TERMS & CONDITIONS - INTERNET AUCTION CONTRACT - TERMS LISTED BELOW APPLY TO BOTH SELLER AND BUYER — Professional Horse Services, LLC.
Please read these Terms and Conditions carefully, as they will govern your use of Professional Horse Services, LLC’s (PHS) website and auction services. Those who consign and bid are bound by these Terms and Conditions and the Consignment Contract, as amended by any posted notices, which together form the contract of sale between the successful bidder (“Buyer”), PHS, and the consignor (“Seller”). When consigning or bidding on any horse offered by PHS, the Buyer and Seller indicate acceptance of the following Terms and Conditions. Any participation in the auction binds you to agreement of these Terms and Conditions, whether or not you read or understand said Terms and Conditions. If you do not wish to be bound by these Terms and Conditions, you may not use the PHS website or auction services. All horses are sold are subject to the following Terms and Conditions which shall control the mutual, reciprocal duties among PHS, the Seller and the Buyer.
PLEASE READ THE COMPLETE TERMS AND CONDITIONS OF SALE BEFORE BIDDING. A copy of this contract will be emailed to you following your approval to bid. Please keep a copy for your records. You will be bound by these Conditions whether or not you have read them.
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. AGREEMENT: a) I represent and agree that I am of legal age to form a binding contract. b) I (hereinafter, referred to as Buyer) agree to these terms and conditions, and swear that all the information furnished is true and correct. c) Buyer agrees to be responsible for any purchase made or actions taken by an Agent authorized by me to act on my 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). Buyer agrees that if they have the winning, final bid, or accepted bid in auction subject to Seller Confirmation, the Buyer has entered into a binding agreement to purchase the horse.
3. BUYER’S RESPONSIBILITY: By placing a bid in this auction Buyer is indicating they have examined or researched a horse to their 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.
Prospective bidders should inspect each horse to their satisfaction. Complete health records of each horse are provided in each horse’s sale portfolio and include documentation of all vaccinations, deworming, Coggins test, farrier care, dental care, mild cuts and abrasions, lameness, etc. A veterinary statement will be included for any horses with major surgery or serious illness.
Sale portfolios will be available for inspection at least one week prior to the online auction and will include the horse’s health record and training records. They will be provided to the successful bidder as a reference on their new horse.
4. REPRESENTATION OF HORSE: Seller is responsible for the correct representation of this entry in the entry form, 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 their satisfaction. Seller is responsible for disclosing the following conditions, which must be stated in the online catalog, if this 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, has an altered tail, has received joint injections for lameness or maintenance or has a chronic lameness, regardless of cause, or a lameness due to navicular disorder, ringbone or 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 and Seller agree to hold PHS harmless from any claims arising out of any such inaccuracies or omissions. Seller has a continuing duty to respond to the Buyer after the sale, in the event of a dispute over Seller’s representation of this entry.
Public Inspection: Horses are available for public inspection at The Ohio State University Equine Facility (3658 Kays Road, Dublin, OH) by appointment only. Questions about sale horses can be directed to Dan Rhodeback at (614) 459-4208.
5. 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 sale may have the mare examined by an acceptable veterinarian within five (5) business days from the end of the auction and 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 agreement 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.
6. NO IMPLIED WARRANTIES: There is no warranty expressed or implied by the sales company, 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. Except as stated in Conditions 4 and 5, ALL HORSES ARE SOLD "AS IS" WITH ALL EXISTING CONDITIONS AND DEFECTS. RESPONSIBILITY FOR THE REPRESENTATION OF THE HORSE LIES BETWEEN THE SELLER AND THE BUYER.
Applicable Law: All horses are offered according to the laws of the State of Ohio. There are no warranties or guarantees as to the fitness for any particular purpose(s) of any horse offered in this sale. All known unsoundnesses or vices have been documented, placed in the horse’s sale portfolio, and made available for review before bidding. Every effort has been made to give complete disclosure of all known negative factors (health, disposition, management, etc.) on all horses in the sale. However, no agent of The Ohio State University can or shall be considered responsible for any oversight of a fault. Horses are offered for sale on an “as is” and “where is” basis. All horses are sold "caveat emptor" (Buyer Beware)! All sales are final.
