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January Mixed Sale 2006
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This sale
is conducted in accordance with, and all acts of interested parties and/or
claims by them shall be governed by the following CONDITION
OF SALE FIRST - APPLICABLE LAW, DEFINITIONS AND NOTICES: All consignors, agents, bidders/buyers, or interested parties, and all sales, are subject to, and governed by, these Conditions of Sale ("CONDITIONS"). All horses in this sale are offered and sold according to the internal laws, and procedural rules, of the state of California, without regard to conflict of law principles. The Glossary of Definitions, and all Notices (including but not limited to “Registration and Payment Procedures”) contained in this Catalog are incorporated into, and are, an integral part of these CONDITIONS.
SECOND - THERE ARE NO IMPLIED WARRANTIES; ONLY LIMITED WARRANTIES GIVEN BY CONSIGNOR: THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS GIVEN BY BARRETTS (OR ANY OF ITS OWNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SPONSORS OR INDEPENDENT CONTRACTORS), THE AUCTIONEER, ANY CONSIGNOR OR ANYONE ELSE CONCERNING OR PERTAINING TO ANY HORSE OFFERED FOR SALE OR SOLD IN THIS SALE, INCLUDING, BUT NOT LIMITED TO, AS TO THE SOUNDNESS; CONDITION; SUITABILITY TO BE TRAINED, RACED OR BRED; PREGNANCY; BREEDING STATUS; BREEDING QUALITIES; FERTILITY; MERCHANTABILITY; FITNESS FOR ANY PARTICULAR PURPOSE; OR ANY OTHER QUALITY OR ATTRIBUTE OF ANY HORSE. ALL HORSES ARE OFFERED AND SOLD "AS IS" AND WITH ALL FAULTS AND DEFECTS, EXCEPT FOR ANY APPLICABLE LIMITED WARRANTIES GIVEN BY THE CONSIGNOR THAT ARE SET FORTH IN CONDITIONS EIGHTH, NINTH, TENTH, ELEVENTH OR TWELFTH HEREOF. BUYER AND CONSIGNOR ARE BOUND BY ALL ANNOUNCEMENTS FROM THE AUCTION STAND AND ALL STATEMENTS MADE IN ANY OFFICIAL BARRETTS PUBLICATION. No promise, representation or statement other than contained in, or incorporated into, these CONDITIONS, or in an announcement from the auction stand authorized by these CONDITIONS, shall be effective or relied upon by buyer in connection with buyer's purchase of any horse. All announcements from the auction stand made on behalf of the consignor may be subject to review by Barretts. Barretts shall have the right, in its sole and absolute discretion, to refuse to make any announcement requested by the consignor or any other person, and Barretts shall have no responsibility or liability for the refusal or failure to make any announcement, or for the timing or contents of any announcement made. Buyer acknowledges and agrees that there are numerous conditions, injuries, diseases, medical procedures, and other matters affecting horses, including, but not limited to, the horses' suitability to be trained to race, to be raced or to be bred, for which no warranty is provided in these CONDITIONS. The identity of the owner of any horse being sold is not warranted under these CONDITIONS, or is a matter on which a buyer should place any reliance upon in deciding to purchase any horse. The duties and obligations of Barretts to buyer and consignor are strictly limited to those expressly imposed upon Barretts by these CONDITIONS. All other duties and obligations, including, but not limited to, any fiduciary duties or other duties which might otherwise be imposed upon Barretts by operation of law or otherwise, are hereby expressly disclaimed, waived and relinquished by buyer and consignor. THIRD
- BIDDING PROCEDURES: Consignors, including their disclosed and undisclosed agents,
may bid on the horses they offer for sale, unless otherwise announced
from the auction stand or prohibited by law. Consignors have the right to set reserve bids and the right
to conduct buy-bidding on any horse they offer for sale. All bidders must be at least 18 years
of age and must have in their possession written proof of age and identity.
