|Auction Dates/Times:||Start: April 20, 2019 9:00 AM MT
Close: April 24, 2019 7:00 PM MT
TERMS & CONDITIONS - INTERNET AUCTION PURCHASE CONTRACT
35855 Milligan’s Run Lane
1. AGREEMENT: (a) Buyer represents and agrees that Buyer is at least eighteen years of age and is qualified to form a binding contract; (b) Buyer agree to these Terms and Conditions and swears that all the information furnished to PHS is true and correct; (c) Buyer agrees to be responsible for any purchase made or actions taken by an Agent authorized by Buyer to act on Buyer’s behalf; (d) Buyer agrees that this registration to bid is not assignable without the express written approval of PHS; (e) Buyer agrees to make any sale transaction for this entry through PHS; (f) Buyer agrees that if Buyer makes the winning, final bid, or accepted bid in the auction, subject to Seller’s confirmation, the Buyer has entered into this binding Contract to purchase the horse on the Terms and Conditions set forth herein.
2. BUYER’S RESPONSIBILITY: By placing a bid in this auction Buyer is indicating Buyer has examined or researched a horse to his/her satisfaction. Prior to Bidding, Buyers may: (a) ask Seller for additional information, (b) make an appointment with Seller to examine the horse at Seller’s property, (c) arrange with Seller to have a veterinarian perform a pre-purchase examination, or (d) hire an agent or equine professional to inspect and evaluate the horse.
3. REPRESENTATION OF HORSE: Seller is responsible for the correct representation of each entry in the auction, including the description, disclosure form, horse information, riding and training sections of this submission, as well as in communication with potential or eventual buyers. Some representations on disposition and handling are the opinion of the Seller and given only as an indication of the horse’s capability. Buyer should inspect, examine, and research horse to his/her satisfaction. Seller is responsible for disclosing the following conditions, which must be stated in the online catalog, if any entry is a cribber, weaver, is unsound of eyes or wind, has a parrot mouth, is a cryptorchid or ridgling, has had major surgery or a serious illness, has been nerved or has a lameness due to navicular disorder, ringbone, osteoarthritis, founder prior to the sale or other bone abnormality or neurological disorder including, but not limited to, EPM or wobbles. Seller is solely responsible for the accuracy of all information that appears in the online sale catalog and previews. Buyer agrees to hold PHS harmless from any claims arising out of any such inaccuracies or omissions.
4.1 NO EXPRESS OR IMPLIED WARRANTIES: There is no warranty expressed or implied by PHS, sponsors, or Seller, as to the performing soundness, merchantability or fitness for any particular purpose of any horse offered in this sale, other than those made specifically by the Seller. The Seller makes no warranty whatsoever for the Horses set forth in the auction. ALL HORSES ARE SOLD "AS IS" WITH ALL EXISTING CONDITIONS AND DEFECTS. Radiographs are available for specified horses upon request. After completing the Radiograph Request Form, found on the horse’s description page, a digital copy will be emailed to the provided email address. Seller will not offer interpretation of these images. Radiographs are provided as a reference and in no way are a source of warranty.
4.2 BUYER’S RIGHT TO LIMITED POST-PURCHASE EXAMINATION: Buyer has the right to have a veterinarian perform a limited post-purchase examination, at Buyer’s expense, to determine if any of the issues in Condition 3 were not disclosed. The examination must be done within three (3) business days from the end of the auction and before the horse leaves the Seller’s facility. This examination will be limited to moving the horse for soundness on riding horses or show horses of any type, and checking the reproductive tract on breeding horses. Positive reaction to flexion tests and hoof testers does not constitute unsoundness, if the horse is moving sound. Radiographs, flexion tests, and the use of hoof testers are allowed in a pre-purchase examination, but not in the limited post-purchase exam. A horse sold with one or more of the issues described in Condition 3, which was not disclosed at the time of sale can be rejected by the Buyer, upon receipt of a statement from a qualified veterinarian, establishing the existence of the condition, within 3 business days of the date of sale and before the horse leaves the Seller’s facility. If a sale is rejected, the horse will remain the property of Seller.
