A. CONDITIONS OF SALE
TERMS – WARRANTIES – BUYING PROCEDURE – SETTLEMENT
FOR ALL AUCTIONWARE, LLC LIVE AUCTIONS – ONLINE VIDEO AUCTIONS – TIMED
1 GOVERNING LAW
Triangle Sales is a division of AuctionWare, LLC a Texas Corporation fully licensed and bonded to conduct horse sales in the state of Oklahoma. AuctionWare, LLC is an independent contractor regularly engaged in the business of conducting consignment sales of horses and is recognized as “sale management”. These sales provide a public means via live, online video and/or timed auctions, to bring together a seller and a buyer for the purpose of completing the sale of a specified horse. AuctionWare, LLC holds no ownership interest in any horse offered for sale, and is not responsible for any liability whatsoever, including, but not limited to, the loss, damage, injury, death or illness of any horse, person or property before, during or after the sale. In the event of any legal dispute between a buyer and owner, AuctionWare, LLC will occupy the position of agent for a disclosed principal and stakeholder and will be discharged from all obligation upon delivery of any property and/or funds held, to a court having jurisdiction of such dispute EXCEPT AS EXPRESSLY PROVIDED IN TERM 5, EACH HORSE OFFERED IN THIS SALE IS SOLD “AS IS” AND WITH ALL DEFECTS. OWNERS, BIDDERS AND BUYERS CONSENT TO RECEIVE ELECTRONIC MESSAGES PERTINENT TO ANY AND ALL AUCTION BUSINESS VIA TEXT, EMAIL AND PHONE WHICH MAY BE SENT THROUGH AN AUTOMATIC SYSTEM FROM AUCTIONWARE, LLC AND ITS AFFILIATES.
Buyers, bidders, owners and/or spectators are notified to use extreme caution while on the sale grounds, particularly while horses are being presented in the sale arena. All persons attending this sale do so at their own risk. Neither AuctionWare, LLC nor any other independent contractor associated with the sale, assumes any liability whatsoever for accidents, death or injury to persons or property before, during or after the sale.
3 BUYER REGISTRATION/PRE-SALE PURCHASE ARRANGEMENTS
Every potential buyer must pre-register through the sale office prior to bidding. A valid US driver’s license, intended form of payment and a complete buyer registration application are required.
AUCTIONWARE, LLC RESERVES THE RIGHT TO ACCEPT OR REJECT ANY REQUEST FOR BUYER OR OWNER PARTICIPATION AT THIS SALE.
Non-US Bidders – Foreign buyers are welcome. To participate please note US funds and a form of positive identification are necessary. Methods of payment accepted from all buyers are:
2.US Cashier’s Check
3.US Bank Drawn Approved Check
4.US Money Order
5.Mastercard, Visa, Discover & American Express
6.American Express Travelers Check
7.Pre-sale Escrowed US Funds Designated for Sale Purchases
NO BANK DRAFTS ARE ACCEPTED. NO POST-DATED CHECKS ARE ACCEPTED. A 4% office processing fee will be added to all purchases, however this fee will be discounted for purchases paid by cash, cashier’s check, check, money order, travelers check or escrowed funds.
4 CATALOG ERRORS AND ANNOUNCEMENTS
ALL ELIGIBILITIES AND NOMINATIONS NOTED WITHIN THE SALE CATALOG HAVE BEEN PROVIDED BY THE OWNER AND HAVE NOT BEEN VERIFIED BY AUCTIONWARE, LLC.
The accuracy of all information regarding a horse’s catalog page is the sole responsibility of the owner as is the certainty that all announcements regarding corrections, updates or warranties are made while the horse is in the auction arena. Buyers are cautioned to pay close attention to announcements from the auction block regarding corrections or updates to the sale catalog page as such announcements take precedence over printed material. While certain information may have been procured by AuctionWare, LLC from third parties on behalf of the owner, it is nonetheless solely the responsibility of the owner to verify the accuracy of such information and to make certain such changes are made public. AuctionWare, LLC nor any representative thereof, assumes any responsibility or liability for errors or omissions, or for any verbal or written statement regarding the horse sold.
