AUCTION TERMS AND CONDITIONS
IMPORTANT AND LEGALLY BINDING RULES APPLICABLE TO THIS AUCTION. PLEASE READ.
- These Terms and Conditions Govern This Auction: All sales and attempted sales organized and conducted by and through this auction known as ShowHorseSales.biz (“Auction” and/or “Auctioneer”) are governed by these Terms and Conditions (“Terms and Conditions”) and by all announcements from the Auctioneer, catalog or otherwise provided (“Announcements”). All sellers, owners, consignors, bidders, prospective bidders, buyers, agents and other interested parties (“Participant” or “Participants”) and all sales and attempted sales are bound by and subject to these Terms and Conditions and Announcements. By electing to be a Participant, you are acknowledging that you have read these Terms and Conditions and agree to be bound by them.
- Auctioneer Fees: An entry fee of $300 shall be paid to Auctioneer for each horse listed for sale. This fee is non-refundable for any reason. The entry fee must be paid at the time of the submission of a horse for entry in the Auction.
When a horse is sold through the Auction, the Auctioneer shall also receive a commission of five percent (5%) of the purchase price. The owner, seller and consignor shall be responsible for paying the Auctioneer’s commission within seven (7) days of the date that the horse is sold through the Auction. Any unpaid fee or commission shall be subject to compound interest of 8% or other interest rate as permitted by applicable law. The owner, seller and consignor agree that all actions relating to or arising out of any unpaid fee or commission shall be brought in a state court with subject matter jurisdiction located in Shelby County, Kentucky. In addition, the Auctioneer shall be entitled to reimbursement for all of its costs including, without limitation, reasonable attorney fees associated with collecting unpaid fees and commissions.
Once a horse has been entered, the entry fee has been paid and the horse listed for sale through the Auction, the horse shall remain in the Auction until the applicable auction period has expired and the auction completed. The horse may not be withdrawn from the Auction or sold privately or otherwise during the applicable auction period without the express written agreement of the Auction and payment of appropriate fees and commissions.
- Privacy Notice: Participants are hereby notified that Auctioneer and its agents, representatives and assigns may record any or all of sales processes by video, audio or other means (“Recordings”). Auctioneer may use the Recordings and any and all other information associated with any sale or attempted sale, whether or not provided by any Participants, in Auctioneer’s sole discretion.
- Warranty Disclaimer: Except as expressly announced by the Auctioneer at the time of the sale, THERE IS NO WARRANTY OR GUARANTY OF ANY KIND, EXPRESS OR IMPLIED, BY AUCTIONEER, SELLER, OWNER OR CONSIGNOR AS TO THE PHYSICAL CONDITION, HEALTH, QUALITY, SOUNDNESS, BREEDING ABILITY, TEMPERMENT, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR ANY OTHER CONDITION OF ANY HORSE SOLD OR OFFERED FOR SALE. ALL SALES ARE MADE ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, CONDITIONS AND DEFECTS.
- Pre-sale Exams: All prospective purchasers and bidders are encouraged to carefully examine horses in which they may have an interest (personally and / or by veterinarians or other agents of their choosing) BEFORE bidding on the horse because, as set forth in paragraph 4 above, purchasers are accepting horses “AS IS” and “WHERE IS” with any and all faults, defects and other conditions. Owners, sellers and consignors agree to cooperate in facilitating any such exam upon reasonable notice. Owners, sellers and consignors are encouraged to provide Auctioneer with proof of soundness as determined by a veterinarian that can be shared with prospective bidders.
- Catalog and Announcements: The accuracy and completeness of all information set forth in the catalog, Announcements or on any page or link associated with the Auctioneer’s website shall be the sole responsibility of the seller and consignor of each respective horse. Sellers and consignors have the affirmative duty to submit accurate and complete information to the Auctioneer as well as to review the catalog, Announcements and Auctioneer website and report any inaccurate or incomplete information immediately. This obligation shall be ongoing and continue through the sale. Participants agree that Auctioneer shall not be responsible for the accuracy or completeness of any information contained in the catalog, Announcements or on any page or link associated with the Auctioneer’s website. Participants agree to release, indemnify and otherwise hold Auctioneer harmless from any liability or damages resulting from or relating to information contained in the catalog, Announcements or on any page or link associated with the Auctioneer’s website.
