buyer must notify Consignor regarding the non-conforming condition to be stated with particularity within seventy-two (72) hours after commencement of the applicable sale session. TIME IS OF THE ESSENCE. Said Buyer shall forthwith (not later than five (5) days after initial notice) supply Consignor with a report signed from a licensed veterinarian regarding the condition of the horse together with the complete information regarding diagnostic testing and procedures (e.g., blood assay, radiograph, etc.) and the results thereof. The veterinarian's diagnosis of a non-conforming condition shall be: a) stated to a reasonable degree of scientific and medical certainty, and b) supported with the particular basis for the diagnostic opinion. Speculation, conjecture, inconsequential findings, and unsupported opinions are not adequate to justify the revocation of acceptance. A Buyer who does not comply with the procedure has no further recourse and is at risk regardless of the horse's condition at the time of sale. Sales Management may decline a Buyer's attempted revocation if it is: a) not timely, b) not properly supported by a veterinarian's report in required form, or c) if the condition was adequately disclosed prior to or at the time of sale.
Sales Management shall promptly notify the Consignor of the Buyer's attempted revocation and shall supply Consignor with a copy of the veterinarian's opinion and supporting information. The Consignor has a continuing duty to cooperate fully with Sales Management pending resolution of the dispute.
If the Consignor disputes the diagnosis or the basis for the opinion, or that the horse is in any way non-conforming at the time of sale in accordance with the Consignor's stated condition (as announced), Sales Management may appoint a veterinarian (equine practitioner) of its choice to determine the condition of the horse and whether it is non-conforming according to the Buyer's contention. The appointed veterinarian may inspect the horse and may apply such diagnostic testing and procedures as deemed to be appropriate. The appointed veterinarian may also confer with the Consignor and the Buyer and the Buyer's veterinarian, and may review available veterinary medical history including consultation with prior veterinarians having knowledge of the horse, and may review the report and supporting information supplied by the Buyer's veterinarian. The decision of the appointed veterinarian shall be final in all respects and Sales Management shall allow or disallow the revocation of acceptance consistent with the opinion of the appointed veterinarian.
If revocation of acceptance is allowed by Sales Management, the Consignor shall bear the cost of the services of the appointed veterinarian and the Buyer may recover any direct costs for veterinary diagnostic expense, board, transportation, necessary veterinary care, farrier care and the like from Consignor. In addition, the Consignor remains responsible for the entry fee and commission due to Sales Management. Consignor shall forthwith make arrangements to accept delivery of possession and risk of loss passes back to Consignor immediately upon notice of Sales Management's decision to allow revocation by the Buyer.
If revocation of acceptance is disallowed by Sales Management, the Buyer shall bear the cost of services of the appointed veterinarian and shall remain solely responsible for any costs incurred by Buyer in presenting the issue and in conjunction with continued ownership of the horse.
The Buyer has the duty to present the horse for examination with the appointed veterinarian in cooperation with the veterinarian's schedule and has the duty to provide board, necessary farrier and veterinary care, and transportation until the dispute is resolved. If the Buyer unreasonably fails or refuses to cooperate with the dispute resolution procedures including the duty to support the attempted revocation with a veterinarian's report in requested form or to submit the horse for examination by the appointed veterinarian, said Buyer shall forfeit the right to revoke acceptance and shall retain ownership of the horse without further recourse.
14. DISCLAIMER OF WARRANTIES. A Buyer may reasonably expect the horse to conform to the condition as stated by the Consignor in the catalog and as supplemented by announcement at the time of sale, and to be free of any "Specified Conditions" (i.e., vice, unsoundness, or drug presence) which are required to be affirmatively disclosed by Consignor (see paragraph 8) unless such Specified Condition was disclosed. Otherwise, the horse is sold in AS-IS CONDITION and without any warranties. Consignor and Sales Management specifically DISCLAIM implied warranties including any warranty of a) FITNESS FOR THE BUYER'S INTENDED PURPOSE or b) MERCHANTABILITY, which warranties are EXCLUDED under this agreement. Bidders should be aware that the suitability and performance characteristics of any horse are subject to many variables such as conformation, health, state of conditioning, nutrition, use, training techniques, individual compatibility, and so on. Bidders should take into account such variables and the risks associated therewith in making their bidding judgments. Bidders should furthermore be aware that physical injury may occur when handling a horse and the Buyer accepts all risks associated with any potential property damage or injury which may occur to any person, the horse, or other property. The Buyer accepts the sole risk regarding evaluation of the horse for its suitability and its value to the Buyer.