If a prospective buyer is not sure about an announcement made regarding a horse up for bidding, he should immediately consult with the bid spotter.
5 WARRANTIES & EXPRESSED LIMITED WARRANTIES
BUYERS ARE ENCOURAGED TO PRE-INSPECT AND ARE CAUTIONED TO CAREFULLY EXAMINE ANY HORSE PRIOR TO BIDDING OR PURCHASING. Potential buyers, at their expense, have the option to have a veterinary examination performed on any horse prior to that horse entering the auction arena. Owner’s permission must be obtained prior to any such examination. BUYERS CANNOT HAVE WHAT IS KNOWN AS A COMPLETE PRE-SALE VETERINARY EXAMINATION OF ANY HORSE AFTER PURCHASE.
All horses consigned to this sale are offered in accordance with the laws of the State of Oklahoma. There is no warranty, express or implied, by AuctionWare, LLC or any sale staff member as to the soundness, condition, merchantability or fitness for any particular purpose of any horse offered for sale. It is the position of AuctionWare, LLC that all horses are sold “AS IS” with all existing conditions and defects except as expressly announced from the auction block or as expressly provided herein. Any guarantees announced on behalf of the owner from the auction block are strictly between owner and buyer. Owners are bound by these Conditions Of Sale as well as the consignment agreement completed upon entry to the sale. Within that consignment agreement owner agreed to disclose any obvious blemishes and to guarantee to all parties the following warranties, unless disclosed otherwise and announced/explained at the time of sale:
a.title to the horse is free from any adverse claims
b.the horse does not have impaired vision nor discoloration in eye(s)
c.the horse is not hearing impaired
d.the horse does not have an overbite/underbite
e.the horse is not a cribber, nor a weaver, nor has a neurological disorder
f.the tail of the horse has not been medically altered
g.the horse does not have mane/tail extensions
h.the horse has not had abdominal surgery within the past 2 years
i.the horse does not have hoof damage/shoe pads
j.the pedigree, parentage and sex of this horse is as represented
k.the horse is suitable for the purpose for which it is represented
l.the horse is free from medication(s) unless otherwise announced
OWNERS ARE WARNED THAT ANY HORSE REFUSED BY THE BUYER FOR LACK OF DISCLOSURE OF ANY WARRANTY OR LIMITED WARRANTY DESCRIBED IN TERM #5 HEREIN WILL BE SUBJECT TO RETURN. UPON ANY SUCH RETURN, THE OWNER WILL OWE AUCTIONWARE, LLC THE SALE EXPENSES AND SALE COMMISSION (8%) OR $1,000.00, WHICHEVER IS GREATER AND THE COST OF ALL VETERINARY SERVICES PERFORMED. IF THE HORSE IS REFUSED BY THE BUYER UNDER THESE TERMS, ALL ARRANGEMENTS AND EXPENSES TO RETURN THE HORSE ARE SOLELY THOSE OF THE OWNER.
No guarantees or warranties are made by AuctionWare, LLC as to the pregnancy status and eventual foaling, fertility or breeding privilege of any mare offered for sale. Final pregnancy status and covering sire for any mare shall be announced from the auction block on behalf of the owner. Any mare selling “in foal” sells without return breeding privileges unless announced otherwise on behalf of the owner. Any breeding agreement is solely between the buyer and owner. Broodmares represented by an owner as “in foal” are subject to a veterinary pregnancy examination at buyer’s expense immediately upon purchase and prior to removal from the auction grounds. Any broodmare found not to be as represented in the auction arena will be subject to return. Upon any such return, the owner will owe Auctionware, LLC the sale expenses and sale commission (8%) or $1,000.00, whichever is greater and the cost of the veterinary pregnancy examination. Recipient mares sell with no deposit due nor expectation of return unless otherwise announced.
7 RIGHT OF RETURN – 48 HOUR RULE
BUYERS CANNOT HAVE A VETERINARIAN PERFORM WHAT IS KNOWN AS A COMPLETE PRE-SALE EXAMINATION OF ANY HORSE AFTER PURCHASE. In the event that any horse is not as represented in the sale catalog or as announced, or if owner fails to disclose at time of sale any of the limited warranties described in Paragraph 5 above, horse is subject to return by the buyer.