There shall be an upset price with respect to each horse offered
for sale. If an opening bid of the upset price is not immediately forthcoming
to the auctioneer's call, the horse shall be led out of the sale ring
unsold. Minimum increases
in bidding are: $100 until the bid reaches $20,000; $500 (or greater amount
established by the auctioneer) on bids over $20,000. The person making the highest bid recognized by the auctioneer
shall be the buyer, who shall forthwith identify and present himself or
herself to the auctioneer or Barretts as the buyer, and shall immediately
fully complete and sign the Barretts' form of Acknowledgment of Purchase. In the event the person making the highest
bid recognized by the auctioneer fails or refuses to immediately identify
and present himself or herself, complete and sign the Acknowledgment of
Purchase or immediately pay for a horse upon request made from the auction
stand: (1) Barretts may elect, in its sole and absolute discretion, to
either re-enter the horse at the same or next available sales session,
withdraw the horse entirely from the sale, or resell the horse at public
or private sale without prior notice, and Barretts shall have no liability
for such election or action; and (2) such person shall be liable for the
amount of the hammer price (or any deficiency if the horse is resold),
plus any taxes and any other damages in an arbitration brought by the
Consignor. In the event that a person other than buyer signs the Acknowledgment
of Purchase, such action shall not give any such person any right, title,
or interest to the horse, and the same shall not alter any of buyer's
obligations under these CONDITIONS. Any person signing an Acknowledgment of Purchase, including
as agent for buyer, is jointly and severally liable with buyer to perform
all of the obligations of buyer under these CONDITIONS, unless (i) such
person has prior thereto signed and filed with Barretts for this sale
a Barretts' agent authorization form (or personal letter of authorization
containing all pertinent information), accepted by Barretts in its sole
and absolute discretion, and agent has disclosed the identity of such
principal on the Acknowledgment of Purchase and is not listed on the Acknowledgement
of Purchase as a principal and (ii) regardless of the foregoing, the agent's
principal either has credit approved by Barretts or fully pays for the
horse as required by these CONDITIONS.
An agent's authorization form or letter must be submitted and accepted
for this sale; prior acceptance or acquiescence by Barretts shall not
be effective or create any precedent for this sale and in the event that
Barretts accepts an agent authorization form or letter which is later
found to be invalid, such acceptance shall not be effective for any purpose
whatsoever. Buyer, consignor and all attendees at
the sale each authorize Barretts to utilize in Barretts' advertising or
promotions, his or her name, photograph, likeness and related information
or the name, photograph, likeness and related information of any horse
offered or purchased. FOURTH
- BIDDING DISPUTES: The auctioneer shall decide all disputes over, and all other
matters pertaining to, bidding, and the auctioneer's decision on all such
matters shall be final and binding.
Barretts or the auctioneer shall have the absolute right to refuse
the opportunity of any person to bid or to refuse or reject any or all
bids. Bids tendered after the fall of the hammer
are not valid. Bids received
by bid spotters have the same status as bids received by the auctioneer.
If in the case of a dispute, bidding is reopened by the auctioneer
for advance bids, and if there is no advance bid, the horse is sold to
the person whom the auctioneer previously recognized as making the last
bid. Advance bidding shall be restricted to the disputing parties,
unless the bid is reduced below the level of the last recognized bid at
commencement of the dispute, in which case bidding shall be reopened to
all. FIFTH
- TITLE; ASSUMPTION OF RISK; RELEASE; INDEMNIFICATION: (A)
Title of a horse immediately passes to buyer at the fall of the
hammer for the horse, at which time buyer shall be solely liable for the
care, custody, control and security of the horse and for any and all expenses
relating to the horse. (B)
Buyer assumes all risk of injury, illness or death of the horse
purchased, commencing from the fall of the hammer for the horse. Buyer releases, discharges, waives and relinquishes any and
all claims, liabilities, damages or losses of any nature whatsoever buyer
has, may have or hereafter may have against Barretts, the owners and/or
operators of the sales facilities, premises or grounds, and each of their
respective directors, officers, partners, shareholders, owners, employees,
representatives, agents, sponsors or independent contractors (jointly
and severally the “Barretts Released” throughout these CONDITIONS)
from, or arising out of, any description, identification, accident, sickness,
disease, theft or death of any horse (and any in utero foal) purchased
wherever or however the same may occur, including but not limited to,
any description, identification, injury, accident, sickness, disease,
theft or death by reason of or caused by, whether in whole or in part,
any alleged passive or active negligent or grossly negligent act, omission
or conduct by or of any of the Barretts Released.
(C)
Buyer agrees to defend, indemnify or hold the Barretts Released
harmless from any claim, liability, damage or loss caused or contributed
by, whether in whole or part, any horse purchased, arising after the fall
of the hammer, including but not limited to, all reasonable expenses and
attorney's fees incurred by the Barretts Released in defending all such
claims, liabilities, damages or losses.
