TERMS & CONDITIONS - ONLINE AUCTION PURCHASE CONTRACT
Professional Horse Services, LLC
PLEASE READ THE COMPLETE CONDITIONS OF SALE BEFORE BIDDING – A copy of this contract will be emailed to you following your approval to bid. Please keep a copy for your records. You will be bound by these Conditions whether, or not, you have read them.
1. AGREEMENT: a) I represent and agree that I am of legal age to form a binding contract. b) I (hereinafter, referred to as Buyer) agree to these terms and conditions, and swear that all the information furnished is true and correct. c) Buyer agrees to be responsible for any purchase made or actions taken by an Agent authorized by me to act on my behalf, d) Buyer agrees that this registration to bid is not assignable without the express written approval of P.H.S. e) Buyer agrees to make any sale transaction for this entry through P.H.S. f) Buyer agrees that if they have the winning, final bid, or accepted bid in auction subject to Seller Confirmation, the Buyer has entered into a binding agreement to purchase the horse.
2. BUYER’S RESPONSIBILITY: By placing a bid in this auction Buyer is indicating they have examined or researched a horse to their satisfaction. Prior to Bidding, Buyers may a) ask Seller for additional information, b) make an appointment with Seller to examine the horse at Seller’s property, c) arrange with Seller to have a veterinarian perform a pre-purchase examination, or d) hire an agent or equine professional to inspect and evaluate the horse.
3. REPRESENTATION OF HORSE: Seller is responsible for the correct representation of this entry in the entry form, including the description, disclosure form, horse information, riding and training sections of this submission, as well as in communication with potential or eventual buyers. Some representations on disposition and handling are the opinion of the Seller and given only as an indication of the horse’s capability. Buyer should inspect, examine and research horse to their satisfaction. Seller is responsible for disclosing the following conditions, which must be stated in the online catalog, if this entry is a cribber, weaver, is unsound of eyes or wind, has a parrot mouth, is a cryptorchid or ridgling, has had major surgery or a serious illness, has been nerved or has a lameness due to navicular disorder, ringbone, osteoarthritis, founder prior to the sale or other bone abnormality or neurological disorder including, but not limited to, EPM or wobbles. Seller is solely responsible for the accuracy of all information that appears in the online sale catalog and previews. Buyer agrees to hold P.H.S. harmless from any claims arising out of any such inaccuracies or omissions.
4. NO IMPLIED WARRANTIES: There is no warranty expressed or implied by the sales company, sponsors, or Seller, as to the performing soundness, merchantability or fitness for any particular purpose of any horse offered in this sale, other than those made specifically by the Seller. Except as stated in Condition 4.1, ALL HORSES ARE SOLD “AS IS” WITH ALL EXISTING CONDITIONS AND DEFECTS. RESPONSIBILITY FOR THE REPRESENTATION OF THE HORSE LIES BETWEEN THE Seller AND THE BUYER.
4.1 Buyer’s Right to Limited Post-Purchase Examination - Buyer has the right to have a veterinarian perform a limited post-purchase examination, at Buyer’s expense, to determine if any of the issues in Condition 3 were not disclosed. The examination must be done within three (3) business days from the end of the auction and before the horse leaves the Seller’s facility. This examination will be limited to moving the horse for soundness on riding horses or show horses of any type, and checking the reproductive tract on breeding horses. Positive reaction to flexion tests and hoof testers does not constitute unsoundness, if the horse is moving sound. These tests should be a part of a pre-purchase examination. A horse sold with one or more of the issues described in Condition 4, which was not disclosed at the time of sale can be rejected by the buyer, upon receipt of a statement from a qualified veterinarian, establishing the existence of the condition, within 3 business days of the date of sale and before the horse leaves the Seller’s facility. If a sale is rejected, the horse will remain the property of Seller.
5. Drugs and Medication - Seller agrees that this entry will not be given any drugs to alter soundness or temperament during this auction, including for presentation in videos, inspection by potential buyer, examination by veterinarian or delivery to buyer. If the entry must receive any medication as a result of an injury or illness, to protect the welfare of the entry or maintenance of any condition, this information must be provided to P.H.S. and be disclosed in the online catalog. Buyer has the right to have a licensed veterinarian draw a blood sample within three (3) business days of the end of the auction and before the horse leaves the Seller’s facility. If the buyer makes a claim of misrepresentation of soundness or attitude and the entry tests positive for a drug that could mask such a problem, the entry can be rejected by the buyer and returned at the Seller’s expense. Notification of a claim by the Buyer under this Condition must be made to Professional Horse Services, LLC within seven (7) days of the date of the sale, by a written statement from a qualified equine veterinarian explaining the diagnosis of any unsoundness or explaining the behavior problem. Any net funds for the horse in the possession of P.H.S. will be held pending the results of the blood screen.