5. DRUGS AND MEDICATION: Seller agrees that each of Seller’s entries will not be given any drugs to alter soundness or temperament during this auction, including for presentation in videos, inspection by potential buyer, examination by veterinarian or delivery to buyer. If any entry must receive any medication as a result of an injury or illness, to protect the welfare of the entry or maintenance of any condition, this information shall be provided to PHS and be disclosed in the online catalog. Buyer has the right to have a licensed veterinarian draw a blood sample within three (3) business days of the end of the auction and before the horse leaves the Seller’s facility. If the buyer makes a claim of misrepresentation of soundness or attitude and the entry tests positive for a drug that could mask such a problem, the entry can be rejected by the buyer and returned at the Seller’s expense. Notification of a claim by the Buyer under this Condition must be made to PHS within seven (7) days of the date of the sale, by a written statement from a qualified equine veterinarian explaining the diagnosis of any unsoundness or explaining the behavior problem. Any net funds for the horse in the possession of PHS will be held pending the results of the blood screen.
6. TRANSPORTATION FROM SELLER TO BUYER: Buyer is responsible for cost and arrangements for transportation of any purchased horse from Seller to Buyer. Soon after purchase, Buyer will contact Seller directly to schedule transportation of the purchased horse.
7. RELEASE OF HORSE TO BUYER: Seller shall not release a horse to a Buyer until Buyer has made full payment for the horse and funds have been verified. Once bidding concludes, and PHS has collected payment from the Buyer, PHS will send to the Seller and Buyer, a Buyer Confirmation Form (“BCF”). When Buyer or transporter arrives, Buyer/transporter will show Seller his/her copy of the BCF to confirm payment. Buyer or transporter and the Seller will both sign a copy of the BCF and e-mail or fax it to PHS
8. RISK AND RESPONSIBILITY FOR HORSE: Buyer assumes all risk, responsibility, and expense for any purchased horse at the end of bidding or, if sold pending confirmation by Seller, upon confirmation of selling price by Seller. Seller agrees to provide basic board and care for up to 5 days at no additional charge. Beyond 5 days, Buyer will be responsible to pay for board, at a reasonable cost determined by Seller, plus any other expenses that may be required to maintain the horse until Buyer takes possession or has the horse picked up from the seller. Buyer understands that Seller and PHS advise the Buyer to obtain Full Mortality Insurance on horses immediately after purchase, however, this decision and risk rest solely with the Buyer.
9. BIDDING & EXTENDED BIDDING: Bidding will open and close at a specific time and date, which is listed for the auction. Bidding on lots will close every 3 minutes. A SOFT CLOSE bidding system is used. If bids are received within the last 3 minutes on the countdown timer on a horse, an additional 3 minutes will be added on that lot. Only after a 3 minute period passes with no additional bidding will the bidding close. A bidder may place individual bids. Alternatively, a bidder may place maximum (proxy) bids where they declare the maximum dollar amount they want to bid, and the computer will bid on his/her behalf until the bidder has successfully purchased the horse or the asking price exceeds the amount of his/her maximum bid.
10.1 RESERVE AUCTION: This is a reserve auction, unless otherwise announced for a specific horse. The right of the Seller to bid on his/her own horse, through the auctioneer of otherwise, is expressly reserved. The auctioneer, P.H.S, reserves the right to bid, whether it is on behalf of a Seller for any minimums or reserves, as well as for his/her own personal purchase.
10.2. DEFINITION OF SELLING OPTIONS:
11. BIDDING ERRORS: Buyer agrees to be responsible for any of Buyer’s placed bids and to review any placed bid immediately before and after submitting. If Buyer mistakenly increases Buyer’s own bid, places Buyer’s bidder number in the bid field, or makes any bid-related error, Buyer agrees to immediately contact PHS by phone or email. Nonetheless, neither PHS nor Seller have any duty to reverse a bid after it has been submitted. Buyer acknowledges that PHS is conducting an auction, and that practices and strategies associated with auctions may be employed by other bidders.
12. SALES TAX: A Buyer residing in Virginia will be required to pay Virginia Sale Tax of 6%, unless exempt and appropriate forms have been completed. Any other sales tax due in accordance with applicable state laws shall be paid by Buyer.
13. BUYER TRANSACTION FEE: A Buyer of horses sold during the auction will not be required to pay a buyer transaction fee.
14. PAYMENT BY BUYER: Once bidding is closed, an invoice will be emailed to Buyer. Payment in full must be made within (3) banking days after the sale is closed. Buyer shall pay “PROFESSIONAL HORSE SERVICES, LLC” in all cases. Payment may be made in the form of MasterCard, Visa, American Express or Discover credit cards, bank wire transfer, cashier’s or certified check, or valid traveler’s checks. Checks must be made out to “PROFESSIONAL HORSE SERVICES, LLC.” In no case may any part of the purchase price be paid directly to the Seller by the Buyer, as such payment shall not be valid or entitle the Buyer to obtain the horse. A charge of $50.00 will be made on any check that is returned. Buyer agrees not to stop payment on check for any reason.
