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
CONDITIONS OF SALE
FIRST - APPLICABLE LAW AND DEFINITIONS: All horses in
this sale are offered according to the laws of the State of California.
BUYER ACKNOWLEDGES THAT CALIFORNIA PENAL CODE SECTION 598c PROVIDES
THAT IT IS UNLAWFUL FOR ANY PERSON TO POSSESS, IMPORT, EXPORT,
SELL, BUY, GIVE AWAY, HOLD, OR ACCEPT ANY HORSE WITH THE INTENT
OF KILLING IT OR HAVING IT KILLED IF HE KNOWS OR SHOULD HAVE
KNOWN THAT ANY PART OF THE HORSE WILL BE USED FOR HUMAN CONSUMPTION.
BUYER WARRANTS AND REPRESENTS THAT NO PURCHASE BY HIM IN CONNECTION
WITH THIS SALE VIOLATES SAID SECTION 598c. 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. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, THIS SALE IS "AS
IS" AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, OF
ANY KIND AS TO ANY DISEASE, INJURY, DEFECT OR OTHER CONDITION
OF BONES OR BONE STRUCTURE OR OF WIND OR RESPIRATORY FUNCTION
OR CONDITION, OR OF ANY DISEASE, INJURY TO OR DEFECT OF WIND.
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, or are afflicted with locomotor
ataxia (wobbler syndrome) must be so announced. Yearlings sold
after July 1 of their yearling year and horses of racing age
which 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. Yearlings
and horses described as a horse of racing age may have radiographs
deposited in Barretts Radiograph Repository (see Important Notices
in the front of your catalog); radiographs are available for
inspection by buyer; Consignor may announce defects in bone,
bone structure or wind which in the opinion of Consignor's veterinarian
are significant. However, no warranty is made by Barretts, Consignor
or the veterinarian as to the authenticity or accuracy of radiographs
or the veterinarian's opinion and no warranty is made that all
defects or conditions, significant or otherwise, will be announced.
Any such announcements that are made shall not constitute a warranty
or binding representation by Barretts, Consignor or the veterinarian
but are provided as an accommodation for preliminary information
only to assist buyer in buyer's investigation and evaluation.
ELEVENTH - NOT APPLICABLE FOR THIS SALE.
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. 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 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,
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 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
IMMEDIATELY UPON REMOVAL OF THE HORSE FROM BARRETTS SALE BARNS,
BUT IN NO EVENT LATER THAN 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 - LIMITED ARBITRATION: (A) Any controversy arising
out of a claim made under CONDITIONS TENTH OR TWELFTH hereof
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. (B) Judgment
upon any arbitration 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. (C) All claims
not arising under CONDITIONS TENTH OR TWELFTH shall not be subject
to arbitration.
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
Delivery Agreement directing such shipment at his risk and expenses
via a licensed carrier to him at that point. Barretts shall deliver
such horse only in accordance with instructions and arrangements
that I shall provide for shipment. 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. Neither
Barretts nor Consignor shall be bound by any oral or written
representation, promise or agreement varying from these Conditions
of Sale unless agreed to in writing Barretts.
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 |
