MRS 230.357 makes it unlawful to receive money or any item of value in excess of $500.00 in connection with the sale or purchase of a horse except with full disclosure and written consent of both Purchaser and Seller; provided, however, this prohibition shall not be applicable where the Agent is acting solely for and compensated solely by his Principal. Private Agreements: In the event Seller and/or Consignor makes arrangements with prospective Bidders/Purchasers prior to sale which differ from these Conditions, Keen eland shall have no responsibility in regard to any such agreements, and the enforcement thereof shall be the responsibility of the parties to the agreement; provided, however, a change in ownership of a horse in this sale after the horse is on Keen eland sales grounds must be disclosed by the Seller and/or Consignor to Keen eland in writing, and in that event, may be sold, with an Announcement by the Auctioneer disclosing that a change in ownership has occurred.
In the event the Bidder who had the highest and last bid at the fall of the hammer fails or refuses to sign the Acknowledgement of Purchase and Security Agreement when presented to said Bidder by Keen eland, Keen eland may elect at its sole discretion, to either re-enter the horse at the same or next available sales session, or withdraw the horse entirely from the sale. Further, Seller, Consignor and Bidder agree to hold Keen eland harmless for any deficiency or loss incurred by any of them resulting from such action.
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), Keen eland reserves the right, exercisable in its sole and absolute discretion, to temporarily suspend bidding, extend the relevant bidding period, cancel the sale, reoffer the horse affected for sale, or continue with the sale for Bidders present at Keen eland. In the event a horse is sold with a reserve higher than that placed by the Consignor (including, without limitation, a reserve placed on a horse when none was directed by the Consignor), the horse if not sold to a Purchaser, at the option of Consignor, shall be brought back in the ring to be offered for sale and Seller, Consignor and Keen eland agree that Keen eland shall waive all of its commission, including any entry fees paid, as liquidated damages and neither party shall have any other rights, claims or obligations to the other arising out of the reserve error.
PASSING OF TITLE; RISK OF LOSS; DELIVERY: Except as provided in this Condition FIFTH and Condition ELEVENTH, title and risk of loss pass to the Purchaser at the fall of the auctioneer’s hammer, at which time Purchaser shall be responsible for the care, custody, control and security for the horse and for all expenses relating thereto. However, for horses two years of age or older, which are not being sold for breeding purposes only and which are being shipped out of state (and thus in interstate commerce) (herein “Racing Prospects”), title, risk of loss and possession shall remain with the Consignor until the horse(s) is delivered to a licensed interstate common carrier (or its duly authorized representative/employee) to be hired by Keen eland, at which time title, risk of loss and possession shall pass to the Purchaser.
Seller, Consignor and Purchaser agree to release, defend, indemnify and hold Keen eland, and the owners and/or operators of the facilities and their directors, officers, employees, agents and representatives, harmless from all losses, damages, expenses, claims, causes of action and/or attorneys’ fees arising out of or related to the possession, care, custody, control or maintenance of any horse either sold or purchased by them, including, but not limited to, any claims arising out of injuries or damage caused by the horse. Purchaser or his representative shall present a “stable release” to designee of Keen eland in order to be permitted to remove any horse from Keen eland sales grounds after taking possession; but in any case taking possession of the horse by Purchaser or his representative shall constitute delivery and acceptance, except for Racing Prospects in which case delivery and acceptance shall take place only after Keen eland has delivered said Racing Prospects to a licensed interstate common carrier (or its duly authorized representative/employee).
In the case of Racing Prospects, Purchaser shall reimburse Keen eland for costs of and relating to transport upon invoice. Keen eland further reserves the right, in its sole and exclusive discretion, at any time and for any reason (except race, sex, color, or creed), to revoke any credit previously established and to therefore refuse to accept the bid(s) of a Purchaser who has not established prior to his bid(s), that payment will be made in full within sixty (60) minutes from fall of the hammer.
Keen eland may, in its sole and exclusive discretion, elect to make full or partial settlement with Consignor despite a default by Purchaser. On final settlement for a horse, or the approval of the Purchaser’s credit by Keen eland, Keen eland will issue a “stable release” which must be presented by the Purchaser to the stable manager for delivery of the horse as provided in Condition FIFTH.