15. DEFAULT ON PURCHASE: If Buyer shall purchase a horse and not pay for it as prescribed above, PHS or Seller shall have the right to resell the horse or at Seller’s or PHS’s option bring legal action in which event Buyer agrees to pay all cost of such suit together with reasonable attorney fees as fixed by the court. In the event of resale the defaulting buyer agrees to pay all costs of resale and price deficiency, if any. Interest of 1-1/2% per month will be charged on the unpaid balance of any account not paid for as set forth in these conditions.
16. PAPERS: All registration papers will be held by PHS until all payments clear the bank (up to 21 days) at which time they will be mailed, with completed transfer reports to the Buyer. Typically, registration papers are mailed to Buyer ten (10) business days after the close of the auction, the same date that proceeds checks are mailed to Seller. Registration papers may be held by PHS in the event transportation arrangements are not complete, or board fees have been accrued by the Buyer. Papers will be released when a horse has been transported and/or all fees have been paid to the Seller. NOTE: If Buyer desires to obtain papers immediately, the horse or horses must be paid for with cashier’s or Official Bank check, or bank wire.
17. COGGINS REPORT: Seller must provide a copy of a negative coggins report drawn within eleven (11) months of the closing date of the sale.
18. HEALTH CERTIFICATES: Seller will provide a health certificate for all horses leaving the state of Utah.
19. HYPP STATUS: For horses descended from the Quarter Horse stallion IMPRESSIVE, (AQHA Reg. No. 076724): (1) If horse has been tested for HYPP ("Hyperkalemic Periodic Paralysis"), then the Seller shall notify PHS of the results of such test and the results will be stated in the catalog. If not shown on AQHA registration papers, proof of HYPP Status MUST BE sent to PHS with the entry form; and (2) If a horse has not been tested for HYPP, then the seller shall notify PHS of that fact and it will be stated in the catalog.
20. BROODMARES: For mares selling as bred, a veterinarian must check the mare for pregnancy within ten (10) days prior to listing for this sale and a statement of this examination must be provided to PHS If a mare is known to be carrying twins, it must be disclosed. Any purchaser of a broodmare sold in this auction may have the mare examined by an acceptable veterinarian before the horse leaves the Seller’s premises. Any broodmare so examined whose pregnancy status is found not to be as represented in the sale catalog, may be returned to the Seller as unsold, and the Seller shall pay veterinarian’s fee for examination. Any Seller offering mares as being bred with a live foal guarantee or return privileges must furnish PHS, or Buyer, with written acknowledgement of this Contract signed by the stallion owner (or an authorized agent) that such privileges will be honored. If the stallion owner withholds the breeder’s certificate until the foal is born, the Seller must furnish a letter, signed by the stallion owner (or an authorized agent), that such certificate is free of any additional costs and indicate how the mare owner will obtain the certificate.
21. ADDITIONAL TERMS AND CONDITIONS: Buyer and Seller acknowledge that PHS cooperates with EDJEAuctions.com to administer the online auction. Buyer agrees to the terms and conditions found on EDJEAuctions.com.
22. NO GUARANTEE OF SERVICE: Seller, PHS, and EDJEAuctions.com (EDJE Technologies, Inc.) do not guarantee or covenant that the Auction technology, the EDJEAuctions.com site or any related services will meet Buyer’s requirements or be uninterrupted or error-free. EDJEAuctions.com (EDJE Technologies, Inc.) does not guarantee real-time performance of any service or that it will execute all online or absentee bids.
23. WITHHOLDING FUNDS: Buyer agrees that PHS shall not be required to remit to Seller or Buyer, the net proceeds of the sale of any entry which is the subject of a dispute or claim by the Buyer, for misrepresentation, fraud or breach of warranty, until such dispute or claim is resolved and the proceeds of the sale have been received by PHS The responsibility to resolve such a claim lies between the Seller and the Buyer. Notwithstanding any other provision hereof, should a dispute arise between the Seller and the Buyer, PHS may retain its fees and costs and may hold in escrow the balance of any proceeds of sale in its possession, as well as any titles or registration certificates, pending a resolution of the dispute. Any and all legal fees and costs incurred by PHS may be deducted by PHS from the net proceeds of sale still in his/her possession. Otherwise, the Seller and Buyer shall be jointly and severally liable for the same upon demand.