7. 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 4 were not disclosed. The examination must be done within five (5) 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. If a performance or show horse, or prospect for such, is found to be lame at the time of the examination, the sale of the horse can be rejected without further diagnosis. Any purchaser of a broodmare sold in this sale may have the mare examined by an acceptable veterinarian as a part of this limited post-purchase exam as stated in Condition 5. A horse sold with one or more of the issues described herein and in Condition 4, 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 5 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.
8. DRUGS AND MEDICATION - Seller agrees that this entry 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 the 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 must 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 five (5) 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 Professional Horse Services, LLC 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.
9. 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 they will show Seller their 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
10. TRANSPORTATION FROM SELLER TO BUYER: Buyer is responsible for cost and arrangements for transportation of horse from Seller to Buyer. Soon after purchase Buyer will contact Seller directly to schedule removal of horse. All horses must be removed from The Ohio State University Equine Facility by 4:00 pm on Saturday, November 19, 2022, with pick-up times scheduled in advance by appointment. The purchase price must be paid prior to the removal of the horse(s). After the conclusion of the auction and during the stay of the horse, The Ohio State University shall continue to provide all normal care. The Ohio State University students or staff will be available to assist with the loading of the horse(s), but without any liability being accepted for injury or accidents to animal(s), persons or equipment. A $25 a day boarding fee will be assessed for horses left after 4:00 pm on November 19, 2022, plus any other expenses that may be required to maintain the horse during its stay. If the horse is paid for but not picked up within 30 days, ownership of the horse will default back to the The Ohio State University, unless previous arrangements have been made in writing with the The Ohio State University Equine Program.
11. COGGINS REPORT: Seller must provide a copy of a Negative Coggins report drawn within 11 (eleven) months of the closing date of the sale.
12. HEALTH CERTIFICATES: Buyer will be responsible for obtaining the Interstate Health Certificate for transportation.
13. RISK AND RESPONSIBILITY FOR HORSE: Buyer assumes all risk, responsibility and expense for the 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. PHS recommends the buyer obtain Full Mortality Insurance on horses immediately after purchase, however, this decision and risk rest solely with the buyer. After the conclusion of the auction and until the pick-up of horse(s) by owner, neither The Ohio State University, nor its employees, students, officers or agents, shall be liable for any accidents, disease, death or injury to any horse. Nor shall the aforementioned agents be responsible for any accidents or injuries inflicted by the horse on any persons, facilities or equipment.
14. RESERVE AUCTION: This is a Reserve Auction, unless otherwise announced for a specific horse. The right of the seller to bid on their 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 their own personal purchase.
15. DEFINITION OF SELLING OPTIONS:
- Sell with NO RESERVE or Minimum Price: Will sell to the highest bidder.
- Sell at or above a Minimum Starting Bid: Will sell to the highest bidder that meets or bids higher than any minimum opening bid.
- Sell with an undisclosed Minimum Price: Minimum Price not posted. The Seller determines the lowest bid that will be accepted. The bid will be placed in the edje auction system, which will automatically place bids for the seller until the auction is below the reserve bid, the horse is not sold and is retained by the seller.
- Sell Subject to Seller Confirmation: Seller will have 24 hours to confirm and accept the final price following the close of the auction to decide to accept the final bid in the auction. If the seller does not respond the horse will NOT be sold.
16. BIDDING & EXTENDED BIDDING: Bidding will open and close at a specific time and date, which is listed for each 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 their behalf until they have successfully purchased the horse or the asking price exceeds the amount of their maximum bid. 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 their own personal purchase.
17. BIDDING ERRORS: You should make sure to review all bids before and after submitting. If you mistakenly increase your own bid, place your bidder number in the bid field, or make a gross error you must immediately contact the PHS office by email (we must have your request in writing). We may not be able to reverse your bid. You must remain the high bidder. Be aware of increasing your own bids.... some bidders increase their own bid to price an item out of reach of other bidders. We will not reverse bids that have caused another bidder to be outbid. If you bid on the wrong item we will not reverse your bid. Please make sure to immediately review your bid. We will not reverse bids after the auction has begun to close.
18. 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. 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.
19. SALES TAX - Buyers residing in Virginia will be required to pay Virginia Sale Tax of 6%, unless exempt and appropriate forms have been completed.
