BIDDERS TAKE NOTICE
This sale is conducted in accordance with, and all acts of
interested parties and/or claims by them shall be governed by
the following
FIRST - APPLICABLE LAW AND DEFINITIONS: All horses
in this sale are offered according to the laws of the State of
California. The Glossary of definitions published in the catalog
for this sale are incorporated herein by reference and are an
integral part of these Conditions.
SECOND - THERE IS NO WARRANTY: EXPRESS OR IMPLIED BY
THE AUCTIONEER, SPONSORS, OR CONSIGNOR, AS TO THE RACING SOUNDNESS,
BREEDING STATUS, BREEDING QUALITIES, FERTILITY, MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY HORSE OFFERED IN
THIS SALE, AND ALL HORSES ARE SOLD "AS IS" AND WITH
ALL DEFECTS EXCEPT ONLY AS EXPRESSLY SET FORTH IN THESE CONDITIONS
OF SALE. BUYER IS BOUND BY ALL ANNOUNCEMENTS FROM THE AUCTION
STAND AT THE COMMENCEMENT OF THE SESSION IN WHICH THE HORSE IS
SOLD AND AT THE TIME OF SALE. NO WARRANTY OR REPRESENTATION MADE
BY BARRETTS OR CONSIGNOR SHALL BE BINDING OR EFFECTIVE UNLESS
CONTAINED HEREIN, CONTAINED IN AN ANNOUNCEMENT FROM THE AUCTION
STAND, OR APPROVED IN WRITING BY BARRETTS.
THIRD - BIDDING PROCEDURE: The right to bid, as provided
under law, is reserved for all consignors unless otherwise announced.
All bidders must be at least 18 years of age and be prepared
to present written proof of age and identity. Unless waived by
announcement, there shall be an upset price on any horse offered
as set forth on page one of this catalog. If an opening bid of
the upset price is not immediately forthcoming to the auctioneer's
call, the horse shall be led out unsold. Minimum, acceptable
increases in bidding are: $100 until the bid reaches $25,000,
and $500, thereafter. The person making the highest bid recognized
by the auctioneer shall be the buyer, who shall forthwith identify
himself to the auctioneer as buyer, and shall sign the Acknowledgement
of Purchase when it is presented. In the event that a person
other than buyer signs the Acknowledgement of Purchase, such
action shall not give such person any right or title to the horse;
and immediately that such erroneous signing of the Acknowledgement
of Purchase becomes known to auctioneer, he shall cause the Acknowledgement
of Purchase to be presented to buyer for signature. Except as
otherwise provided in this CONDITION, the person signing the
Acknowledgment of Purchase shall be personally, jointly and severally
liable as the buyer, regardless of the manner in which the Acknowledgement
of Purchase is signed or whether such signature indicates the
Acknowledgement is signed as an agent and discloses the identity
of a principal, unless the agent has filed with Barretts an approved
Agent Authorization form for this sale, has disclosed the identity
of the principal on the Acknowledgement of Purchase, and is not
also listed on the Acknowledgement of Purchase as principal.
FOURTH - BIDDING DISPUTES: Should any dispute arise
between or among two or more bidders, the auctioneer shall forthwith
adjudicate the dispute, and his decision shall be absolute, final
and binding on all parties. Bids tendered after fall of the hammer
are not valid grounds for dispute. Bids received by bid spotters
have the same stature as bids received by auctioneer. In case
of dispute, the bidding shall be reopened for advance bids, and
if there be no advance bid, the horse is sold to the person from
whom auctioneer recognized the last bid. Advance bidding shall
be restricted to the disputing parties, unless the bid be reduced
below the level of the recognized bid at commencement of dispute,
in which case bidding is reopened to all. The auctioneer reserves
the right to reject any or all bids.