The defense of the Barretts Released shall be with counsel chosen
by the Barretts Released, but paid for by buyer.
The Barretts Released shall be defended, indemnified and held harmless
regardless of whether any claim, liability, damage or loss is caused or
contributed to, by the passive or active negligent or grossly negligent
act, omissions or conduct by or of any of the Barretts Released. SIXTH
- PAYMENT; DELIVERY; SECURITY INTEREST; DEFAULTING BUYERS:
(A) Buyer
shall make payment, without offset, for the full purchase price, plus
any applicable sales or use tax, solely to Barretts, in the form of U.S.
currency or equivalent acceptable to Barretts in its sole and absolute
discretion. Remittances to
any person or entity other than Barretts shall not constitute payment.
Unless credit has been granted to buyer by Barretts for this sale,
buyer shall fully pay for any horse purchased no later than thirty (30)
minutes after the conclusion of the sale session at which the horse was
purchased. In the event buyer does not pay for a horse in full when payment
is due, buyer shall pay Barretts a finance charge, on all unpaid amounts,
at the maximum legal rate, not to exceed one and one‑half percent
(1Ω%), per month beginning on the date of purchase, together with
all reasonable attorneys' fees and costs incurred by Barretts in collecting
any such unpaid amounts. A
horse shall be delivered to buyer only by means of a Barretts' “delivery
order” and no “delivery order” shall be issued, and
no horse shall be removed from Barretts' sales premises, until buyer fully
pays for the horse, or otherwise settles buyer's account to Barretts'
satisfaction. Buyer must take possession of the horse
no later than noon on the day following the sale of the horse and shall
remove the horse from Barretts' sales premises promptly thereafter. In the event buyer fails to do the foregoing,
Barretts may, in its sole and absolute discretion, but is not obligated
to, maintain, treat, care for or board the horse, at locations selected
by Barretts, all at buyer's sole expense and risk and without liability
whatsoever to Barretts, and buyer shall pay Barretts all costs and expenses
incurred by Barretts relative to the horse, from the fall of the hammer. Buyer agrees that no bailment by Barretts
is established with respect to any horse purchased and that in all actions
against Barretts, buyer shall have the burden of proof of establishing
any claim, liability, damage or loss.
Buyer agrees that consignor holds any purchased horse, from the
fall of the hammer for the sale of the horse until buyer takes delivery
and possession of the horse, gratuitously and solely as an accommodation
to the buyer. (B)
Buyer grants to Barretts a “Security Interest” in all
horses purchased by buyer, in any Jockey Club Registration or Stallion
Service Certificate for such horses, and any foals, products or proceeds
of such horses, in the amount of any outstanding sum owed to Barretts,
whether for this sale or otherwise, and buyer authorizes Barretts to sign
any “Financing Statement” or “UCC-1" form as buyer's
agent. (C) Time is of the essence as to all of buyer's obligations under these CONDITIONS, including, but not limited to, making payment, taking delivery and possession of horses, removing horses from Barretts' sales premises, and asserting warranty and arbitration claims. Barretts shall determine if a warranty claim has been timely and properly made and that determination shall be final and binding. Should buyer fail to comply in any respect with buyer's obligations under these CONDITIONS, Barretts may, in its sole and absolute discretion, pursue any remedy available against buyer, including, but not limited to, taking possession of any horses (and/or their foals) purchased by buyer, taking and maintaining possession of any Jockey Club Registration or Stallion Service Certificates for any such horses, or reselling any such horses at public auction or by private treaty, without prior notice, for account of buyer, with buyer remaining liable for any deficit, and for all costs of maintenance and resale, together with all reasonable attorneys' fees, and legal or other costs. Barretts shall have the right to withhold delivery of all Jockey Club Registration and Stallion Service Certificates for any horse purchased until such time as buyer's account with Barretts, whether for this sale or otherwise, has been paid in full. Barretts may, in its sole and absolute discretion, pay all or part of the purchase price of a horse to a consignor despite any default by buyer (and in such event, the amount paid by Barretts shall be owed by buyer to Barretts) or to withhold such payment from consignor. Buyer shall pay to Barretts a seventy-five dollar ($75.00) fee for each check returned unpaid for any reason.