24. INDEMNITY: Buyer releases PHS, Sale Managers, Auctioneers, employees and its representatives, from any and all responsibilities, liabilities, obligations, claims, lawsuits, or legal proceedings arising from the sale of this entry. If legal action is initiated against PHS involving this entry, the Seller agrees to fully indemnify PHS from such suit, including legal fees and costs incurred by PHS. Seller agrees that PHS may publish sale results including information concerning this sale transaction.
25. LIABILITY: PHS shall not be liable for lost profits or any incidental, special or consequential damages whatsoever arising out of or in connection with any sale or transaction. In NO event will the total liability of PHS from all damages, losses, and causes of action resulting from Seller’s use of the PHS website or service exceed the largest amount of funds held for your benefit. Each Party shall be responsible for its own acts and omissions and shall be liable for payment of that portion of any and all claims, liabilities, injuries, suits, and demands and expenses of all kinds that may result or arise out of any alleged malfeasance or neglect caused or alleged to have been caused by such Party or its employees, agents, or subcontractors, in the performance or omission of any act or responsibility of said Party under this Agreement. No Party shall be liable for any special, consequential, lost profit, expectation, punitive or other indirect damages in connection with any claim arising out of or relating to this Contract, whether grounded in tort (including negligence), strict liability, contract, or otherwise.
26. INTERFERENCE: Seller agrees not to use any device, software, or routine to interfere with or attempt to interfere with the functioning of this online auction.
28. CHOICE OF LAW AND VENUE: The Contract will be governed by the laws of the State of Utah, without regard to conflicts of laws principles. Venue for any lawsuits, claims, or other proceedings between the Parties relating to or arising under the Contract shall be exclusively in the State of Utah.
29. GOVERNMENT RECORDS AND MANAGEMENT ACT: PHS and Buyer acknowledge that Seller is a governmental entity subject to the Utah Government Records Access and Management Act, Utah Code Ann., Section 63G-2-101 et seq., as amended ("GRAMA"); that certain records within Seller’s possession or control, including without limitation, the Contract, may be subject to public disclosure; and that Seller’s confidentiality obligations shall be subject in all respects to compliance with GRAMA.
30. GOVERNMENTAL IMMUNITY: PHS and Buyer further acknowledge that Seller is a governmental entity under the Governmental Immunity Act of Utah, Utah Code Ann., Section 63G-7-101 et seq., as amended (the "Act"). Nothing in the Contract shall be construed as a waiver by Seller of any protections, rights, or defenses applicable to Seller under the Act, including without limitation, the provisions of Section 63G-7-604 regarding limitation of judgments. It is not the intent of Seller to incur by contract any liability for the operations, acts, or omissions of Buyer or any third party and nothing in the Contract shall be so interpreted or construed. Without limiting the generality of the foregoing, and notwithstanding any provisions to the contrary in the Contract, any indemnity obligations of Seller contained in the Contract are subject to the Act and are further limited only to claims that arise directly and solely from the negligent acts or omissions of Seller. Any limitation or exclusion of liability or remedies in the Contract for any damages other than special, indirect or consequential damages, shall be void and unenforceable.
31. ASSIGNMENT: No Party may assign, transfer, or otherwise dispose of its rights, interests, or duties hereunder, in whole or in part, to any third party without prior written approval from the other Parties.
32. RELATIONSHIP OF PARTIES: In assuming and performing the obligations of this Contract, the Parties are each acting as independent parties and neither shall be considered or represent itself as a joint venture, partner, agent or employee of the other.
33. MERGER: This Contract embodies the entire understanding of the Parties and supersedes all previous communications, representations, or understandings, either oral or written, between the Parties relating to the subject matter thereof.
34. SEVERABILITY: The provisions of this Contract are severable, and in the event that any provision of this Contract shall be determined to be invalid or unenforceable under any controlling body of the law, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions herein.
BUYER UNDERSTANDS AND ACKNOWLEDGES THAT BY ELECTRONICALLY SIGNING THIS CONTRACT, BUYER IS AGREEING TO BE BOUND BY ITS TERMS AND CONDITIONS.
Transportation is the responsibility of the Buyer. Seller will board the horse for up to 5 days from close of bidding at no additional charge. To Locate a TRANSPORTER go to the Home page of http://www.ProHorseServices.com
Auction managed by:
Professional Horse Services LLC
|Contact:||Professional Horse Services, LLC
Round Hill, Virginia