FIFTH - TITLE AND DELIVERY: Title passes to buyer at
fall of the hammer. All risk of injury to the horse becomes buyer's
risk at passing of title. Buyer agrees to release, defend, indemnify
and hold Barretts, and the owners and/or operators of the facilities
and their directors, officers, employees, agents and representatives,
harmless from all losses, damages, expenses, claims, causes of
action and attorneys' fees arising out of or related to the possession,
care, custody, control or maintenance after the fall of the hammer
of any horse on which he or she is the successful bidder, whether
resulting in whole or in part from their own negligence, including
but not limited to any claims arising out of injuries or damage
caused by the horse after the fall of the hammer. The horse will
be held for buyer by consignor until buyer makes settlement as
provided at CONDITION SIXTH below solely as an accommodation
to buyer. Buyer shall immediately present himself to make settlement
if requested by auctioneer, but in any case shall so present
himself within thirty (30) minutes of conclusion of the sales
session in which the horse was purchased. Upon settlement by
buyer, horse will be delivered by means of a "stable release"
provided by undersigned to buyer or his representative. Buyer
or his representative shall present "stable release"
to designee of undersigned to remove horse from sales premises
after taking possession; but in any case taking possession of
the horse by buyer or his representative shall constitute delivery
and acceptance. Buyer shall take delivery and possession of the
horse no later than noon of the day following the sale. Upon
delivery, buyer shall cause horse to be removed promptly from
the Barretts sales barns, or shall be subject to stable charges
as determined by undersigned. In addition, should purchaser fail
to cause horse to be removed promptly, undersigned may cause
horse to be removed from sales premises at buyer's risk and expense.
SIXTH - TERMS FOR SETTLEMENT: Buyer shall make settlement
with cashier of the undersigned. Payments to others, including
consignors or their representatives, do not constitute settlement.
Buyer shall present himself to make settlement as provided at
CONDITION FIFTH above for the full purchase price, such settlement
to be in form of U.S. currency or equivalent acceptable to cashier
of undersigned, unless credit has been extended in advance by
the undersigned. Bidders are cautioned that the fact that they
may have been extended credit at a prior sale does not establish
credit at this sale; they must reestablish credit prior to bidding.
Any buyer to whom credit is extended grants to undersigned a
"Security Interest" in all horses purchased, and their
Jockey Club certificates of registration and in any proceeds,
in the amount of any outstanding sum owed to the undersigned,
and may be required, in the absolute discretion of the undersigned,
to execute appropriate "Financing Statement" and "Security
Agreement". In the event credit is extended, the full purchase
price and all charges shall be due and payable fifteen (15) days
from the date of sale and there shall be applied a finance charge
in the amount of one and one-half percent (1 1/2%) per month
from the date of sale; however, if payment is timely made within
said fifteen (15) days, finance charges will be waived. Buyer's
account will be charged seventy-five Dollars ($75.00) for each
check returned unpaid by buyer's bank for any reason. In no event
shall credit be extended beyond said fifteen (15) days unless
such extension is specifically approved in writing by an authorized
Barretts representative; in the absence of such written approval,
any Buyer with an unpaid balance after fifteen (15) days from
the date of sale shall be in default.
SEVENTH - DEFAULTERS: Should buyer fail to comply in
any respect with CONDITIONS FIFTH and/or SIXTH above, the undersigned
may, in its absolute discretion, pursue any remedy available
against the defaulting buyer, including, but not limited to,
taking possession of the horse, its papers, resale of the horse
at public auction or by private treaty for account of defaulter,
and buyer shall be liable for any deficit in his account, all
costs of maintenance and resale, attorneys' fees, costs of litigation,
and any other damages available to seller by law. Barretts, may
in its sole and exclusive discretion, pay in part or in whole
a consignor despite a default by buyer, and such payment shall
not constitute a waiver of Barretts' right to withhold from any
consignor any amount not so paid. Time is of the essence as to
all of Buyer's obligations including but not limited to matters
involving settlement of his or her account, payment, taking possession
of and removal of the horse from the premises, and warranty and
arbitration claims.
EIGHTH - RIGHT TO INSPECTION: Buyer acknowledges that
he has had the opportunity to inspect and examine, by veterinarian
or otherwise, each horse he has purchased and accepts any horse
he purchases with all conditions and defects except those which
are specifically warranted in these Conditions. Buyer further
acknowledges that he has had the opportunity to inspect the medication
report in the possession of the official state sale veterinarian
pursuant to the California Horse Racing Board regulations set
forth in the catalog.