15. REMEDIES/LIMITATIONS. Sales Management, the Consignor, and the Buyer contemplate no consequential or incidental damages unless specifically provided herein. If recoverable, the rate for board (full care in complete facility; exclusive of veterinary hospital) shall not exceed $20.00 per day-dry or $25.00 per day-wet (mare with nursing foal), and the rate for transportation shall not exceed $.50 per mile. Neither Sales Management nor the Consignor shall be responsible for expenses incurred by Buyer which are beyond their respective abilities to control. In no event shall: a) Consignor's liability exceed the purchase price of the horse, together with such damages as are expressly provided for herein, or b) Sales Management's liability exceed the commission. The Consignor and Buyer agree to submit all disputes of whatever kind regarding the condition of the horse to the dispute resolution procedure set forth in paragraph 11, which procedure is mandatory and is a condition precedent to any further claim. If any party breaches its duties as result of the dispute resolution determination, the injured party shall prevail according to such determination and enforce rights of recovery in accordance therewith. The remedies and the damages specified by these TERMS AND CONDITIONS are exclusive and are in lieu of other remedies and damages which may be available according to law. As a material condition of participating in the sale, the Buyer waives other rights, remedies, and damages. All bids are accepted subject to such waiver.
16. TRANSFER OF REGISTRATION. All registration papers will be withheld by Consignor until funds clear the bank and funds are fully collected (an estimated ten (10) days) at which time transfers of registration will be mailed to the applicable breed association (i.e., AQHA or APHA). NOTE: If a Buyer desires transfer to occur on an expedited basis, the full purchase price, sales tax (if applicable), and incidental expenses must be paid with cash, cashier's check, wire transfer, or other form of collected funds acceptable to Sales Management. The Buyer will be responsible for any additional transfer fees and additional costs such as bank charges and courier fees associated with processing the expedited transfer according to Buyer's instructions. The Buyer should notify Sales Management of any special requirements and should provide detailed instructions regarding return of registration papers upon completed transfer. Sales Management does not accept responsibility for any delays encountered by the Buyer in completing the transfer and in making return of registration papers upon completed transfer.
17. RESPONSIBILITY OF SALES MANAGEMENT. The auctioneer and Sales Management are NOT responsible for a) any statements in the catalog concerning the horses listed for sale, b) non-disclosure of any information required to be disclosed by the Consignor, c) non-conforming condition of a horse, d) intervening circumstances or changes in the condition of the horse, e) Consignor's failure to present the horse at auction, or f) premises liability. Statements regarding the condition of the horse are the representation of the Consignors only. Horses listed in the catalog are sold with engagements as listed and as announced at the time of sale. Sales Management has no responsibility for oral representations made by Consignors and others which are not presented by Sales Management in conducting the sale. Potential bidders are encouraged to evaluate any horse of interest and to make an independent judgment regarding its objective value and bidding strategy.
Sales Management will endeavor to state the Consignor's information and pedigrees correctly and to announce any "Supplemental Conditions" provided by the Consignor or corrections at the time of sale. Announcements at the time of sale from the stand take precedence over inconsistent catalog information. The Buyer's sole recourse for: a) non-conforming condition of the horse at the time of sale, or b) errors or omissions of a material nature is with the Consignor who has a continuing duty to present accurate information about the horse.
18. CAUTION! Bidders and spectators are advised to be careful where horses are being handled such as stables, and exercise areas. Sales Management is not responsible for accidents, thefts, premises, and equine liability.
19. TIME. TIME IS OF THE ESSENCE regarding all time limitations and time related duties specified herein which will be strictly enforced by Sales Management.
20. MATERIALITY. All terms and conditions set forth herein are regarded as material and constitute a part of the consideration and inducement to enter into the sales transaction.
21. SEVERABILITY. The unenforceability of any term or covenant of this agreement shall not affect the enforceability of the remaining terms and covenants.
22. CHOICE OF LAW. All horses in this sale are offered according to the law of the state where the sale is conducted. The state of Ohio is the forum where Sales Management has its principal place of business and where the consignments originate. Ohio is therefore a preferred forum for comparative analysis because of its contacts in interstate commerce with sale related activities.
23. TERMINOLOGY. The published rules (in effect at the time of sale) of the applicable breed association should be referenced to determine the meaning and import of horse related terminology.
24. ARIBTRATION. Any claims of whatever kind arising from the auction sale or Terms and Conditions are subject to arbitration according to the applicable rules of the American Arbitration Association in the Greater Cincinnati Ohio area