SEVENTH
- RIGHT OF INSPECTION: Buyer acknowledges that buyer has had, to the full extent desired,
an opportunity, prior to purchase, to inspect and examine, by a veterinarian
or otherwise, each horse purchased; the medication report, if any, in
the possession of the official state sale veterinarian; and radiographs
or other information, if any, deposited in Barretts' Repository. Barretts will not review, and shall have
no liability for, any radiographs (including any deposited in Barretts'
Repository) or any health, immunization, medication or other records for
any horse sold, the authenticity, sufficiency, quality, completeness and
accuracy of the same shall be the sole responsibility of consignor. All items, including radiographs and videotapes,
placed by consignor in the Barretts' Repository are the sole property
of consignor (or the consignor's veterinarian, as the case may be).
However, Barretts may elect to hold any or all such items on behalf
of consignor in the event of a dispute or claim concerning a horse and
consignor shall have the right to pick up at Barretts sales premises such
items upon the resolution of the dispute or claim.
Barretts shall be entitled to destroy or otherwise dispose of,
without any liability, all items, including radiographs and videotapes,
placed in Barretts' Repository 30 days after the end of the sales session
at which a horse was sold. EIGHTH
- LIMITED WARRANTIES AS TO SOUNDNESS;48 HOURS: (A) Unless
otherwise announced from the auction stand, or stated in an official Barretts
publication, consignor warrants for any horse sold by consignor that:
(1)†the horse's sexual description as set forth in the Catalog
is accurate; (2) the horse at the time of sale has no impairment of vision
or injury to the eye that materially affects its suitability for its intended
purpose; and (3)†with respect to any horse sold after July 1 of
its yearling year (breeding stock excepted) that: (i)†the horse,†on laryngoscopic examination, does
not at the time of sale have any defect of wind materially affecting its
suitability for racing; or (ii)†the horse does not at the time of
sale have any injury to or disease of the bone structure which will more
likely than not have a material, chronic and adverse effect upon its suitability
to be trained for racing. (B) Any
horse that is not as warranted as provided in (A) of this CONDITION may
be returned to consignor pursuant to CONDITION THIRTEENTH, provided Barretts
actually receives written notification, and all supporting documentation
of buyer's claim, including, but not limited to, a veterinary certificate,
not later than FORTY-EIGHT (48) hours after the end of the sales session
at which the horse was sold and in the event buyer fails to do so, buyer
shall have no right to make any claims for such warranties. In all events, the warranties under this
CONDITION shall immediately terminate, and buyer shall have no right to
make any claim under them, if the horse is removed from Barretts' sale
premises; the horse is used “under tack” after buyer or any
representative of buyer knew, or should have known, any fact or circumstance
indicating that the horse was not as warranted in this CONDITION; or if
the horse starts in a race. NINTH
- RADIOGRAPHS DEPOSITED--LIMITED BONE WARRANTY FOR “TWO YEAR OLDS
IN TRAINING” SALE SESSIONS;48 HOURS:
The bone warranty under (A)(3)(ii) of CONDITION EIGHTH for any
two year old in training sold at a sale session exclusively for two years
old in training is hereby superseded and replaced as follows:
In the event that an injury to or disease of the bone structure
of a two year old in training sold at a sale session exclusively for two
years old in training is disclosed by radiographs deposited in Barretts'
Repository, consignor warrants that the two year old in training does
not at the time of sale have an injury to or disease of the bone structure
which will to a MEDICAL CERTAINTY have a material, chronic and adverse
effect upon its suitability to be trained for racing.