20. BUYER’S TRANSACTION FEE - Buyers of horses in this auction will pay to PHS in the amount of 3.5% of the total price of any horse purchased. This fee covers costs for electronic financial transactions. This fee will be discounted for purchases paid for by Cashier’s Check, Wire Transfer, or cash.) This fee covers costs for electronic financial transactions. The Seller is not responsible for this fee.
21. DEFAULT ON PURCHASE - If any person shall purchase a horse and not pay for it as prescribed above, PHS or consignor shall have the right to resell the horse or at their 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.
22. 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 Buyers 10 (ten) business days after the close of the auction, the same date that proceeds checks are mailed to Sellers. 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 any buyer desires to obtain papers immediately, the horse or horses must be paid for with cashier’s or Official Bank check, or bank wire.
23. 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"), 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. 2.) If a horse has not been tested for HYPP the seller shall notify PHS of that fact and it will be stated in the catalog.
24. NO GUARANTEE OF SERVICE: PHS, and EDJE.com do not guarantee or covenant that the Auction technology, the edje site or any related services will meet Buyer’s requirements or be uninterrupted or error-free. EDJE.com does not guarantee real-time performance of any service or that it will execute all online or absentee bids.
25. WITHHOLDING FUNDS: Buyer and Seller agree 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 their possession. Otherwise, the Seller and Buyer shall be jointly and severally liable for the same upon demand.
26. DISPUTED CONDITION & BINDING ARBITRATION: In the event of a dispute between the parties, a claim to enforce this Agreement or the allegation of a default, which is not resolved by agreement, the parties waive the right to litigate the issue and agree the matter shall be submitted to binding arbitration, pursuant to the Code of Virginia, using a single arbitrator to be selected by the parties. If the parties cannot agree on the selection of the arbitrator, they shall allow the arbitrator to be designated by PHS The arbitration shall take place in Loudoun County, Virginia, unless mutually agreed otherwise. In any procedures arising out of, regarding or related to this Agreement, the defaulting party shall pay to Professional Horse Services, LLC, any cost, expense and attorney’s fee incurred by Professional Horse Services, LLC in such proceeding, in addition to any amounts awarded in such proceedings in the event Professional Horse Services, LLC substantially prevails. Buyer or Seller may bring no action, regardless of form, including arbitration, more than one year after the cause of action has accrued. Should either party fail or refuse to cooperate upon a demand for arbitration, the arbitrator shall automatically declare the non-cooperative party to be the defaulting party.
27. INDEMNITY: Buyer and Seller release 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 and Buyer agree to fully indemnify PHS from such suit, including legal fees and costs incurred by PHS. Seller and Buyer agree that PHS may publish sale results including information concerning this sale transaction.
28. LIMITS OF LIABILITY: Neither The Ohio State University, its employees, officers or agents assume any responsibility for any injury, death, or damage to a person or animal of any kind. For liability reasons, horses may only be handled and ridden by students in The Ohio State University program. Examine horses at your own risk. The public is cautioned to be extremely careful while on the grounds examining horses and particularly while horses are being ridden. Do not enter stalls or paddocks unattended under any circumstances. A student or staff member will be happy to assist you in viewing the horses. For liability reasons, horses may only be handled and ridden by students in The Ohio State University equine program. 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 or Buyer’s use of the PHS website or service exceed the largest amount of funds held for their benefit.
WARNING: UNDER OHIO LAW, AN EQUINE ACTIVITY SPONSOR IS NOT LIABLE IN DAMAGES IN A TORT OR OTHER CIVIL ACTION FOR HARM THAT AN EQUINE ACTIVITY PARTICIPANT ALLEGEDLY SUSTAINS DURING AN EQUINE ACTIVITY AND THAT RESULTS FROM AN INHERENT RISK OF AN EQUINE ACTIVITY, PURSUANT TO OHIO STATUTE 2305.321.
29. ADDITIONAL TERMS AND CONDITIONS: The Terms and Conditions for the use of EDJE.com, the PHS General Terms and Conditions Of Sale for Buyers as stated on the auction web site and the Consignment Contract for Sellers are hereby incorporated by reference and made part hereof as though fully set forth herein.
30. INTERFERENCE: Buyer and Seller agree not to use any device, software or routine to interfere with or attempt to interfere with the functioning of this online auction.
32. SEVERABILITY - If any provision or portion of a provision of this agreement is held to be invalid or unenforceable for any reason, such provision or portion of a provision shall be struck and the remaining provisions shall be enforced.
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