If the Consignor fails to make its election within said thirty (30) minutes, the horse, in Keeneland’s sole discretion, may re-enter the auction ring during the same sales session, and then be sold with the prior attempted sale to the Defaulter being voidable by Keen eland, which shall be binding on all parties. Purchasers who have purchased on credit, and who fail in any respect whatsoever to pay for horses within fifteen (15) days after the sale, shall likewise be in default and Keen eland shall have the right to bring suit against the Defaulter and/or to repossess the horse and its registration papers and in connection therewith, Keen eland shall be entitled to the recovery of its costs, including without limitation all reasonable attorneys’ fees, from the Defaulter.
Should such resale fail to satisfy the Defaulter’s account in full, Defaulter shall be responsible for any such deficiency balance and shall pay Keen eland the amount owing, including late charges, all reasonable attorneys’ fees, costs of such litigation and any other damages available to Keen eland by law, including reimbursement for all expenses in caring for and insuring said horse. THERE IS NO WARRANTY, EXPRESS OR IMPLIED, BY ENGLAND, SELLER AND/OR CONSIGNOR, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY HORSE OFFERED IN THIS SALE.
SUBJECT TO THE LIMITED WARRANTIES STATED HEREIN, ALL SALES ARE MADE ON AN “AS IS” BASIS, WITH ALL FAULTS AND DEFECTS. A bilateral crypt orchid is defined as a colt which does not have any testes palpable in the entirety below the external inguinal ring.
The following conditions of a horse must be so disclosed by placing a veterinary certificate in the Repository (see Condition TWENTY-FIRST) on a timely basis as required by Keen eland, reasonably disclosing that one or more of the following conditions are applicable OR in lieu thereof must be so announced at time of sale : all horses that (i) possess any deviation from the norm in the eyes; (ii) are a “wobbler” (defined as a horse which suffers from a neurological disease caused by compression of the spinal cord and resulting in lack of balance and coordination) and/or have undergone any corrective surgery related thereto; (iii) are two years of age or less and have undergone (a) invasive joint surgery, or (b) surgical intervention of the upper respiratory tract; (iv) have undergone abdominal surgery of any type that occurred in the last two (2) calendar years preceding the day of sale and any resection of an abdominal organ (partial or complete) at any time except to repair a ruptured bladder in a newborn foal; or (v) have been nerved. Any horse whose condition is as aforesaid and is not so announced or disclosed as required above will be subject to return to Consignor with refund of purchase price, provided that Keen eland is so notified in writing by veterinary certificate, of such condition and the rejection or revocation of acceptance of the horse (“Rejection”) on the above grounds shall meet the time requirements and process set forth herein.
Consignor shall have the sole responsibility concerning the accuracy of the disclosure/announcements of the condition of any horse as aforesaid and required above, and Seller, Consignor and Purchaser agree that Keen eland is absolved from any liability relating to such announcements/disclosures and each agrees to hold Keen eland harmless from any loss incurred relating to such announcements/disclosures and any claims resulting therefrom. Seller, Consignor and Purchaser further agree that Keen eland is absolved from any liability relating to Prohibited Practices (hereafter defined) and each agrees to hold Keen eland harmless from any loss incurred with respect to Prohibited Practices (as hereafter defined).
Acupuncture and/or Electro-Stimulation with the intent of altering laryngeal function once the horse enters the Keen eland sales grounds. Any invasive practice which intentionally conceals a material defect or chronic lameness.
Internal blister or other injections to the knee intended to have the effect of concealing the true conformation of the horse. Time Requirements: The physical condition of horses is subject to material change on a daily basis.
(A) 48 hours from the end of the session at which the horse in question was sold for cribbers, description as a colt/crypt orchid/gelding, deviation from the norm in the eyes, cobblers or Prohibited Practices. Notice Requirements for Rejection: Purchaser may avail himself of the remedy of Rejection as a result of the breach of the above limited warranties only upon complying with the following: (i) written statement from Purchaser notifying Keen eland of its intent to elect Rejection must be received by Keen eland within the time period prescribed herein; (ii) delivery of a veterinary certificate stating such veterinarian’s opinion that the horse in question has not met one or more of the above limited warranties within the time period prescribed herein.