To the extent any warranty contained in this CONDITION applies,
its supersedes and replaces in its entirety the warranty provided in (A)(3)(ii)
of CONDITION EIGHTH; however, all other provisions of CONDITION EIGHTH,
including (B), apply unchanged. TENTH
- OTHER LIMITED WARRANTIES AS TO SOUNDNESS;72 HOURS (A) Unless
otherwise announced from the auction stand, or stated in an official Barretts
publication, consignor warrants for any horse sold by consignor that:
(1) the horse at the time of sale is not a “cribber;”
(2) the horse is at the time of sale not a “wobbler;” and (3) the horse has never been nerved. (B) Any
horse that is not as warranted as provided in (A) of this CONDITION may
be returned to consignor pursuant to CONDITION THIRTEENTH, provided Barretts
actually receives written notification, and all supporting documentation
of buyer's claim, including, but not limited to, a veterinary certificate,
not later than SEVENTY TWO (72) hours after the end of the sales session
at which the horse was sold and in the event buyer fails to do so, buyer
shall have no right to make any claims for such warranties. In all events, the warranties under this
CONDITION shall immediately terminate, and buyer shall have no right to
make any claim under them, if the horse is not located within seventy
five (75) miles of Barretts' sales premises at the time any claim is made
and does not remain within said seventy five (75) miles through and including
the making of any arbitration determination under CONDITION FOURTEENTH
(B) with respect to such claim; the horse is used “under tack”
after buyer or any representative of buyer know, or should have known,
any fact or circumstance indicating that the horse was not as warranted
in this CONDITION; or if the horse starts in a race. ELEVENTH
- LIMITED WARRANTIES FOR BROODMARES;24 HOURS: Unless otherwise announced
from the auction stand, or stated in an official Barretts publication,
consignor warrants for any broodmare sold by consignor that: (1) the pregnancy
status as stated in the Catalog is accurate as of the time of sale; and
(2) if the broodmare is not in foal at the time of sale, consignor warrants
that the broodmare is suitable for mating, as that term is defined in
the Ethical and Professional Guidelines issued by the American Association
of Equine Practitioners (“AAEP Guidelines”). Any broodmare that is not as warranted
may be returned to consignor pursuant to CONDITION THIRTEENTH, provided
that buyer makes a claim in writing, accompanied by a veterinary certificate
of a reproductive examination of the broodmare conducted in conformity
with AAEP Guidelines substantiating the claim, which are actually received
by Barretts not later than TWENTY-FOUR (24) hours after the end of the
session in which the broodmare is sold and prior to its removal from Barretts'
sales premises, and in the event buyer fails to do so, buyer shall have
no right to make any claim under this CONDITION and the warranty under
this CONDITION shall terminate. Any changes in the pregnancy or breeding
status of the broodmare after the fall of the hammer for the sale of the
broodmare shall preclude any claims under this CONDITION.
Unless otherwise announced from the auction stand, any contractual
agreement between an owner of a broodmare sold in this sale and an owner
of a stallion to which the broodmare has been bred, including, but not
limited to, agreements regarding the possible return to any stallion to
which the broodmare has been bred, or the possible refund of any stud
fee, is not transferred to the buyer of the broodmare. TWELFTH
- OTHER LIMITED WARRANTIES: (A) Unless
otherwise announced from the auction stand, or stated in an official Barretts
publication, consignor warrants for any horse sold, each of the following
matters: (1) the buyer will
upon purchase own 100% of the horse free and clear of all liens, encumbrances,
leases or other charges (collectively “Liens”), other than
the security interest granted in favor of Barretts pursuant to (B) of
CONDITION SIXTH; (2) the identity of the horse (and any in utero foal),
as stated in the Catalog, is accurate; (3) the horse's pedigree, produce
record, race record, foaling date, and breeding date (in the case of a
broodmare), as stated in the Catalog, are materially accurate; (4)†the
horse's foaling place and eligibility for incentive, engagement and similar
matters, as stated in the Catalog, are accurate; (5) the horse's written
health or immunization records, to the extent provided by the consignor
to Barretts and either announced from the auction stand or made available
for buyer's inspection by Barretts, are accurate; (6) the horse's medication
report in the possession of the official state sale veterinarian, pursuant
to the California Horse Racing Board regulations, is complete and accurate;
and (7) the horse is at the time of sale not on any Starter's, Steward's
or Veterinarian's List at any licensed race course.
It is the sole responsibility of consignor to verify all information
that is the subject of this CONDITION.
Barretts shall have no responsibility or liability for any of the
information that is the subject of this CONDITION, or for any other information
provided by Barretts regarding any horse offered for sale or sold in this
sale, including, but not limited to, any information that was procured,
obtained or reviewed by Barretts.