- Reserves: The right to bid on a horse listed for sale in the Auction is reserved for all sellers and their agents, disclosed and undisclosed. Bidders and purchasers agree that owners, sellers and consignors have the right to establish minimum reserve prices for horses that may or may not be disclosed to bidders and purchasers. Bidders and purchasers also agree that owners, sellers and consignors have the right to conduct by-bidding for their respective horses. If an owner, seller or consignor desires the Auctioneer to assist with disclosing and/or enforcing any minimum reserve price, including disclosing the same to prospective bidders and purchasers prior to the sale, it shall be the sole responsibility for the owners, sellers and consignors to provide the complete and accurate information to the Auctioneer in writing at the time of the entry of the horse. Auctioneer may assist with implementing a minimum reserve established by the seller or consignor after the entry of the horse, but all Participants acknowledge and agree that Auctioneer shall not be responsible for any miscommunication or failure to comply with such reserve.
- Bidding Disputes: The highest bidder for any horse shall be the winning bid subject to any minimum reserve price, disclosed or undisclosed. Auctioneer will endeavor to inform the winning bidder on the next business day following the conclusion of the Auction and to share appropriate contact information between the seller and purchaser so that they may begin the additional steps including, without limitation, those set forth in paragraphs 9, 10 and 11 below. In the event of any dispute arise among two or more bidders, Auctioneer shall resolve the dispute and its decision shall be absolute, final and binding upon all Participants and their respective principals, agents, representatives and assigns.
- Purchase Agreement and Passage of Title: Participants acknowledge and agree that it is the responsibility of the sellers, consignors and purchasers to prepare and execute an appropriate purchase agreement and any related documents following the conclusion of the Auction as may be required by law. Except as otherwise provided herein, title and risk of loss shall pass to the winning bidder at the close of the Auction, at which time the winning bidder shall be responsible for the care, custody, control and security of the horse at issue and for all associated expenses. Participants agree to release, indemnify and hold Auctioneer harmless from any damages or liability arising out of or relating to the possession, custody, control or care of any horse sold or purchased by them or their agents including, without limitation, any damage or injury to the horse or caused by the horse.
- Payment to Seller and Release of Horse: All purchase payments shall be addressed and resolved directly between the purchaser and the seller or consignor. Participants acknowledge and agree that it shall be the sole responsibility of the seller and consignor to collect full payment for the horse from the purchaser. Upon full settlement of the purchase amount by the purchaser, seller and consignor agree to release the purchased horse to the purchaser or its agent. Unless otherwise agreed to by the seller and purchaser, the purchaser shall be responsible for arranging and paying for the transportation of the horse from its location at the time of the sale to a location of the purchaser’s choosing.
- Registration Certificates: By electing to enter a horse for auction by the Auctioneer, owner, seller and consignor are affirming that they have clear, unencumbered title to the horse at issue. The owner, seller or consignor shall provide Auctioneer with proof of the registration certificates, if any, of any horse entered for auction, showing a clear title of ownership before the Auction. If, for any reason, a registration certificate of any horse cannot be or will not be furnished by the owner, seller or consignor to any purchaser, it shall be the sole responsibility of the seller or consignor to request the Auctioneer announce prior to the start of bidding that a certificate will not be furnished to the buyer. Unless expressly stated otherwise in the disclosures provided by the owner, seller or consignor and stated on the Auctioneer’s website / sales platform or relayed via the Announcements, the owner, seller and consignor shall provide all documentation necessary for the buyer to register any foal by side or in utero.
- No Implied Duties: The duties and obligations of Auctioneer shall be strictly limited to those duties expressly imposed upon Auctioneer by these Terms and Conditions. All other duties and obligations including, without limitation, fiduciary duties and other duties that might otherwise be imposed under any applicable law or regulation are hereby expressly disclaimed.