NINTH - BARRETTS SALES STAKES RACE: The information
set forth in this Catalog regarding Barretts Sales Stakes race
is incorporated herein by reference and is binding upon buyer
and consignor.
TENTH - LIMITED WARRANTIES AS TO SOUNDNESS: Unless
expressly announced from the auction stand, or by official publication
of the undersigned, or as hereinafter provided, there is no guarantee
of any kind as to the soundness or condition or other quality
of any horse sold in this sale. No statement or representation
by Consignor, Barretts, or any of their agents or employees shall
constitute a warranty binding upon Barretts or Consignor; the
warranty provisions authorized by these Conditions of Sale and
announcements from the auction stand shall be exclusive and are
intended to constitute the entire agreement between the parties
as to warranties and the horse's physical condition, and supersede
all prior statements, negotiations and representations. Any horse
whose sexual description is not accurately set forth in the catalog
must be so announced. Horses which have impaired vision or injury
to the eye, are cribbers or are afflicted with locomotor ataxia
(wobbler syndrome) must be so announced. Yearlings sold after
July 1 of their yearling year, horses described as two-year-olds
in training and horses of racing age which, on laryngoscopic
examination, are found to have any defect of wind materially
affecting suitability for racing; have at the time of sale an
injury to or disease of the bone structure which will more likely
than not have a material, chronic and adverse affect upon their
suitability to be trained for racing; are nerved; are currently
on the Starter's, Stewards', or Veterinarian's list at a licensed
race course; or are officially designated as "bleeders"
must be so announced. Buyer acknowledges and agrees that there
are numerous conditions, injuries and diseases which may adversely
affect a horse' suitability to be trained for racing or breeding
for which no warranty is provided. Consignors are obligated to
disclose only those conditions for which a warranty is expressly
provided for herein.
ELEVENTH - WARRANTIES FOR TWO-YEAR-OLDS IN TRAINING:
A two-year-old in training is defined as a two-year-old which,
at the time of sale, shall have been in a training program for
not less than ninety (90) days prior to sale. ANY HORSE SOLD
AS A TWO-YEAR-OLD IN TRAINING, WHICH AT THE TIME OF SALE, HAS
AN INJURY TO OR DISEASE OF THE BONE STRUCTURE WHICH WILL MORE
LIKELY THAN NOT HAVE A MATERIAL, CHRONIC AND ADVERSE AFFECT UPON
ITS SUITABILITY TO BE TRAINED FOR RACING SHALL BE SO ANNOUNCED.
Notwithstanding any other Condition of Sale to the contrary,
any claim made under this CONDITION must be made in writing to
the undersigned at the place of sale within forty-eight (48)
hours after the end of the session in which the horse is sold.
Said written notice shall have a veterinary certificate attached,
describing in detail the specific defect on which the claim is
based. The warranties contained in this CONDITION shall terminate,
regardless of whether forty-eight (48) hours have elapsed, immediately
upon removal of the horse from Barretts sales barns, or use of
the horse "under tack" after buyer or representative
discovers or should have discovered facts indicating there may
exist any condition or claim which would permit return hereunder.
TWELFTH - WARRANTIES AS TO BROODMARES: Unless otherwise
announced there is no representation or warranty as to the pregnancy
and breeding status of any horse described at time of sale as
a horse of racing age. Each mare described as a broodmare or
broodmare prospect in this sale will be offered with veterinary
certificate provided by consignor in a form acceptable to undersigned
setting forth the pregnancy and breeding status of the mare in
the opinion of the examining veterinarian based on manual and
speculum examination within ten (10) days prior to date of sale,
unless so announced. Such a mare whose pregnancy and breeding
status is not as so represented may be returned as unsold pursuant
to CONDITION FOURTEENTH, provided that buyer makes a claim in
writing to the undersigned within twenty-four (24) hours after
the fall of hammer and prior to removal of the mare from the
Barretts sales barns with a veterinary certificate based upon
manual and speculum examination from a veterinarian acceptable
to the undersigned so stating attached, unless such pregnancy
or breeding status has materially changed after the fall of hammer.
