TERMS AND CONDITIONS OF TRAINING SERVICES
These terms and conditions are the terms and conditions under which the Owner agrees to have the Owner’s Horse or Horses trained by the Training Company and the designated Trainer, with the support of Esprit Racing acting on behalf of the Training Company.
These terms and conditions are on the Esprit Racing website (www.espritracing.com.au) and will be attached to the monthly accounts rendered to Owners by Esprit Racing on behalf of the Training Company. By paying such an account the Owner accepts and agrees to be bound by these terms and conditions.
The Owner agrees that these terms and conditions are reasonable and that the Owner will be bound by these terms and conditions without exception.
“Agreement” means the Agreement for Training Services.
“Agreement for Training Services” means these terms and conditions and the Schedule.
“Esprit Racing” means Esprit Racing Pty Ltd. (ACN 602 392 745) of XO Accounting, Level 1, 49 Cherry Street, Werribee in the State of Victoria.
“Designated Group Race” means a group 1, 2 or 3 race, as defined in the Rules of Racing.
“Horse” or “Horses” means the horse or horses being trained by the Training Company for the Owner at any time as recorded by the Registrar of Racehorses (and if there are multiple owners in the shares recorded by the Registrar of Racehorses).
“Owner” or “Owners” means the owner or owners of the Horse or Horses and, if there is more than one Owner, in the shares recorded by the Registrar of Racehorses.
“Registrar of Racehorses” means the registrar appointed by Racing Information Services Australia Pty Ltd (ACN 105 994 330) of Level 7, 51 Druitt Street, Sydney in the State of New South Wales.
“Rules of Racing” means the rules from time to time laid down by the principal racing or jockey clubs in the States or at the venues where the Horse is racing.
“Schedule” means the page that precedes these terms and conditions and contains details of the parties and other information.
“Services” means the services provided by the Training Company for the Owner in accordance with this Agreement and in particular clauses 1 and 2.
“Training Company” means the company described in the Schedule which provides the Services and employs the Trainer.
“Trainer” means the trainer described in the Schedule who is employed by the Training Company and nominated by the Owner to train the Owner’s Horse.
1. The Training Company is authorised by the Owner to and the Training Company will, in its sole and absolute discretion, do all things it considers reasonably necessary or expedient to maintain, care for, train and attend to the needs of the Horse including, without limitation, engaging suppliers to provide veterinary, farrier, transport and agistment services and entering into agreements with those suppliers on behalf of and as agent for the Owner. This authority extends not only to day to day matters but also to emergencies involving the Horse. The Training Company and Trainer may, at their discretion, consult with the Owner when making any such decisions.
2. The Training Company may enter the Horse in such race or races as it considers appropriate. While it will use its best endeavours to enter the Horse in such race or races as it considers appropriate, it accepts no responsibility if for any reason it fails to do so.
Training Company agent for Owner
3. The Owner authorises the Training Company to enter into agreements with the suppliers of the services referred to in clause 1 and appoints the Training Company its agent for that purpose.
4. The Owner acknowledges that the Training Company uses the services of Esprit Racing to assist in the provision of the Services to the Owner, such services include but are not limited to rendering accounts, collecting debts and paying creditors. The Owner agrees to comply with all requests from Esprit Racing acting in this capacity but accepts that the contractual relationship for the training of the Owner’s Horse is between the Owner and the Training Company and not between the Owner and Esprit Racing.
5. The Training Company will not insure the Horse and is not obliged to insure against any claim, loss, damage or expense arising from this Agreement.
6. The Owner acknowledges that insurance of the Horse is its sole and exclusive responsibility. If the Owner elects not to effect insurance, it acknowledges that it assumes all risk, liability and expense associated with the handling and training of the Horse.
Charges and Payment
7. The Owner will pay the Training Company the training fees fixed by the Training Company from time to time.
8. The Owner will pay, when requested, all expenses incurred by the Training Company in providing the Services including, without limitation, veterinary, transport, farrier, agistment and race entry and attendance fees. If an expense exceeds $5,000 the Training Company may require payment by the Owner in advance, failing which the Services may not be provided.
9. Subject to clause 8, accounts for the training fees and other expenses will be rendered to the Owner by Esprit Racing on behalf of the Training Company monthly or at such other times as the Training Company determines and must be paid by the Owner within 7 days of the issuing of an invoice, as disclosed on that account. Such accounts will include GST.