Seller, Consignor and Purchaser acknowledge that having Keen eland appoint the third veterinarian is fair and reasonable to each of them. Notwithstanding any prior custom and usage of the trade, horses which have not raced and which are sold as racing prospects in this sale after July 1 of his/her yearling year, at the election of Purchaser, shall be subject to a post- sale upper respiratory laryngoscope evaluation (excluding the trachea) through a veterinarian specializing in equine practice of Purchaser’s choosing within twenty-four (24) hours from the end of the session in which the horse in question was auctioned and prior to the horse leaving Keen eland sales grounds.
If the Purchaser’s veterinarian is of the opinion that the horse has: (i) laryngeal hemiplegia (consistent immobility or inability to fully abduct the carotenoid cartilage), (ii) postal displacement of the palatopharyngeal arch, (iii) epiglottis entrapment, (iv) permanent dorsal displacement of the soft palate, (v) enchondroma or severe carotenoid chondroitin, (vi) subepiglottic cyst(s) or (vii) cleft palate (“Negative Certificate”), then Purchaser shall so notify Keen eland, in writing, within twenty-four (24) hours from end of the session in which the horse in question was auctioned and prior to the horse leaving Keen eland sales grounds, and shall further furnish Keen eland within that time period with a copy of the Negative Certificate. The decision of the Panel shall be final, binding and conclusive on all parties, absent fraud or bad faith.
For purposes of resolving issues arising out of Conditions TENTH and TWELFTH, a Panel of three (3) veterinarians shall be selected. Seller, Consignor and Purchaser acknowledge that the selection process set out herein is fair and reasonable to each of them.
ANABOLIC ANDROGENIC STEROIDS; BRONCHODILATOR; NSAID; SYSTEMIC CORTICOSTEROIDS; INTRA-ARTICULAR INJECTIONS; BISPHOSPHONATES Limited Warranties: Consignor warrants that any weaning, yearling, two-year-old and horse of racing age (which excludes all broodmares, broodmare prospects, stallions and stallion prospects that are not to be raced) entered this sale shall not have been administered at any time any anabolic androgenic steroids (“AS”) or any bronchodilator, NSAID, systemic corticosteroid, or intra-articular injection in violation of Condition THIRTEENTH of these Conditions of Sale.
Consignor further warrants that any horse under four years old entered the sale shall not have been administered at any time any bisphosphonate. In order for Purchaser to avail himself of either limited warranty he must check the appropriate box on the Acknowledgment of Purchase and Security Agreement for the horse at the time of sale directing Keen eland to have a blood, urine and/or hair sample taken.
Purchaser agrees to pay Keeneland’s direct costs and administrative expenses in regard to testing the blood, urine and/or hair sample. Purchaser shall be required to exercise due care during the Rejection period in maintaining and boarding the horse.
In the event of a Positive Test, risk of loss shall remain with Purchaser from the fall of the hammer until Consignor has been notified of Purchaser’s election of Rejection, at which time risk of loss passes back to the prior owner, notwithstanding any other provision of these Conditions of Sale. In addition, neither Purchaser nor Consignor shall have the right nor shall Keen eland have any obligation to conduct testing of a split sample.
Keeneland’s decision concerning whether there is a Positive Test, as long as same is supported by the testing laboratory selected by Keen eland, shall, absent fraud or bad faith, be fully binding upon Consignor, Purchaser and all other interested parties. Any Horse in Training or Two-Year Old in Training (1) which has been nerved; (2) is currently on the Starter’s, Steward’s or veterinarian’s list at a licensed racecourse; or (3) is officially designated as a “bleeder” must be so announced at the time of sale OR in lieu of announcement at the time of sale, must be so disclosed by placing a statement with a description and/or a veterinary certificate in the Repository (see Condition TWENTY-FIRST) on a timely basis as required by Keen eland reasonably disclosing that one or more of the conditions are applicable.
If Rejection is requested by Purchaser on the basis of noncompliance with items (1), (2), or (3) of this Condition TWELFTH with respect to a Horse in Training or Two-Year-Old in Training, Purchaser must give written notice to Keen eland within fourteen (14) days of the sale of the horse and Keen eland shall conduct such investigation as it deems appropriate and determine whether either items (1), (2), or (3) is applicable, and if so, the sale shall be cancelled, the horse returned and payment refunded. Further, Consignor agrees to place in the Repository contemporaneously with the arrival of the Two-Year-Old in Training or Horses in Training on Keen eland sales grounds a disclosure statement, which shall be updated daily, signed by a duly licensed veterinarian, which provides a listing of all medications and treatments, including dosage and route of administration, administered to each horse in Consignor’s consignment within fourteen (14) days of sale.