Any contractual agreement between an owner of a broodmare in
this sale and an owner of a stallion to which the mare has been
bred, the possible return of a mare to any stallion, or the possible
refund of any stud fee does not go with any broodmare unless
so announced at time of sale.
THIRTEENTH - CATALOG, ANNOUNCEMENTS AND MEDICATION:
Horses cataloged in this sale are offered by the consignor with
the right to convey unencumbered title, the pedigrees, racing
records, eligibility for incentive programs, engagements and
similar matters, breeding status, produce records, breeders of
record, locations where bred, and health and immunization records
as represented by the consignor, and undersigned is not responsible
for the accuracy of information provided. In case of error or
omission, buyer shall seek redress only from consignor. While
certain information may have been procured by undersigned from
third parties on behalf of consignor, it is nonetheless solely
the responsibility of consignor to verify the accuracy of such
information and to notify the undersigned of any corrections
prior to sale. Any horse which the official state veterinarian
has determined to have been medicated must have its medication
accurately set forth in the required medication report to said
veterinarian. Any claim regarding inaccuracy of any such information
not otherwise provided for must be presented in writing to the
undersigned within twenty-one days (21) of the date of sale after
which buyer shall have no right to make any such claims. Time
is of the essence. With respect to any claim regarding identity
or the consignor's right to convey unencumbered title to a horse,
the horse shall be subject to return to consignor with refund
of purchase price and reimbursement by consignor for reasonable
expenses of keep, maintenance, and transportation of the horse
from fall of the hammer, provided that immediately on learning
of such defect, buyer shall forthwith notify undersigned in writing;
buyer's right to return the horse on such grounds shall be on
condition that such horse is returnable in substantially the
same condition as at the fall of the hammer. Consignor shall
have the right, at his sole and absolute discretion, to cure
any defect of identity, title or claims of encumbrances in lieu
of the return provided for herein. With respect to any claim
that the horse is not eligible as announced for any incentive
program, engagement or similar matter, the consignor shall have
the right, in his sole and absolute discretion, to establish
current eligibility. Eligibility for stakes engagements, incentive
programs and similar matters are as of the date of sale only,
and all payments for such eligibility which are due after date
of sale are solely the responsibility of buyer whose obligation
it is to immediately determine when such payments are due and
to promptly notify the proper organization of new ownership to
receive direct billing. Buyers and sellers hereby hold Barretts
Equine Limited and its employees harmless from any responsibility
or liability for the maintenance of Jockey Club Certificates
after six months from the date of sale. Buyer hereby authorizes
Barretts to utilize in its advertising and promotion the name,
photograph, likeness and related information regarding buyer
and any horse(s) buyer purchases in this sale. As an accommodation
to consignors and buyers, Barretts provides timing information
for previews and workouts. While Barretts uses its best efforts
to accurately time and report performances, Barretts cannot guarantee
such accuracy. Buyer and consignor have the right to engage a
clocker or otherwise determine or verify the timing of any performance,
and hereby release Barretts and its employees, representatives
and independent contractors from any liability or claims arising
out of or relating to the timing or filming of any workouts or
performances and the reporting thereof, whether based upon their
own negligence or otherwise. The remedies of buyer set forth
herein shall be his sole and exclusive remedies against undersigned
and consignor with respect to such claims, and neither undersigned
nor consignor shall be liable for any further or consequential
damages other than those set forth herein.
FOURTEENTH - RIGHT OF RETURN: Any horse sold in this
sale whose condition must be announced as provided for at CONDITIONS
TENTH, ELEVENTH, TWELFTH and THIRTEENTH above, and is not so
announced, shall be subject to return to consignor with refund
of purchase price and reimbursement by consignor for reasonable
expenses of keep, maintenance, and transportation of the horse
from fall of the hammer, provided that immediately on learning
of such defect, buyer shall forthwith notify undersigned in writing
and provide veterinary certificate as to the condition based
on examination within the applicable warranty period.