WITHIN FORTY-EIGHT (48) HOURS AFTER THE CLOSE OF THE SALE SESSION IN WHICH THE HORSE IS PURCHASED, the buyer shall file with AuctionWare, LLC (fax: 405-273-8959 or firstname.lastname@example.org) a written notice of rejection along with veterinary supporting statement of condition of the horse. AuctionWare, LLC may require testing by a second veterinary source of its choice to determine if the horse had the issue at the time of sale. Said veterinarian’s decision will be final.
If the veterinarian determines that the issue or defect(s) was present at the time of sale and was not announced, the horse will be subject to return. Upon any such return, the owner will owe Auctionware, LLC the sale expenses and sale commission (8%) or $1,000.00, whichever is greater, and the cost of all veterinary services performed. All arrangements and expenses to return the horse are solely those of the owner.
If the horse is found by the second veterinarian to not have the alleged issue or defect, the sale of said horse is valid and enforceable and the buyer assumes all costs associated including veterinary services.
It is the intent of AuctionWare, LLC to make every effort to record the entire auction which shall be used to settle disputes regarding statements made about horses while in the auction arena. In the event of disputes, the final veterinary examination and recording will be used to settle said dispute.
8 UPSET BID
Unless waived by announcement, there shall be a minimum “upset (starting) bid” of $1,000.00 for any horse presented for sale. If the “upset (starting) bid” is not received, the horse shall be automatically considered withdrawn by the owner as unsold and all expenses become due by owner to AuctionWare, LLC. No horse will be sold for less than $1,000.00.
9 OWNERS RIGHT TO BID
This auction is conducted “with reserve”, meaning the right to bid is reserved by the owner. To protect the desired sale price for the horse, owner or its representative must:
a.be the final bidder and sign the Buyers Acknowledgement Of Purchase And Security Agreement OR
b.deliver a completed official reserve bid form to AuctionWare, LLC, (either in the sale office or at the auction block with assistance of a sale staff member) prior to the sale of the horse OR
c.instruct AuctionWare, LLC, or its designated representative of the amount of the reserve bid
Owner must make known to AuctionWare, LLC for announcement that the horse has been repurchased or passed-out BEFORE LEAVING THE AUCTION ARENA. UPON REPURCHASE, OWNER AND BIDDERS ARE ENCOURAGED TO COMPLETE A SALE, IF POSSIBLE, AND AGREE TO STRICTLY HANDLE THE TRANSACTION THROUGH THE SALE OFFICE.
AuctionWare, LLC reserves the right to bid on the behalf of the owner up to the amount of the reserve bid. If the owner or its representative makes a final bid equal to or greater than the reserve, owner will pay the 8% sale commission due.
10 BIDDING PROCESS, DISPUTES, MALFUNCTIONS
The Auctioneer reserves the right to reject any and all bids. Should any dispute arise between two or more bidders, the Auctioneer shall settle said dispute and that decision shall be absolute, final and binding on all parties. BIDS RECEIVED AFTER THE FALL OF THE AUCTIONEER’S GAVEL ARE NOT GROUNDS FOR DISPUTE.
In case two or more bidders claim the final bid, the Auctioneer may re-open the bidding procedure and ask for advanced bids, solely between the bidders having claimed the last bid. If there is no advanced bid, the horse shall be sold to the bidder from whom the Auctioneer recognized the final bid. If the bid should be reduced below the disputed bid, the Auctioneer may re-open the bidding with the highest bidder becoming the buyer regardless of whether the final bid equals or exceeds the original disputed bid.
In the event of known equipment malfunction, the auction will be stopped. If the malfunction has not affected the sale of horses sold prior to the malfunction, they will be considered sold. The auction will proceed upon correction of the malfunction.
11 TITLE AND RISKS
Title transfers immediately to the buyer at the final fall of the Auctioneer’s gavel. Title transfer includes all risk of loss including but not limited to illness, injury or death of the horse. Additionally, at title transfer, the buyer assumes all responsibility for the care and maintenance of the horse, for any loss or damage to property and for injury or death of persons caused by the horse, buyer or buyer’s employees. Additionally, buyer agrees to hold harmless AuctionWare, LLC for such loss or damage.