6. Transportation from Seller to Buyer: Buyer is responsible for cost and arrangements for transportation of horse from Seller to Buyer. Soon after purchase Buyer will contact Seller directly to schedule removal of horse.
7. RELEASE OF HORSE TO BUYER: Seller shall not release a horse to a Buyer until Buyer has made full payment for the horse and funds have been verified. Once bidding concludes, and P.H.S. has collected payment from the Buyer, P.H.S. will send to the Seller and Buyer, a Buyer Confirmation Form (BCF). When Buyer or transporter arrives they will show Seller their copy of the BCF to confirm payment. Buyer or transporter and the Seller will both sign a copy of the BCF and e-mail or fax it to P.H.S.
8. RISK AND RESPONSIBILITY FOR HORSE: Buyer assumes all risk, responsibility and expense for the horse at the end of bidding or, if sold pending confirmation by Seller, upon confirmation of selling price by Seller. Seller agrees to provide basic board and care for up to 5 days at no additional charge. Beyond 5 days, Buyer will be responsible to pay for board, at a cost determined by Seller, plus any other expenses that may be required to maintain the horse until Buyer takes possession or has the horse picked up from the seller. P.H.S. recommends the buyer obtain Full Mortality Insurance on horses immediately after purchase, however, this decision and risk rest solely with the buyer.
9. BIDDING ERRORS: You should make sure to review all bids before and after submitting. If you mistakenly increase your own bid, place your bidder number in the bid field, or make a gross error you must immediately contact the P.H.S. office by email (we must have your request in writing). We may not be able to reverse your bid. You must remain the high bidder. Be aware of increasing your own bids.... some bidders increase their own bid to price an item out of reach of other bidders. We will not reverse bids that have caused another bidder to be outbid. If you bid on the wrong item we will not reverse your bid. Please make sure to immediately review your bid. We will not reverse bids after the auction has begun to close.
10. SALES TAX - Buyers residing in Virginia will be required to pay Virginia Sale Tax of 5%, unless exempt and appropriate forms have been completed.
11. Buyer transaction Fee – Buyers of horses in this auction will pay to P.H.S. in the amount of 5% of the total price of any horse purchased. This fee covers costs for electronic financial transactions and providing services for Buyer accounts.
12. PAYMENT BY BUYER - Once bidding is closed an invoice will be emailed to Buyer. Terms of sale are cash and payment in full must be made within (3) banking days after the sale is closed. Pay PROFESSIONAL HORSE SERVICES, LLC in all cases. Payment may be made in the form of MasterCard, Visa, American Express or Discover credit cards, cash, bank wire transfer, personal or business check with proper identification, cashier’s or certified check, or valid traveler’s checks. Checks must be made out to PROFESSIONAL HORSE SERVICES, LLC In no case may any part of the purchase price be paid directly to the Seller by the Buyer, as such payment shall not be valid or entitle the buyer to obtain the horse. A charge of $50.00 will be made on any check that is returned. Buyer agrees not to stop payment on check for any reason.
13. DEFAULT ON PURCHASE - If any person shall purchase a horse and not pay for it as prescribed above, P.H.S. or consignor shall have the right to resell the horse or at their option bring legal action in which event buyer agrees to pay all cost of such suit together with reasonable attorney fees as fixed by the court. In the event of resale the defaulting buyer agrees to pay all costs of resale and price deficiency, if any. Interest of 1-1/2% per month will be charged on the unpaid balance of any account not paid for as set forth in these conditions.
14. All registration papers will be withheld by the P.H.S. until all checks clear the bank (21 days) at which time they will be mailed, with completed transfer reports to AQHA for Quarter Horses and to the buyer for other breeds. Quarter Horse transfers can only be completed with a current membership. NOTE: If any buyer desires to obtain papers immediately, the horse or horses must be paid for with cash, cashier's or Official Bank check.
15. COGGINS REPORT: Seller must provide a copy of a Negative Coggins report drawn within 11 (eleven) months of the closing date of the sale.
16. HEALTH CERTIFICATES: Buyer will be responsible for obtaining the Interstate Health Certificate for transportation.
17. HYPP STATUS: For horses descended from the Quarter Horse stallion IMPRESSIVE, (AQHA Reg. No. 076724): 1.) If horse has been tested for HYPP ("Hyperkalemic Periodic Paralysis”), the Seller shall notify P.H.S. of the results of such test and the results will be stated in the catalog. If not shown on AQHA registration papers, proof of HYPP Status MUST BE sent to P.H.S. with the entry form. 2.) If a horse has not been tested for HYPP the seller shall notify P.H.S. of that fact and it will be stated in the catalog.