All warranties terminate seventy-two (72) hours after the
last sales session, unless specifically otherwise provided herein,
after which buyer shall have no right of return under this CONDITION.
In addition, all warranties on any horse of racing age, except
those contained in CONDITION THIRTEENTH, terminate immediately
that such horse starts in a race, regardless of time elapsed
since date of sale. Further, any use of any horse of racing age
"under tack" after buyer or his representative discovers
or should have discovered facts indicating there may exist any
condition of such horse which would permit its return as provided
herein, shall void all right of return and terminate all warranties.
Time is of the essence in these provisions. The right of buyer
to return the horse as provided herein shall be his sole and
exclusive remedy against undersigned and consignor with respect
to warranties, and neither undersigned nor consignor shall be
liable for any further action or consequential damages other
than those set forth herein. Regardless of whether a warranty
or other claim is made, Barretts shall be entitled to pay the
sale proceeds to Consignor. In any event, Barretts shall not
be liable to Buyer for sale proceeds or any other amounts; Buyer
shall look solely to Consignor for any amount to which Buyer
is entitled including but not limited to purchase price, sales
tax, reimbursement of expenses, interest or damages of any kind.
FIFTEENTH - ARBITRATION: (A) Any controversy arising
out of a claim made for a sale session of two-year-olds in training
under CONDITIONS TENTH or ELEVENTH shall be settled by arbitration
between the parties as follows: Simultaneously with the presentment
of a claim to Barretts, buyer shall, personally or through his
or her authorized representative, based upon an examination of
the Two-Year-Olds in Training Veterinary Arbitration Panel ("PANEL")
member list for said sale at the Barretts Sales Office, in writing
notify Barretts of any member of the PANEL which he or she seeks
to disqualify on the ground that the member has a direct financial
interest in the purchase or sale of the subject horse, or is
otherwise biased in favor of or against either party, specifically
identifying the basis of such challenge. Upon Barretts' determination
that a claim has been timely and properly presented by buyer,
Barretts shall notify the consignor of the claim, and consignor
shall forthwith similarly notify Barretts in writing of any such
challenge he or she may have to any PANEL member on said grounds.
Barretts shall, in its sole discretion, determine the validity
of any such challenge, and shall appoint members of the PANEL
to arbitrate the claim. Barretts shall determine the number of
members who shall arbitrate a claim, but shall appoint at least
three (3) members if the sale price, exclusive of any sales tax,
is $100,000.00 of more. The appointed members shall determine
the claim (by majority if there is more than one arbitrator)
and the arbitrators may engage such consultants and conduct such
investigation, tests and examinations as they seen fit. The arbitrators
shall determine the claim and shall all sign notice of such determination,
which signatures shall indicate that the majority of such arbitrators
joined in such determination. The undersigned shall determine
the amount of reimbursement due to a buyer whose claim is found
to be valid, and may, in its discretion, conduct a hearing to
do so; and such determination shall be incorporated in the award.
In addition, the non-prevailing party shall pay Barretts the
sum of $750 toward reimbursement of the cost of arbitration,
plus any additional costs incurred by the arbitrators in determining
the claim. Barretts may augment the list of PANEL members if
it deems such action appropriate, and upon such notification,
the parties shall notify Barretts of any challenge on the grounds
set forth above to any new PANEL member. In the event of a claim
to which this Condition Fifteenth (A) applies and which is based
upon Condition Eleventh relating to a horse for which the consignor
has submitted appropriate radiographs to the Radiograph and Laryrngoscopic
Videotape Library (see "Important Notices" contained
in your catalogue), then the warranty provisions and procedure
specified by these Conditions shall be modified in the following
respects only: the Panel shall make an initial determination
as to whether the radiographs disclose the condition upon which
the claim is based; if the Panel determines the condition is
so disclosed, then a determination of the Panel that the claim
is valid (and the horse is subject to return) may be made only
if the Panel also determines (1) that the horse has an injury
to or disease of the bone structure and (2) such injury or disease
will to a medical certainty have a material, chronic and adverse
effect upon its suitability to be trained for racing. (B) Any
controversy arising out of a claim made under CONDITIONS TENTH
or TWELFTH hereof other than at a sale session of Two-Year-Olds
in Training shall be settled by arbitration between the parties
as follows: Upon the sales company's determination that a claim
has been timely and properly presented by buyer, and upon notice
from the sales company, the buyer and the consignor shall each
select a licensed veterinarian specializing in equine medicine.
