Legal

Agistment Agreement – Terms and Conditions

SUPREME THOROUGHBREDS Pty Ltd (ABN 22 131 792 982)
14 Waldemar Road, Eaglemont, Victoria 3084, Australia
Tel: 0439 033 129 | Email: info@supremethoroughbreds.com.au

This document is our Agistment Agreement. It will apply to each Horse from the time it is delivered by the Owner or the Owner's agent and accepted by us onto the Property. Delivery of the Horse will constitute the Owner's acceptance of all terms and conditions. Effective from 1/9/2019.

1. Appointment

1.1 The Proprietor will: (a) take possession and day-to-day control of the Horse; and (b) exercising reasonable care, skill and diligence, provide the services in a proper and efficient manner in accordance with normal standards applying in relation to the agistment of thoroughbred horses.

1.2 Despite clause 1.1, but subject to clause 11, all risk in relation to the physical well-being of the Horse will remain with the Owner.

1.3 This Agreement is irrevocable and legally binding upon the parties from the Effective Date. Any right or obligation accruing under this Agreement during the Term will not be affected or prejudiced by it ending.

1.4 Associated Entities. Additional services may be provided by Associated Entities of the Proprietor. If any such additional services are provided by an Associated Entity of the Proprietor, and such Associated Entity does not have a separate agreement with the Owner, then this Agreement will apply mutatis mutandis.

1.5 Multiple Party Ownership Arrangements. If multiple parties own the Horse: (a) this Agreement binds them both individually and collectively; and (b) unless otherwise agreed with the Proprietor in writing, co-owners will be jointly and severally liable for all obligations and must nominate a manager as their duly authorised agent.

2. Delivery and Removal of Horse

The Owner or the manager must: (a) complete all procedures and documentation required by the Proprietor prior to delivering the Horse to the Property; and (b) comply with a direction given by the Proprietor at any time to remove the Horse from the Property.

3. Services

3.1 The Proprietor's services include: (a) caring for and maintaining the Horse, including providing agistment, stabling, feed and supplements; (b) as the agent of the Owner, procuring the services of Third Party Service Providers as necessary, including veterinary care, farriery, dentistry and transportation; and (c) communicating regularly with the Owner in relation to the Horse.

3.2 If the Horse is a mare, the Proprietor may at any time wean any foal-at-foot and undertake ASB identification and parentage validation procedures.

3.3 If the Horse is an Entire, the Proprietor must obtain the Owner's approval before authorising that it be gelded.

3.4 Except in circumstances that do not afford the Proprietor the opportunity to obtain veterinary advice and the Owner's approval, the Proprietor must not authorise that the Horse be euthanised unless such action is recommended on humane grounds and certified by a qualified equine veterinarian.

3.6 If the Proprietor arranges for the Horse to be relocated, sold or otherwise disposed of, such arrangement will be made as the Owner's agent and the Proprietor will no longer be responsible for the care and well-being of the Horse.

4. Fees and Expenses

4.1 The Proprietor's current basic fees and charges are set out in the Fees Notice. The Proprietor may impose reasonable additional charges for additional services and may vary fees and charges, providing 14 days' notice to the Owner of any increase.

4.2 The Owner must pay or reimburse the Proprietor and any Third Party Service Provider all fees and expenses of caring for the Horse, including agistment, chiropractic, dentistry, farriery and veterinary fees, and transportation costs.

4.3 The Proprietor may require the Owner to advance money to cover the estimated cost of specified surgery or extraordinary veterinary treatments.

4.5 The Proprietor's preferred method of payment is by EFT, or by Mastercard or Visa credit card.

5. Insurance

Unless otherwise agreed in writing, the Owner is responsible for arranging their own insurance cover for mortality and other insurable risks in relation to the Horse.

6. Visitation

The Owner or the manager may, by appointment, attend at the Property to inspect the Horse. Visitation will be entirely at the Owner's own risk. The Proprietor will not be liable for any risk associated with such visitation that is either an Inherent Risk or any risk that was insignificant or not reasonably foreseeable.

7. Proprietor's Right of Indemnity

The Owner must indemnify the Proprietor against all expenses and liabilities properly incurred by the Proprietor in relation to this Agreement.

8. Limitations to Owner's Right of Indemnity

8.1 Neither the Proprietor nor any Third Party Service Provider will be liable to the Owner for damages for harm suffered by the loss or diminution in value of the Horse if it dies or its value is diminished as a consequence of an Inherent Risk or any other risk that was insignificant or not reasonably foreseeable.

8.2 Except for any right of indemnity specifically preserved by this Agreement, the Owner expressly surrenders any right to claim damages against the Proprietor or any Third Party Service Provider. Any right of indemnity not capable of surrender will be limited to the fair market value of the Horse at the time of the cause of action arising.

8.3 This Agreement is subject to applicable statutory provisions, including the Competition and Consumer Act 2010 (Cth).

9. Lien and Charge

9.1 The Owner grants to the Proprietor a Lien over the Horse and a Charge over the Horse and Proceeds, as security for the proper performance of the Owner's obligations under this Agreement.