(B) Any
horse that is not as warranted as provided in (A) of this CONDITION may
be returned to consignor pursuant to CONDITION THIRTEENTH, provided that
buyer makes a claim in writing, accompanied by all supporting documentation,
actually received by Barretts promptly upon discovery of the inaccuracy
of the information by buyer or any representative of buyer, and in the
case of the matters warranted in (A)(3) through and including (A)(7) of
this CONDITION, such claim and all supporting documentation must be actually
received by Barretts, in all events, not later than TWENTY-ONE (21) days
after the end of the session at which the horse was sold. In the event that buyer fails to comply with the foregoing
sentence, buyer shall have no right to make any claims under this CONDITION
and the warranties of this CONDITION shall terminate. (C) Consignor
shall have the option to cure any defect of title or claim of Liens, and
if promptly and completely cured, buyer shall be barred from making any
claim in connection therewith. With respect to any claim that the horse is not eligible as
warranted for any incentive program, engagement or similar matter, consignor
shall have the option to promptly establish such eligibility, and if promptly
and completely established, buyer shall be barred from making any claim
in connection therewith. 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 the date of sale are solely the responsibility of buyer,
whose obligation it is to immediately determine when such payments are
due and to notify the proper organization of new ownership in order to
receive direct billing. Information contained in the Catalog concerning
the horse's foaling place does not mean that the horse is eligible for
races restricted to horses bred and/or foaled in that particular place
and does not mean that the horse is eligible for any award programs on
account of foaling in such place. (D) Solely
as an accommodation, Barretts may provide timing information and video
relating to certain horses. Buyer, consignor and bidders each hereby
release the Barretts Released from any liability or claims arising out
of or relating to such information or video, including, but not limited
to, the availability, accuracy or reliability thereof. THIRTEENTH
- REMEDIES FOR BREACH OF LIMITED WARRANTIES:
Any horse sold in this sale which was not, at the time of sale,
as warranted as provided for in CONDITIONS EIGHTH NINTH, TENTH, ELEVENTH
or TWELFTH shall be subject to return to consignor with refund of purchase
price and any taxes paid, and reimbursement by consignor for the reasonable
expenses of keep, maintenance, and transportation of the horse from the
fall of the hammer. The foregoing remedies of buyer shall
be buyer's sole and exclusive remedies and buyer shall not be entitled
to any incidental, special or consequential damages, nor entitled to recover
any lost profits or revenues whatsoever; provided, however, that the remedies
of buyer shall not be limited as provided in the foregoing in connection
with any horse sold which, at the time of sale, was not as warranted in
(A)(1) or (A)(2) of CONDITION TWELFTH.
In no event shall the Barretts Released have any liability to buyer
for the purchase price, taxes, expenses or any other amount paid by buyer,
any lost profits or revenues, or any other damages, including, but not
limited to, any incidental, special or consequential damages for any horse
offered or sold. FOURTEENTH
- ARBITRATION OF CLAIMS: (A) Veterinary
Panel Arbitration of Certain Warranty Claims:
Any dispute, claim or controversy relating to a two year old in
training purchased at a sale session exclusively for two years old in
training or a yearling purchased a sale exclusively of yearlings, arising
out of or under (A)(1) [sexual description], (A)(2) [impairment/injury
to eye] or (A)(3)(i) or (ii) [bone and wind defect] of CONDITION EIGHTH,
or arising out of or under CONDITION NINTH [bone defect for two years
old in training-radiographs deposited] shall be determined by arbitration
as follows: The arbitrator(s)
shall be selected from list of the Veterinary Arbitration Panel maintained
by Barretts (“Panel”). Simultaneously with the delivery of buyer's claim to Barretts,
buyer shall notify Barretts in writing of any member of the Panel who
buyer contends has a direct financial interest in the purchase or sale
of the subject horse, or who is otherwise biased in favor of or against
any party to the arbitration. Consignor
shall be entitled to challenge any member of the Panel on the same grounds,
in writing forthwith sent to Barretts upon notification to consignor of
buyer's claim. Any challenge
by buyer or consignor shall fully describe and explain the challenge.
If a buyer or consignor fails to timely or properly make a challenge,
that party shall be deemed to have accepted all of the members of the
Panel. Barretts shall make the determination
on any challenges, taking into account the materiality of the facts and
any prejudice to any of the parties and Barretts' determination shall
be final and binding. Barretts
shall, in its sole and absolute discretion, select from the Panel remaining
after any challenges that are sustained by Barretts, the members, and
the number thereof, to act as arbitrator(s); provided however, that Barretts
shall appoint at least three (3) arbitrators if the sales price of the
horse, exclusive of any tax, is more than $100,000.