If the veterinarians fail to agree as to the validity of the
claim, they or their principals shall agree upon a third licensed
veterinarian and the panel of three shall conduct any tests,
investigation or examinations that they deem necessary, and shall
determine the validity of the claim. If the two veterinarians
or their principals are unable to promptly agree upon the third
veterinarian, the undersigned shall appoint one. The third veterinarian's
fee and costs shall be paid by the party whose property the horse
is determined to be. The undersigned shall determine the amount
of reimbursement due to a buyer whose claim is found to be valid,
and may, in its discretion, conduct a hearing to do so; and such
determination shall be incorporated in the award. (C) Any other
claim or controversy between a consignor, buyer and/or the undersigned
arising out of or relating to this sale, or any agreement, consignment
or horse in relation to this sale, shall be settled by arbitration
between the parties in accordance with the rules of the American
Arbitration Association; the Association shall utilize for its
proposed panel members only former Judges. (D) Arbitration shall
take place in Los Angeles, California. Judgment upon any award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof, and petitions to confirm or vacate any
such award may be served by certified mail. In the event of any
arbitration or litigation, the prevailing party will be entitled
to reasonable attorneys' fees and legal costs. No party shall
be liable for consequential or special damages except as specifically
set forth herein. Barretts shall be entitled to recover any costs
or expenses incurred in connection with the care and maintenance
of the subject horse, including but not limited to the third
veterinarian's fee, along with its attorneys' fees and legal
and arbitration costs.
SIXTEENTH - SALES TAX: If buyer intends to ship any
horse he purchases out of state or out of county, he agrees to
sign and deliver to auctioneer prior to sale a Pre-sale Interstate/Intercounty
Delivery Agreement directing such shipment at his risk and expenses
via a licensed carrier to him at that point. Auctioneer shall
deliver such horse only to a licensed carrier for such shipment
directly. Buyer acknowledges that to qualify for a sales tax
exemption, such horse MAY NOT BE TRAINED OR OTHERWISE USED IN
CALIFORNIA while awaiting shipment out of state. Should sales
tax be imposed on any purchase for any reason, buyer will be
solely responsible for such sales tax and will pay it upon demand.
SEVENTEENTH - AGREEMENT: These Conditions of Sale,
the Acknowledgement of Purchase and any documents incorporated
herein or concurrently executed shall constitute the entire agreement
between the parties hereto with respect to the subject matter
hereof and shall supersede all prior agreements, understandings,
warranties, representations and negotiations of any party herein,
including but not limited to Barretts, the buyer and the Consignor,
concerning the subject matter hereof. None of the terms and conditions
set forth herein made shall be modified or waived except as approved
in writing by Barretts and the party affected thereby. Barretts
shall not be bound by any oral or written agreement or alleged
agreement varying from these Conditions of Sale between the buyer
and the consignor unless agreed to in writing Barretts, and any
controversy or claim between the buyer and the consignor arising
under any such agreement shall be a matter for their resolution
by settlement, litigation, arbitration or otherwise as they determine.
EIGHTEENTH - SEVERABILITY: If any provision of these
Conditions of Sale is held to be illegal or invalid, such illegality
or invalidity shall not affect the remaining provisions of these
Conditions of Sale, and they shall be continued and enforced
as if such illegal or invalid provision had never been inserted
herein.
NINETEENTH - LIMITATIONS OF ACTION: Any action or proceeding
arising out of or related to these Conditions of Sale or the
purchase of a horse in this sale must be commenced within one
(1) year after the date of the sale, regardless of when the facts
giving rise to the claim are discovered; provided, however, that
such limitation shall not apply to any action by the undersigned
against buyer for purchase price, foreclosing a lien or other
damages.
BARRETTS EQUINE LIMITED |