With regard the Two-Year-Old in Training or Horse in Training which has an injury or disease of the bone structure which, in the opinion of a veterinarian, would more likely than not materially and adversely affect its suitability for training and racing, Purchaser may elect Rejection only upon complying with the following: (i) written statement from Purchaser requesting Rejection must be received by Keen eland within twenty-four (24) hours after the session in which the horse is sold and before the horse leaves Keen eland sales grounds, (ii) radiographs of the subject horse must be taken within twenty-four (24) hours after the session in which the horse is sold and before the horse leaves Keen eland sales grounds, and (iii) copies of the radiographs together with Purchaser’s veterinary certificate (“Negative Certificate”) containing the opinion of Purchaser’s veterinarian describing in detail the specific defect on which the claim is based and that such defect, in the opinion of the certifying veterinarian will, more likely than not, materially and adversely affect the horse’s suitability for training and racing. In the event of a receipt by Keen eland of a Negative and Positive Certificate within the timeframes set forth herein, Keen eland will provide Consignor and Purchaser with a list of a minimum of five (5) veterinarians and a Panel of three (3) veterinarians shall be convened in the same manner as provided for in Condition TENTH.
Seller, Consignor and Purchaser acknowledge that the selection process is fair and reasonable to each of them. The Panel shall determine, based upon such examination(s) that each Panel member determines appropriate to support their respective decisions, whether the horse has an injury to or disease of the bone structure which will, more likely than not, materially and adversely affect its suitability for training and racing, which was not reasonably revealed on the Repository radiographs, and in that event the sale shall be Rejected.
The decision of the Panel shall be final, binding and conclusive on all parties, absent fraud or bad faith. MEDICATION CONDITIONS: Consignor for himself and all Sellers and others interested in any horse being sold agrees and acknowledges that Keen eland has the right, in its sole discretion, to conduct drug tests upon any horse entered by Consignor in this sale and Consignor hereby gives Keeneland’s representative(s) access to the horse necessary to obtain samples (including, without limitation, urine, blood, hair or other samples) for testing as said representative(s) deems appropriate, in his sole discretion.
No more than one (1) corticosteroid shall be administered at or below the manufacturer’s recommended dosage within twenty-four (24) hours prior to the beginning of the session in which the horse is to be sold. The detection of a detectable concentration of any such prohibited substance in a post- sale sample of blood, urine, hair or any combination of blood, urine or hair in a Two-Year-Old in Training or Horse in Training (as defined herein) shall constitute a violation of this rule.
No bronchodilator (including without limitation Albuterol) shall be administered to a weaning, yearling, two-year-old and horse of racing age (which excludes all broodmares, broodmare prospects, stallions and stallion prospects that are not to be raced) within ninety (90) days prior to the sale of a horse. Notwithstanding the foregoing, in the event any bronchodilator (including without limitation Albuterol) is administered to a horse prior to July 1 of a horse’s yearling year for valid, on-label purposes, the same shall be disclosed in the Repository with a note of explanation from the treating veterinarian.
In the event said veterinary disclosure is made and purchaser (itself or through its agent) accessed the Repository after such disclosure had been made, Purchaser shall not have the right of Rejection in the event of a Positive Test for the presence of a bronchodilator (including without limitation Albuterol) pursuant to Condition ELEVENTH. Seller, Consignor and Purchaser acknowledge that having Keen eland appoint the Third Party Veterinarian is fair and reasonable to each of them.
If she is found to be pregnant, when sold as not pregnant, the Purchaser may, as stated above, elect Rejection or may accept the sale, but in that event should the Purchaser choose to register the resulting foal with The Jockey Club, the Purchaser shall pay the applicable stud fee, plus any applicable Kentucky sales tax, prior to having any rights to the Stallion Service Certificate relating to the resulting foal. Consignors who have actual knowledge that the broodmare has, within the last two years, undergone either (i) a cesarean section delivering a fetus, or (ii) surgery involving the cervix, or (iii) an urethral extension, or (iv) the removal of an ovary, must be so announced at the time of sale or in lieu of such announcement, must be disclosed by placing a veterinary certificate in the Repository (Condition TWENTY-FIRST) on a timely basis as required by Keen eland, reasonably disclosing that one or more of the above conditions are applicable.