- Dispute Resolution: Except as expressly set forth in paragraph 2, Auctioneer Fees, all disputes arising out of or relating to these Terms and Conditions of Sale, shall be resolved as follows:
- Any aggrieved Participant shall notify, in writing, other affected Participants and the Auctioneer of any dispute and requested resolution. The affected Participants shall attempt to resolve the dispute by agreement within five (5) business days.
- If the dispute is not resolved by agreement as set forth in paragraph (a), the aggrieved Participant may engage a qualified, professional mediator and the affected Participants shall participate in a mediation within thirty (30) days. Unless all parties agree otherwise, the cost of mediation shall be divided equally.
- If the dispute is not resolved by agreement pursuant to paragraph (b), any Participant or the Auctioneer may initiate a cause of action in a state court with subject matter jurisdiction located in Shelby County, Kentucky.
- Governing Law, Venue and Jurisdiction: The laws of the Commonwealth of Kentucky shall govern the construction of these Terms and Conditions as well as the rights and remedies of the parties. In the event of any litigation arising out of related to these Terms and Conditions or any related transaction, the parties agree that any action or suit shall be brought in a state court located in Shelby County, Kentucky or in the United States District Court for the Western District of Kentucky, and the parties hereby consent to the venue and jurisdiction of such courts. The Participants, Auctioneer and their respective agents voluntarily waive any right that they may have to a trial by jury.
- Limitations of Action: Any cause of action arising out of the purchase and sale of any horse, or otherwise relating to or arising out of the Terms and Conditions, whether based in contract or tort, shall be commenced in one year or less from the date of the auction at issue.
- No Waiver: In the event that Auctioneer elects to take any action or withhold from taking any action pursuant to these Auction Terms and Conditions, such election shall not constitute a waiver, nor establish a custom or course of dealing and shall not effect Auctioneer’s rights herein in any other circumstance with respect to that same person(s) or different person(s).
- Agents: Persons acting as agents for principals shall file authorized agent forms in form and substance satisfactory to Auctioneer stating that the agent is acting on behalf of the principal and said principal acknowledges full responsibility for the agent’s activities including, without limitation, sales and purchases. Regardless of whether an agent files an appropriate authorized agent form with the Auctioneer, any person submitting information to the Auctioneer on the behalf of a principal or otherwise holding themselves out as an agent of a principal waive any right to deny an agency relationship or the scope of the agency. Such persons shall be jointly and severally responsible and liable for all communications and transactions with the Auction and other Participants.
- Right of Refusal: Auctioneer reserves its right to exclude any persons from any sale including, without limitation, owners, sellers, consignors, agents, bidders and purchasers. Such exclusion shall not be made on the basis of race, creed, color, national origin, sex, political affiliation or political beliefs.
- Content Submitted or Made Available for Use by the Auction: The Auction does not claim ownership of any content you submit or make available for inclusion by the Auction. Participants grant Auctioneer the following world-wide, royalty free and non-exclusive license(s), as applicable: the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content by the Auction solely for the purposes of providing and promoting the Auction to which such content was submitted or made available. This license exists in perpetuity.
- Sales and Use Tax: The seller and buyer are solely responsible for the payment of all applicable sales and use taxes including, without limitation, Kentucky Sales and Use Tax as required by Kentucky Revised Statutes Chapter 139 and the rules and regulations of the Kentucky Department of Revenue, and/or the laws and regulations promulgated by any federal, state or local tax authority having jurisdiction over the seller and/or buyer. Furthermore, it shall be the sole responsibility of the buyer and seller to comply with all tax consequences arising out of or related to any sale and purchase of a horse through this Auction including, without limitation, all sales and use taxes.
- Entire Agreement: These Terms and Conditions and Announcements reflect the entire agreement of the parties regarding its subject matter and, as such, supersedes all prior oral and written agreements or understandings between the parties regarding its subject matter, except as otherwise expressly stated herein, and may not hereafter be modified except in a writing signed by all parties. If any clause or portion of this agreement is deemed to be invalid or unenforceable for any reason, it shall not impact the validity and enforceability of the remainder of the agreement. All owners, sellers, consignors, bidders, purchasers and agents shall take necessary actions and provide necessary information, documents and other instruments in order to effectuate the Terms and Conditions and related transactions.