9.2 This Lien or Charge entitles the Proprietor to possession of the Horse until all amounts due are paid, and includes the right to sell the Horse if the Owner's breach of this Agreement occurs.

10. Owner's Sale or Encumbrance of Horse

If the Owner elects to sell or otherwise dispose of the Horse while any fees and charges are outstanding, the Owner must first either pay all such outstanding fees and charges, or obtain the Proprietor's approval. The Owner will remain liable for any fees and charges not paid by the purchaser or acquirer.

11. Acknowledgements, Undertakings and Warranties

11.1 The Proprietor acknowledges that the Owner has neither made any representation nor provided any warranty in relation to the Horse.

11.2 The Owner acknowledges entering into this Agreement at their own risk and that the Proprietor has neither made any representation nor provided any warranty in relation to the services to be provided.

11.3 The Owner undertakes not to remove the Horse from the Property while any fees are outstanding, and not to assign their rights or obligations under this Agreement without first obtaining the Proprietor's approval.

12. Further Acknowledgments and Declarations

12.1 The Owner acknowledges that owning, breeding and racing thoroughbred horses is speculative and involves risks, and that prior to entering into this Agreement, the Proprietor provided the "WARNING – IMPORTANT INFORMATION" attachment.

12.2 The Owner declares that prior to the Effective Date the Owner has had the opportunity to obtain independent legal advice and to inspect the Property.

13. GST

This Agreement constitutes a Taxable Supply under the GST Act. Any fee or charge has GST included unless specifically stated as exclusive of GST.

14. Owner's Default

14.1 If the Owner breaches a material obligation under this Agreement, the Proprietor may charge interest on outstanding amounts and issue a Default Notice requiring the breach to be remedied within 14 days. If the breach is not remedied, the Proprietor may pursue all contractual and legal remedies, including the right to sell the Horse.

14.4 If the Proprietor undertakes any account management or debt recovery action, they will be entitled to recover all fees and expenses including legal costs on a full indemnity basis.

15. Termination

This Agreement will have full force and effect until: (a) the Horse dies, is sold or otherwise disposed of; (b) the Proprietor elects to end this Agreement and directs the removal of the Horse; or (c) the Owner elects to end this Agreement and to remove the Horse. In any event, the Proprietor will be entitled to invoice for all services provided until the Horse is removed and must be paid before the Horse is removed.

16. PPSA

The provisions of this Agreement constitute a Security Agreement under the Personal Property Securities Act 2009 (Cth). The Owner grants to the Proprietor a Security Interest attaching to the Horse and Proceeds, consents to registration on the PPSR, and undertakes not to grant any Encumbrance to any other person without the Proprietor's written consent.

17. Notices

Any notice given under this Agreement will be deemed properly given if in writing and delivered by prepaid mail, facsimile or email. Email notices are deemed served on the day after transmission.

18. Further Assurances

The parties must at their own cost execute any instrument and do any act or thing required to give effect to this Agreement.

19. Governing Law

This Agreement is governed by the law of the Commonwealth of Australia and of the state or territory where the Property is located.

20. Definitions

Associated Entity – has the meaning given in the Corporations Act 2001 (Cth).
Charge – the right to seize and sell, including a power of sale.
Default Notice – a notice detailing the breach by the defaulting party of an obligation under this Agreement.
Effective Date – the date upon which this Agreement is adopted, evidenced by delivery and acceptance of the Horse.
Encumbrance – any Security Interest or any right, interest or arrangement giving another person a preference or priority over creditors.
Entire – a male horse that has not been gelded.
Fees Notice – any document providing a reasonable estimate of the fees and expenses the Owner will likely incur.
Horse – any thoroughbred horse delivered by the Owner and accepted by the Proprietor onto the Property.
Inherent Risk – a risk of something occurring that cannot be avoided by the exercise of reasonable care.
Lien – the right to retain.
Owner – the holder of the legal and beneficial title to the Horse, or the lessee of the Horse.
PPSA – Personal Property Securities Act 2009 (Cth).
PPSR – the Personal Property Securities Register under the PPSA.
Proceeds – proceeds of sale or of any insurance claim paid in relation to the Horse.
Property – any property or place where the Proprietor provides the services.
Proprietor – Supreme Thoroughbreds (ABN 22 131 792 982), including its directors, officers, employees, servants and agents.
Third Party Service Provider – any external service provider contracted by the Proprietor to provide services in relation to the Horse.

Warning – Important Information

The ownership, breeding and racing of thoroughbred horses involves risks, including Inherent Risks and other risks that may be insignificant or not reasonably foreseeable. Be aware that:

• The value of the Horse may be diminished or lost through market forces, the death of the Horse, or the materialisation of an Inherent Risk, including accident, illness, injury, infertility or subfertility, or natural cause.
• The Proprietor's Property and other places where the Horse may be located can be dangerous places. Entering onto those places involves the risk of injury, accident and loss or damage to person or property.
• Payment Obligations: The Owner should be aware that the Horse may be sold lawfully by the Proprietor if the Owner does not pay all invoiced fees and expenses when due.