10. Unless the Training Company agrees otherwise, the Owner will provide the Training Company with a signed authority to debit amounts owing under this Agreement directly against a nominated bank account or credit card facility held by the Owner. This authority will not be exercised earlier than the due date for payment of the amounts outstanding.
11. If the Owner owns less than 100% of the Horse and requires an individual account, the Training Company reserves the right to charge a $10 administration fee for each account requested and issued.
12. Should an Owner default with any payment (including a dishonoured debit request against the Owner’s nominated bank account or credit card) the Training Company reserves the right to charge and the Owner agrees to pay the Training Company interest on the amount outstanding at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) from the date of default until payment in full plus a default fee of $50.00 every time payment of an account is overdue.
13. Should the Owner default under the terms of this Agreement, the Training Company may retain possession of the Horse and the registration or identification papers for the Horse until such default has been remedied. The Owner agrees that under no circumstances will a Horse or identification or registration papers be released until all monies owing to the Training Company have been paid and all defaults by the Owner remedied.
14. In the event of the Owner’s default: a. the Training Company will continue to maintain and care for the Horse although it may elect to cease providing training services; b. the Training Company may refuse to enter the Horse for any race; and c. while the Horse remains in the care of the Training Company, the Owner will nevertheless continue paying the Training Company the training fees and expenses ordinarily payable under this Agreement it being agreed, without prejudice to any other rights the Training Company may have, to be reasonable compensation for the ongoing care and maintenance of the Horse.
15. If the Owner is in default for more than 90 days or to the extent of $10,000 or more, and fails to remedy that default within 7 days of a notice in writing informing the Owner of the intention to sell the Horse, the Training Company may sell the Horse by auction or private sale on such terms as are reasonable and apply the proceeds to the amount outstanding. Should the proceeds received by the Training Company from the sale of the Horse be less than the amount outstanding, the Owner will pay the Training Company the difference immediately upon receipt of a demand in writing. If the price obtained is greater than the amount outstanding, the Training Company will account to the Owner for any surplus, after deducting amounts that may be owed by the Owner to the Training Company under this Agreement. The Owner hereby irrevocably appoints the Training Company as its attorney with power to execute all documents necessary to effect such a sale.
16. The Owner will pay to the Training Company on demand all costs and expenses incurred by the Training Company and Esprit Racing (including legal costs on an indemnity basis) in attempting to recover any amount owing or to have any default remedied under this Agreement.
17. The Owner may not withhold payment of any monies owing to the Training Company because of any dispute or claim.
18. Under no circumstances will the Owner have any claim for loss or otherwise against the Training Company as a consequence of the Training Company exercising any of its rights in this Agreement.
Change of Ownership
19. If an Owner or the Owner of a share of a Horse wishes to sell or lease all or part of that Owner’s share, that Owner must: a. pay and continue paying all amounts owing by that Owner to the Training Company until clause 19(b) has been met; b. if a share of the Horse only has been sold or leased, procure the new Owner to sign this Agreement; and until these conditions have all been met the Owner’s obligations under this Agreement continue and the new owner’s interest in or ownership of the Horse will not be registered with the racing authorities.
Commission on Sale
20. If the Horse was purchased by the Training Company or the Training Company was the successful bidder buying the Horse on behalf of the Owner and, during, at the end of, or within 12 months of this Agreement ending, the Horse is sold by the Owner for more than the gross purchase price, the Owner agrees to pay the Training Company a commission equivalent to 5% of the gross sale price upon completion of the sale.
21. The Owner agrees that the jockey engaged to ride the Horse will wear the racing silks of Esprit Racing or our trainers, unless 100% of the Owners of the Horse agree to an alternative design of silks for the jockey to wear. If Esprit Racing or our trainer’s silks are worn they will be provided by Esprit Racing on loan for that race. If the Owner’s silks are worn they will be provided by the Owner.
22. In the event of the Horse winning prize money the Owner will: a. pay the Training Company everything a licensed trainer is entitled to under the Rules of Racing including, without limitation, a share of the prize money together with any other payments; and b. if it is a Designated Group Race pay the Training Company if requested an additional 5% of all prize money or starters subsidies.
23. If requested by the Training Company, the Owner will sign a letter, and do everything else required, to direct the relevant racing authority to pay all prize money won by the Horse to the Training Company. The Training Company will credit the prize money to the Owner’s account, apply it against any outstanding amounts owing by the Owner to the Training Company, retain in the Owner’s account an amount equal to one month’s average sum payable to the Training Company by that Owner and then pay any balance to the Owner or into a nominated account or accounts of the Owner.