Any horse whose condition is as aforesaid and is not so announced or disclosed in the Repository as required above will be subject to Rejection and return to Consignor with refund of purchase price, and all proper expenses, fees and interest as provided in Condition NINTH, provided that Keen eland is so notified in writing by a veterinary certificate of such condition, and the Rejection on the above grounds shall be within fourteen (14) days from the day of sale. For purposes of Condition FOURTEENTH, Keen eland has adopted the following terms and standards recommended by the A.A.E.P.
Accordingly, a report from a positive pregnancy exam at 42 or more days post mating indicates the filly or mare is “pregnant” without further comment. Any filly or mare that is not pregnant at the time of examination shall be characterized as “suitable for mating” if a palpation per rectum of the ovaries, uterus and cervix, and spectrum examination of the cervix and vagina does not reveal significant abnormalities that would indicate that the filly or mare is not reproductively within reasonably normal limits.
Any reproductive examination or statement that a filly or mare is “suitable for mating” thus only indicates either (a) the results of the above-referenced palpation per rectum and spectrum examination on the date performed or (b) the filly or mare was found to be “pregnant” or “pregnant -- __________ days” and does not reflect the examiner’s opinion of the future ability or inability of a particular filly or mare to conceive and deliver a live foal. The physical act of a stallion mounting a filly or mare with intro mission of the penis and ejaculation.
During the period of determining whether the sale shall be Rejected, the horse shall be at the risk of the party who does not prevail. Boarding of the horse during this period shall be arranged by Keen eland with the cost of same to be borne by the non-prevailing party.
All dispute resolutions shall be conducted in Lexington, Kentucky, and the final determination of the Panel, arbitrator or Third Party Veterinarian, as applicable, shall be in writing and signed by the Panel members, arbitrator, or Third Party Veterinarian making or joining in the determination, as applicable. Other than those disputes which are subject to binding resolution as set forth in these Conditions of Sale, for all such other disputes among Seller, Consignor, Purchaser and/or Keen eland arising out of this sale, including but not limited to, any dispute arising under these Conditions of Sale regarding any alleged defect or nonconformity or breach of warranty of fitness, as may be provided herein, of any horse sold, all interested parties agree that Keen eland may seek judicial resolution of such dispute and shall be reimbursed for its reasonable costs and expenses, including interest and attorneys’ fees, pending determination thereof.
In addition, if no party is willing to take possession of the horse which is the subject of the controversy, all interested parties agree that Keen eland may take all such steps as it deems advisable in the maintenance and care of such horse, including, without limitation, board, veterinary care, and any other reasonable expenditures such as insurance coverage. Keen eland has the sole discretion as to making any Announcements concerning the condition of the horse prior to such sale.
Such sale may be made, within the sole and exclusive discretion of Keen eland, with or without notice to the Seller, Consignor or Purchaser. Keen eland reserves the right to withhold delivery of all registration papers for all horses either bought by a Purchaser OR returned to Consignor (in the event of either a withdrawal fee or a chargeback commission) until such time as the Purchaser’s or Consignor’s account with Keen eland shall have been paid in full.
Further, in addition to all other rights and remedies, to the fullest extent permitted by applicable law, all parties acknowledge Keen eland has the right to set off, without further notice to Purchaser or Consignor, and apply funds held by it to satisfy payments owed to Keen eland by Purchaser or Consignor until such time as Purchaser’s or Consignor’s account with Keen eland shall have been paid in full. In order to secure payment of the purchase price or sales commission, Seller, Purchaser and Consignor hereby grant Keen eland a security interest and lien upon the subject horse or horses (and proceeds and progeny thereof), together with all registration certificates and stallion service certificates (including without limitation digital certificate(s)) relating thereto.
All such announcements must be provided to Keen eland at the reserves and updates desk, in writing, upon the earliest of (a) thirty minutes prior to sale of the horse, or (b) at least ten (10) hip numbers prior to sale of the horse. Keen eland has the sole discretion whether to make any such announcements if received after such deadline, or to scratch the horse from the sale.