Barretts may in its sole and absolute discretion augment the Panel
list and upon such augmentation, buyer and consignor shall forthwith notify
Barretts in writing of any challenge to any augmented Panel member, in
the manner set for above. The arbitrator(s) shall determine in a
writing signed by the arbitrator(s) whether the horse was or was not as
warranted at the time sold and the arbitrator(s) may engage such consultants,
conduct such tests, investigations or examinations or engage in any other
activity, as they deem appropriate in their sole and absolute discretion
(and the parties shall allow the horse to be so examined and tested and
the parties release, discharge, waive and relinquish the Barretts Released,
the arbitrator(s) and their consultants from any and all claims, liabilities,
damages or losses to the horse by reason of such examinations or tests.) The parties expressly waive any requirement
that the arbitrator(s) conduct any hearing and any right to participate
in the arbitration other than provided herein, and the parties further
agree that the arbitration may take place, even if they, or any of them,
decline or refuse to participate in the arbitration. The determination by the arbitrator(s)
shall be final and binding. If
the determination is that the horse was not as warranted at the time of
sale, then consignor shall immediately take possession of the horse, shall
be liable to buyer for all amounts provided for in CONDITION THIRTEENTH
(with payments administered by Barretts) and shall pay Barretts the sum
of $750 toward reimbursement of the costs of arbitration, plus any additional
costs incurred by the arbitrator(s) in determining the claim. If the determination is that the horse was as warranted at
the time of sale, then buyer shall immediately take possession of the
horse, pay for the horse in full and pay Barretts the sum of $750 toward
reimbursement of the costs of arbitration, plus any additional costs incurred
by the arbitrator(s ) in determining the claim.
Judgment relative to the arbitration may be entered in any court
having jurisdiction and petitions to compel arbitration or to confirm,
clarify or vacate any arbitration award may be served by certified mail. (B) Veterinarian
Arbitration of Certain Other Warranty Claims:
Any dispute, claim or controversy arising out of or under (1) CONDITION
EIGHTH (A)(1) [sexual description], (A)(2) [impairment/injury to eye]
or (A)(3)(i) or (ii)[wind and bone defect] for horses other than a two
year old in training sold at a sales session exclusively for two years
old in training or a yearling sold at a sale exclusively of yearlings;
(2) CONDITION TENTH [cribber, wobbler or nerved], for all horses; or (3)
CONDITION ELEVENTH for broodmares, shall be determined by arbitration
as follows: Upon receipt
of buyer's claim, consignor shall forthwith have a licensed veterinarian
specializing in equine medicine to examine and/or test, as necessary,
the horse where it is located and buyer shall allow the horse to be so
examined and tested. If the
buyer's and consignor's veterinarians agree as to whether the horse was
or was not as warranted at the time of sale, then their decision shall
be final and binding. However,
if the two veterinarians fail to agree as to whether the horse was or
was not as warranted at the time of sale, then the buyer and consignor
shall forthwith agree upon a third licensed veterinarian specializing
in equine medicine and if they are unable to forthwith agree upon the
third veterinarian, the third veterinarian shall be selected by Barretts
in its sole and absolute discretion. The third veterinarian may engage such
consultants, conduct such tests, or examinations or engage in any other
activity, as he or she deems appropriate in his or her sole and absolute
discretion (and the buyer shall allow the horse to be so examined and
tested and the parties release, discharge, waive and relinquish the Barretts
Released, the third veterinarian and his or her consultants from any and
all claims, liabilities, damages or losses to the horse by reason of such
examinations or tests.) The
parties waive any requirement that any hearing be conducted and waive
any right to participate in the arbitration other than as provided herein
and the parties further agree that the arbitration may take place, even
if they, or any of them, decline or refuse to participate in the arbitration.
The third veterinarian shall determine, in writing signed by him
or her, whether the subject horse was or was not as warranted at the time
sold and such determination shall be final and binding.
If the horse is determined (by the buyer's and consignor's veterinarian
if they agree, or by the third veterinarian) not to have been as warranted
at the time of sale, then consignor shall immediately take possession
of the horse, shall be liable to buyer for all amounts provided for in
CONDITION THIRTEENTH (with payment administered by Barretts) and shall
pay the fees of, and costs incurred by, the third veterinarian (if any)
in determining the claim. If the determination is that the horse
was as warranted at the time of sale, then buyer shall immediately take
possession of the horse, pay for the horse in full and pay any fees or
costs incurred, by the third veterinarian (if any) in determining the
claim. Judgment relative to the arbitration may
be entered in any court having jurisdiction thereof and petitions to compel
arbitration or to confirm, clarify or vacate any arbitration award may
be served by certified mail.