TITLE AND RISKS ARE ASSUMED BY THE BUYER WHETHER OR NOT SETTLEMENT AND DELIVERY HAVE BEEN MADE. THIS SHALL ESPECIALLY BE THE CASE WITH PURCHASES MADE BY PHONE OR ONLINE.
12 BUYERS ACKNOWLEDGEMENT OF PURCHASE AND SECURITY AGREEMENT
After making a winning bid on a horse, a Buyers Acknowledgement Of Purchase And Security Agreement will be completed by the buyer (or on behalf of the registered phone/online bidder) that will confirm the hip number and final sale price for invoicing and transfer. Any buyer who makes a winning bid and signs (or so authorizes the signing of) the Buyers Acknowledgement Of Purchase And Security Agreement is responsible for that purchase and cannot assign new ownership to a second party unless approved by AuctionWare, LLC. In the event a clerical mistake is made regarding the written entry of the final bid on the Buyers Acknowledgement Of Purchase And Security Agreement, that correction will be made with no liability to AuctionWare, LLC. All disputes regarding final bids shall be settled by Auctioneer and/or sale recording.
If the highest bidder fails to immediately execute the Buyers Acknowledgement Of Purchase And Security Agreement or otherwise fails to comply with these terms or in the event of an announced mistake by the Auctioneer, AuctionWare, LLC reserves the right to accept the same purchase amount from another buyer, accept the next highest bid, put the horse up for sale a second time, or retain the horse for the owner as unsold. However, nothing shall prevent AuctionWare, LLC and/or the owner from pursuing whatever legal remedy may be available to compel the original buyer to perform as set out herein.
14 ACCOUNT SETTLEMENT
All accounts must be paid in full within one (1) hour of the conclusion of the final sale session of the auction. ALL PAYMENTS MUST BE MADE DIRECTLY TO THE SALE CASHIER AND NOT TO THE OWNER, UNDER ANY CIRCUMSTANCE. All payments must be in the form of US currency and drawn on US banks only. Methods of payment accepted:
2.US Cashier’s Check
3.US Bank Drawn Approved Check
4.US Money Order
5.Mastercard, Visa, Discover & American Express
6.American Express Travelers Check
7.Pre-sale Escrowed US Funds Designated for Sale Purchases
PLEASE NOTE: All funds are cleared electronically immediately following each sale session.
NO BANK DRAFTS ARE ACCEPTED. NO POST-DATED CHECKS ARE ACCEPTED. A 4% office processing fee will be added to all purchases however this fee will be discounted for purchases paid by cash, cashier’s check, check, money order, travelers check or escrowed funds. A CONVENIENCE FEE OF 3% WILL BE CHARGED FOR ALL ONLINE PURCHASES, TO BE PAID BY THE BUYER AS PART OF THE PURCHASE PRICE.
15 PERSONAL CHECK LIABILITY
Any person issuing and signing a personalized check or authorizing a credit card purchase in the State Of Oklahoma will be held liable for the amount of the transaction. Writers of any returned check or disputed credit card purchases will be turned over to the local district attorney and the Texas Southwestern Cattle Raisers Association and will be prosecuted to the fullest extent of the law.
In addition to a $50.00 NSF charge, there will be a $500.00 fee for all returned checks that are not repaid by banking wire transfer within one day of the return date of the check.
Buyers who fail in any respect whatsoever to pay for any horse under these terms shall be declared in default. Any horse purchased by a defaulter may be resold by AuctionWare, LLC at public or private sale without notice for buyer’s account. Costs of such resale will be those of the defaulter. Should such resale fail to satisfy the defaulter’s account in full, defaulter will immediately pay to AuctionWare, LL, the amount owing or be subject to legal suit. The defaulter will be responsible for all costs, including attorney’s fees incurred by AuctionWare, LLC in collection of amounts owing for horse(s) purchased, or in enforcement or interpretation of this term of sale.