24. Should the Owner during, at the end of, or within 12 months of this Agreement ending retire the Horse and send it to stud as a stallion, the Owner will, if requested by the Training Company, provide the Training Company with one breeding right for each breeding season in which the Horse participates and one right in each hemisphere if the Horse participates in both the northern and southern hemispheres.
25. While it is the Training Company’s responsibility to utilise the breeding rights the Owner will provide reasonable assistance if requested.
26. The breeding rights do not: a. accrue to subsequent seasons if not used; or b. entitle the Training Company to any additional rights if unsuccessful in producing a live foal.
27. In the event that the Training Company receives a commission in accordance with clause 20 of this Agreement the Training Company’s breeding rights will cease from the date of receipt.
28. The Training Company may assign one or more of its breeding rights as it sees fit provided that before assigning all of its breeding rights it must inform the Owner and give the Owner the opportunity to match the offer made to the Training Company for those rights.
29. In the event that the Owner sells the Horse while the Training Company still has breeding rights the Owner will pay the Training Company as compensation an amount equal to 2% of the gross sale price received by the Owner within 30 days of Owner receiving that price.
Promotion and Merchandising
30. The Owner irrevocably grants a non-exclusive licence to Esprit Racing at no cost to: a. use the name, image and reputation of the Horse to promote Esprit Racing, the Training Company and Trainer; and b. use the name, image and reputation of the Horse on products or services for merchandising purposes.
Exclusion from Liability
31. The Owner acknowledges that owning and racing horses is a risky activity that may result in injury to the Horse and therefore agrees that under no circumstances will the Training Company be liable in negligence or otherwise for any injury, loss or damage arising in any way from the provision of the Services by the Training Company or that of its employees, agents, suppliers or otherwise and, in particular, the Training Company will not be liable for any indirect or consequential loss.
Representations and Warranties
32. The Owner acknowledges that the only warranties or representations upon which the Owner has relied in entering into this Agreement are those contained in this Agreement.
33. To the extent permitted by law, all conditions and warranties (whether as to quality, fitness or otherwise) expressed or implied by statute, common law, equity, trade, custom, the racing industry or otherwise are expressly excluded.
34. The liability of the Training Company for breach of any warranty or express or implied condition of the Agreement, to the extent permitted by law, will be limited, at the option of the Training Company to supplying the Services again or paying the cost of having the Services provided again.
35. This Agreement will be terminated: a. by notice in writing to the Training Company from the Owner or, if multiple Owners from more than 50% of the Owners; b. by notice in writing from the Training Company to the Owner or Owners; or c. upon the retirement, death or serious injury of the Horse.
36. If the Agreement is terminated: a. the Owner must pay (and continue to pay) all amounts owed to the Training Company until the time the Horse leaves the control of the Training Company; b. should the Training Company or Esprit Racing not be able to calculate the total cost of training the Horse up to the time it leaves the control of the Training Company, the Training Company or Esprit Racing will estimate the likely charges for the period until the Horse is handed over and the Owner will pay that amount before the Horse is released. The correct amount owing will be calculated as soon as possible, a final account will be submitted to the Owner and any further payment either to or by the Training Company will be made within 7 days of delivery of that notice; and c. the Owner acknowledges that the Horse will only be released by the Training Company if all amounts owed by all Owners are paid in full.
37. Any notice given pursuant to this Agreement must be in writing and may be given by pre-paid post addressed to the other party at the address specified in this Agreement or as subsequently notified in writing, or by hand delivery or facsimile transmission to the same address and any such notice will be deemed to have been received: a. if served by post three days after being posted; b. when delivered by hand; or c. if sent by facsimile transmission when the transmitting machine produces a written report that the notice has been effectively sent to the other party. Provided that, if the notice is deemed under clause 37(a) or (c) to have been received on a Saturday, Sunday or a Melbourne bank holiday, it will be deemed to have been received on the next business day.
38. Any failure by the Training Company to insist upon observance by the Owner of any term of this Agreement will not be deemed a waiver of any subsequent breach.
39. If any terms of this Agreement are held to be invalid, void, unenforceable or illegal for any reason, this Agreement will otherwise remain in full force and effect apart from such provision which will be deemed to be deleted or modified to overcome that objection.
40. Variations of the Agreement will be effective only if agreed to by the Training Company in writing.
41. The Agreement will be governed by and construed in accordance with the laws of the State of Victoria and Australia and the parties submit to the jurisdiction of the Victorian and Australian courts.