(C) ARBITRATION OF ALL OTHER CLAIMS: Any other dispute, claim or controversy between a consignor, buyer and/or Barretts arising out of or relating to any horse consigned to this sale, offered in this sale or sold in this sale, including, but not limited to, any claim under CONDITION TWELFTH, or any claim of misrepresentation, concealment, fraud or other tort, shall be determined by an arbitration by the American Arbitration Association (“AAA”), conducted by a single arbitrator, who shall be a retired judge, under the AAA's Commercial Arbitration Rules for non-consumer related disputes. The arbitration shall take place at an AAA office in Los Angeles, California. Any and all questions as to whether or not an issue constitutes a dispute or other matter arbitrable under this section shall themselves be settled by arbitration in accordance with this section. Barretts may, but shall not be obligated to, commence any such arbitration; however, should Barretts commence any such arbitration, and seek no monetary relief for itself therein, Barretts shall be entitled to recover all of its attorneys' fees and costs (including, but not limited to, administrative fees and the fees of the arbitrator) in all cases, from the party or parties who do not prevail in the arbitration; other than as provided in the foregoing, the arbitrator may, in the award, allocate all or part of the costs of the arbitration, including administrative fees, the fees of the arbitrator and the reasonable attorneys' fees of any prevailing party. Buyer, consignor or Barretts shall be entitled to petition to compel arbitration under this section. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof, and petitions to compel arbitration or to confirm, clarify or vacate any such award may be served by certified mail. FIFTEENTH - SALES TAX: If buyer intends to ship any purchased horse out of state, buyer shall sign and deliver to Barretts prior to purchase a Pre-Sale Interstate Delivery Agreement directing such shipment, at buyer's sole risk and expense, via a licensed carrier. Provided that buyer has fully complied with these CONDITIONS, Barretts shall deliver, without incurring any liability, such horse in accordance with instructions and arrangements that buyer 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. Notwithstanding anything to the contrary, should any sales or use tax, penalty or interest (collectively the “Tax”) be imposed on any purchase for any reason, buyer will be solely responsible for and shall promptly pay the Tax and defend, indemnify and hold the Barretts Released harmless (including, but not limited to, all reasonable attorneys' fees and costs) from or in connection with the Tax. SIXTEENTH - ENTIRE AGREEMENT: These CONDITIONS, the Glossary of Definitions, Breeding Definitions and all Notices (including but not limited to "Registration and Payment Procedures") contained in this Catalog, Acknowledgments of Purchase, any announcement from the auction stand authorized by these CONDITIONS, and any official Barretts publication shall constitute the entire agreement of consignor, buyer, and Barretts, bidders/buyers, and all other interested parties with respect to the subject matter hereof and shall supersede all prior or concurrent agreements, understandings, warranties, representations and negotiations concerning the subject matter hereof. None of the terms and conditions set forth herein shall be modified or waived except in writing signed by Barretts' General Manager and the party affected thereby. Barretts shall not be bound by any oral or written agreement between the buyer, consignor or anyone else purporting to modify or change these CONDITIONS, unless Barretts' General Manager so agrees in a writing expressly stating that the writing is a modification or change of these CONDITIONS. These CONDITIONS, including headings of the paragraphs hereof, shall not be interpreted against Barretts. If any provision or portion of these CONDITIONS is held to be illegal or invalid, such illegality or invalidity shall not affect the remaining provisions or portions of these CONDITIONS, and they shall be continued and enforced as if such illegal or invalid provision or portion had never been inserted herein. SEVENTEENTH
- LIMITATIONS OF ACTION: Any action or proceeding arising out of
or related to these CONDITIONS, or the purchase of a horse in this sale,
whether it is based in contract, tort or equity must be commenced no later
than ONE (1) YEAR after the date of the sale, regardless when the facts
giving rise to the claim are discovered, or shall be forever barred; provided,
however, that such limitation shall not apply to any claim made by buyer
under (A)(1) of CONDITION TWELFTH or any action by Barretts to collect
or recover any payment, commission, cost or expense under these CONDITIONS,
under any Consignor's Contract, or to foreclose on any lien granted in
favor of Barretts. BARRETTS
EQUINE LIMITED
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