17 LIEN/SECURITY INTEREST
To secure the payment of the purchase price and expenses for any horse purchased, together with all other indebtedness owed or hereafter owing by the buyer to AuctionWare, LLC the buyer hereby grants a purchase money security interest and lien in and to each horse described in or covered by the Buyers Acknowledgement Of Purchase And Security Agreement and all accounts, contract rights, registration papers, breeder’s certificates, records, general intangibles, proceeds and products relating thereto.
18 TRANSFERS/REGISTRATION CERTIFICATES
NO REGISTRATON CERTIFICATES FOR PURCHASED HORSES WILL BE RELEASED AT THE SALE. THERE IS ABSOLUTELY NO EXCEPTION TO THIS RULE. ALL PAPERWORK WILL BE HELD BY AUCTIONWARE, LLC UNTIL BUYER’S PAYMENT BECOMES UNCONDITIONAL PAYMENT.
The transfer fee is the responsibility of the owner and will be deducted from the owner’s account. Registration certificate, completed transfer and current fee will be mailed directly to the AQHA or directly to the buyer by AuctionWare, LLC, at the buyer’s choice. If the paperwork goes to the AQHA, the buyer will receive the original registration certificate directly from the association after the transfer process is complete. Registration certificate, completed transfer and current fee for breed registries other than AQHA will be mailed by Auctionware, LLC to the buyer. Any registration certificate being processed by the proper breed association at the time of sale, will be forwarded to AuctionWare, LLC which, in turn, will be sent directly to the buyer.
A complimentary shipping halter and lead will be provided for each horse sold. Buyers may pick up halters in the sale office after full account settlement has been made. DO NOT leave the auction arena with any leather show halter provided by AuctionWare, LLC.
20 STABLE RELEASE
To remove a horse from the sale grounds, buyer must obtain a stable release from the sale office after full settlement. Buyer must present gate security the release to remove any horse from the sale grounds. Hip number must be present and legible for horses to be released from the sale grounds.
21 HIP NUMBERS AND STALLS
Leave hip number on the sale horse and leave horse in the original sale stall. Stable releases will be checked against hip number. No horse will be released from sale grounds without a legible hip number.
22 POST SALE REMOVAL
All sale horses must be removed from the sale grounds by 9:00 am on the day following the last sale session. Horses on the grounds after this time remain at the risk, responsibility, and expense of the buyer. Any delays in shipping must be pre-approved by sale office management. Any expenses incurred by AuctionWare, LLC due to an extended stay on the grounds will be reimbursed by the buyer. A phone/online bidder must provide pre-arranged transportation and care details to AuctionWare, LLC, during buyer registration.
B. ADDITIONAL CONDITIONS OF SALE – (FOR ANY FORM OF ABSENTEE BIDDING)
Absentee bidders may participate in this sale by bidding by phone or online through the Triangle Sales/Auctionware LLC online live bidding platform.
Every potential absentee bidder must pre-register prior to bidding by phone or online. A completed absentee bidder registration form and prior approval must be completed by the Wednesday before the sale, 5:00 pm Central Time.
Auctionware LLC reserves the right to accept or reject any request for absentee bidding participation at this sale.
All absentee bidders agree to all Conditions Of Sale, Sale Terms and all Announcements as well as such additional terms as may be necessary. When making a phone or online bid, bidder accepts personal liability to pay the purchase price.
Any absentee bidder who places a bid expressly acknowledges and agrees to the following:
a) phone and online bidding rely upon technology that may malfunction without warning and through no fault of Triangle Sales/Auctionware LLC;
b) phone and online bidding are being provided on an “AS AVAILABLE” and “AS IS” basis and Triangle Sales/Auctionware LLC does not guarantee continual, uninterrupted or error free phone or online bidding;
c) Triangle Sales/Auctionware LLC shall be absolved from any and all liability related to or arising from any interruption in service, errors and/or omissions with respect to phone or online bidding; and
d) Each absentee bidder who places a phone or an online bid shall hold Triangle Sales/Auctionware LLC harmless from any loss or claim resulting therefrom.
In the event of a technology issue of any type (including, but not limited to, malfunctions affecting, or resulting in a temporary inability to use online bidding platforms, computers, telephone servers, or any similar technological equipment or software), Triangle Sales/Auctionware LLC reserves the right, exercisable in its sole and absolute discretion, to temporarily suspend phone and/or online bidding.