Stakes engagements, pregnancy status and all other information so listed are as represented by the Consignor, to whom the Purchaser shall look exclusively for redress in case of errors or omissions. Consignor and Purchaser agree to hold Keen eland harmless for any loss incurred by either Consignor, Purchaser or any third party as a result of (a) Keeneland’s failure to make such announcement or (b) incorrect announcements made.
Notwithstanding any contrary provision(s) of these Conditions of Sale, if any, Keen eland further reserves the right to refuse to accept and/or reject and/or ignore any bid(s) from any persons(s) whomsoever, even if credit has been approved or even if payment is tendered or believed to be forthcoming. Provided, however, such exclusion and such refusal to bid(s) shall not be made on the basis of race, creed, color, national origin, sex, political affiliation or beliefs.
Failure to comply with this Condition of Sale will result in the Agent being deemed to be a co-obligor with the Principal with respect to all matters in connection with or arising out of the sale and impose joint and several personal liabilities upon such Agent for any breach of contract. All persons acting as Agents for Principal(s) also are responsible for ensuring that the Principal either has approved credit or makes settlement for the full purchase price for each horse purchased not later than sixty (60) minutes from the fall of the hammer.
All other duties and obligations, including fiduciary and other duties which might otherwise be imposed upon Keen eland by operation of law, are hereby expressly disclaimed, except that Keen eland shall be required to exercise that standard of care generally exercised by other comparable horse auction companies. Bidders/Purchasers acknowledge presale exams may be conducted by physically viewing the horse, by video, by photos, and through an Agent.
Bidders/Purchasers further acknowledge that if the presale exam is insufficient as determined in the sole discretion of the Bidder/Purchaser, said prospective Purchaser shall not bid on the horse. Purchasers will be charged with knowledge of any defect that is or should be revealed by a reasonable inspection, including any defect that is or should be revealed by a review of the Repository information, except the Consignors’ warranties per Condition NINTH (cribbers and Ringling only) and Condition TENTH (upper respiratory, laryngoscope evaluation).
Those limited warranties remain effective as more fully provided for and stated in Conditions NINTH and TENTH, unless Announcement is made by the auctioneer in conjunction with the sale of the horse in question. The presence or use of the Repository shall not change any of these Conditions of Sale, which shall continue to be binding upon all parties, nor does it create any additional express or implied warranties.
In the event it should be determined that Consignor has placed views in the Repository that are not authentic and valid, and/or information in the Repository that is not accurate, valid or authentic in all material respects and which is deemed to be materially misleading regarding the condition of the horse, then the sale is subject to Rejection at the option of Purchaser only upon complying with the time requirements and process set forth herein. In the event it should be determined that a Veterinary Radiographic Report was shared or distributed by Consignor to Purchaser, and said Veterinary Radiographic Report is not accurate, valid or authentic in all material respects and the Veterinary Radiographic Report is deemed to be materially misleading regarding the condition of the horse, then the sale is subject to Rejection at the option of Purchaser only upon complying with the time requirements and process set forth herein.
If Consignor elects to share or distribute a Veterinary Radiographic Report to Purchaser, Consignor shall submit a copy of said report to Keen eland, which Keen eland will retain for the duration of the sale for the sole administrative purpose of facilitating the Panel process, pursuant to these Conditions of Sale. A Purchaser may elect Rejection only upon complying with the following: (i) written statement from Purchaser requesting Rejection must be received by Keen eland within twenty-four (24) hours after the session in which the horse is sold and before the horse leaves Keen eland sales grounds, and (ii) Purchaser’s veterinary certificate (“Negative Certificate”) must be received by Keen eland within twenty-four (24) hours after the session in which the horse is sold and before the horse leaves Keen eland sales grounds containing the opinion of Purchaser’s veterinarian (A) describing in detail the specific information that causes the Repository information not to be accurate, valid or authentic in all material respects and materially misleading regarding the condition of the horse and/or (B) describing in detail the specific information that causes the Veterinary Radiographic Report not to be accurate, valid or authentic in all material respects and the Veterinary Radiographic Report is deemed to be materially misleading regarding the condition of the horse.
In the event of a receipt by Keen eland of a Negative and Positive Certificate, Keen eland will provide Consignor and Purchaser with a list of a minimum of five (5) veterinarians and a Panel of three (3) veterinarians shall be convened in the same manner as provided for in Condition TENTH. In the event the Panel determines, based upon such examination(s), that there are facts and circumstances that cause the Repository information or Veterinary Radiographic Report (if such report is at issue) not to be accurate, valid or authentic in all material respects and such information is deemed to be materially misleading regarding the condition of the horse, the sale shall be cancelled.