18. BROODMARES: For mares selling as bred, a veterinarian must check the mare for pregnancy within ten (10) days prior to listing for this sale and a statement of this examination must be provided to P.H.S. If a mare is known to be carrying twins, it must be disclosed. Any purchaser of a broodmare sold in this sale may have the mare examined by an acceptable veterinarian before the horse leaves the seller’s premises. Any broodmare so examined whose pregnancy status is found not to be as represented in the sale catalog, may be returned to the Seller as unsold, and the seller shall pay veterinarian’s fee for examination. Any Seller offering mares as being bred with a live foal guarantee or return privileges must furnish P.H.S., or Buyer, with written acknowledgement of this agreement signed by the stallion owner (or an authorized agent) that such privileges will be honored. If the stallion owner withholds the breeder’s certificate until the foal is born, the Seller must furnish a letter, signed by the stallion owner (or an authorized agent), that such certificate is free of any additional costs and indicate how the mare owner will obtain the certificate.
19. NO GUARANTEE OF SERVICE: P.H.S., and EDJEAuctions.com (EDJE Technologies, Inc.) do not guarantee or covenant that the Auction technology, the EDJEAuctions.com site or any related services will meet Buyer’s requirements or be uninterrupted or error-free. EDJEAuctions.com (EDJE Technologies, Inc.) does not guarantee real-time performance of any service or that it will execute all online or absentee bids.
20. WITHHOLDING FUNDS: Buyer agrees that P.H.S. shall not be required to remit to Seller or Buyer, the net proceeds of the sale of any entry which is the subject of a dispute or claim by the buyer, for misrepresentation, fraud or breach of warranty, until such dispute or claim is resolved and the proceeds of the sale have been received by P.H.S. The responsibility to resolve such a claim lies between the Seller and the Buyer. Notwithstanding any other provision hereof, should a dispute arise between the Seller and the Buyer, P.H.S. may retain its fees and costs and may hold in escrow the balance of any proceeds of sale in its possession, as well as any titles or registration certificates, pending a resolution of the dispute. Any and all legal fees and costs incurred by P.H.S. may be deducted by P.H.S. from the net proceeds of sale still in their possession. Otherwise, the Seller and Buyer shall be jointly and severally liable for the same upon demand.
21. DISPUTED CONDITION & BINDING ARBITRATION: In the event of a dispute between the parties, a claim to enforce this Agreement or the allegation of a default, which is not resolved by agreement, the parties waive the right to litigate the issue and agree the matter shall be submitted to binding arbitration, pursuant to the Code of Virginia, using a single arbitrator to be selected by the parties. If the parties cannot agree on the selection of the arbitrator, they shall allow the arbitrator to be designated by P.H.S. The arbitration shall take place in Loudoun County, Virginia, unless mutually agreed otherwise. In any procedures arising out of, regarding or related to this Agreement, the defaulting party shall pay to Professional Horse Services, LLC, any cost, expense and attorney's fee incurred by Professional Horse Services, LLC in such proceeding, in addition to any amounts awarded in such proceedings in the event Professional Horse Services, LLC substantially prevails. Buyer or Seller may bring no action, regardless of form, including arbitration, more than one year after the cause of action has accrued. Should either party fail or refuse to cooperate upon a demand for arbitration, the arbitrator shall automatically declare the non-cooperative party to be the defaulting party.
22. INDEMNITY: Buyer releases P.H.S., Sale Managers, Auctioneers, employees and its representatives, from any and all responsibilities, liabilities, obligations, claims, lawsuits, or legal proceedings arising from the sale of this entry. If legal action is initiated against P.H.S. involving this entry, the Seller agrees to fully indemnify P.H.S. from such suit, including legal fees and costs incurred by P.H.S. Seller agrees that P.H.S. may publish sale results including information concerning this sale transaction.
23. LIMITS OF LIABILITY: P.H.S. shall not be liable for lost profits or any incidental, special or consequential damages whatsoever arising out of or in connection with any sale or transaction. In NO event will the total liability of P.H.S. from all damages, losses, and causes of action resulting from Seller’s use of the P.H.S. website or service exceed the largest amount of funds held for your benefit.
24. ADDITIONAL TERMS AND CONDITIONS: The Terms and Conditions for the use of EDJEAuctions.com and P.H.S. Conditions Of Sale for buyers as stated on the auction web site, are hereby incorporated by reference and made part hereof as though fully set forth herein.
25. INTERFERENCE: Seller agrees not to use any device, software or routine to interfere with or attempt to interfere with the functioning of this online auction.
27. Severability – If any provision or portion of a provision of this agreement is held to be invalid or unenforceable for any reason, such provision or portion of a provision shall be struck and the remaining provisions shall be enforced.