The decision of the Panel shall be final, binding and conclusive on all parties, absent fraud or bad faith. Keen eland will not provide the Panel with information regarding the hip number, the name of the Purchaser or Consignor involved in the sale of the horse, or the name of the veterinarian who completed the Veterinary Radiographic Report at issue.
In the event of Rejection, Consignor shall (i) refund the purchase price to Purchaser together with any proper and reasonable expenses incurred by Purchaser including interest at the rate of 12% per annum; (ii) pay Keeneland’s entry fees and commission as if the sale had been final; and (iii) reimburse Keen eland for any reasonable expenses incurred by Keen eland including without limitation attorneys’ fees. Further, if Keen eland determines, in its sole discretion, that Consignor (i) has deliberately and knowingly either placed incorrect information in, or omitted material information from, the Repository which is deemed to be materially misleading regarding the condition of the horse, or (ii) has shared or distributed a Veterinary Radiographic Report which Consignor had actual knowledge contained incorrect information which is deemed to be materially misleading regarding the condition of the horse, Keen eland may elect, in its sole discretion, to impose sanctions against Consignor which may include, without limitation, prohibiting Consignor from selling horses at future sales. The accurate ownership of horses in this sale is encouraged, but not required, to be disclosed by Consignors and/or Sellers.
Any individual accessing the Ownership Registry (1) must present personal identification; (2) must be a registered Bidder/Purchaser, or such Bidder/Purchaser’s duly authorized Agent; (3) shall be required to sign a sworn statement that such individual has a bona fide interest in purchasing, as Principal or, if not Principal, then a representative of the Principal as approved by Keen eland, the horse whose ownership said individual examines, and (4) agrees to keep such ownership information confidential. Further, if Keen eland determines that an individual is or may be accessing the Ownership Registry for purposes other than interest in buying a specific horse(s) at this sale, Keen eland may refuse access to the Ownership Registry to that individual.
It shall be the sole responsibility of the Purchaser to determine the sufficiency of the information available in the Ownership Registry. The presence or use of the Ownership Registry shall not change any of these Conditions of Sale, which shall continue to be binding upon all parties.
The Consignor shall not be responsible for materially inaccurate information supplied to Consignor by Seller, including, without limitation, information regarding change in ownership of a horse required to be placed in the Ownership Registry or disclosed to Keen eland as provided herein, as long as Consignor does not have actual knowledge that the information is materially inaccurate or of the change in ownership. If determined by the Purchaser of a horse, after the sale of the horse, that (a) the information in the Ownership Registry or in the catalog was materially inaccurate at the time of sale of the horse, or that (b) the Seller or Consignor failed to disclose to Keen eland, as required by this Condition, that there was a change in ownership prior to the sale of the horse, the Purchaser shall have the right to collect liquidated damages as set forth herein, from the Consignor and/or Seller, provided that (1) the Purchaser accessed the Ownership Registry regarding the subject horse; (2) the Purchaser has paid for the horse in full; (3) the Purchaser notifies Keen eland of its election to collect liquidated damages within six months from the date of sale of the horse; (4) the Purchaser establishes, by clear and convincing evidence, that there was a material inaccuracy in the Ownership Registry or in the sales catalog at the time of sale of the horse that was not corrected by subsequent notice as required by this Condition, or that the Seller or Consignor failed to disclose to Keen eland, as required by this Condition, that there was a change in ownership prior to the sale of the horse; and (5) the Purchaser establishes, by clear and convincing evidence, that the party from whom the Purchaser seeks liquidated damages had actual knowledge at the time of the sale of such material inaccuracy in the Ownership Registry or sales catalog, or of the failure to disclose change in ownership as required by this Condition.
Keen eland shall have no obligation regarding collection of liquidated damages hereunder, which shall be handled under arbitration. MERGER OF AGREEMENT; CONSTRUCTION: The Consignor, Seller or Keen eland may have made oral statements or published advertisements concerning the physical condition or the racing abilities of the horses described in this catalog or this sale generally.
Such statements or advertisements do not constitute warranties, shall not be relied upon by the Purchasers and are not part of the contract for sale.