Trainer Agreement

THIS AGREEMENT will operate from the Effective Date.

BETWEEN:The Proprietor 

AND: The Owner

RECITALS

A.The Proprietor is a provider of horse training and ancillary services.

B.The Owner is the owner or lessee of the Horse.

C.The parties have agreed that the Proprietor will accept delivery of the Horse and provide the services in accordance with this Agreement.

BY THIS AGREEMENT it is agreed as follows:

1.APPOINTMENT

1.1The Proprietor: (a)will take possession and day-to-day control of the Horse on behalf of the Owner for the purpose of providing the services; and (b)will, exercising reasonable care, skill and diligence at all times during the Term, provide the services in a proper and efficient manner in accordance with the normal standards applied, provided and maintained in connection with the training and racing of thoroughbred racehorses.

1.2Clause 1.1 notwithstanding, but subject to clause 8, all risk in relation

to the physical well-being of the Horse will remain with the Owner.

1.3 (1) This Agreement: (a)is subject to the Rules of Racing, including the TOR Rules; (b)excludes and replaces the terms of the TOR Standard Training Agreement, as permitted by TOR Rule 1; and (c)is irrevocable and legally binding upon the parties for the Term.

(2)Any right or obligation accruing under this Agreement during the Term will not be affected or prejudiced by it ending. The Proprietor is relieved of any further obligation from the End Date.

1.4 ASSOCIATED ENTITIES

(1) 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 in relation to the provision of those additional services, then the Owner agrees that this Agreement, except for clauses 3 and 6, will apply mut at is mut and is to the agreement between the Owner and the Associated Entity for the provision of those additional services.

(2) Without limiting paragraph (1), the Owner acknowledges and agrees that in entering into paragraph (1), the Proprietor does so for one’s own benefit, and as agent of and trustee for each Associated Entity of the Proprietor who is or may be entitled to the benefit of the Owner’s covenants in paragraph (1) (with each Associated Entity entitled to enforce those covenants against the Owner in its own name and style).

1.5 MULTIPLE PARTY OWNERSHIP ARRANGEMENTS

(1)If multiple parties comprise the ownership of the Horse:

(a)this Agreement binds them both individually and collectively; and (b)either the first-named registered Owner or such other person nominated by the Owners will be the manager and deemed duly authorized agent of all of them for all dealings with the Proprietor in relation to the Horse and this Agreement.

(2)CO-OWNERS

(a)Unless otherwise agreed with the Proprietor, if the multiple parties comprising the ownership arrangement are co-owners, they are severally liable for the proper performance of the Owner’s obligations under this Agreement. Consequently, clauses 10, 12, 16 and 17 of this Agreement will apply to each co-owner’s interest in the Horse, except for: (i)clauses 10.2(a) and 16.1(a), which will apply to the whole Horse; and (ii)clause 16.3, which will apply to the whole Horse if a co-owner holding 50% or more of the Horse is in breach of one’s obligations under this Agreement.

(b)Each co-owner expressly and irrevocably authorises the Proprietor to notify the manager and the other co-owners if any co-owner breaches a material obligation, including any payment obligation, under this Agreement.

2.DELIVERY 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 on the day and at the time specified by the Proprietor; 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 (without limitation):

(a)training and racing the Horse to best advantage;

(b)caring for and maintaining the Horse, including:

(i)providing stabling and ancillary facilities, equipment and gear, feed and supplements; and

(ii)providing or as the agent of the Owner procuring agistment and pre-training;

(c)as the agent of the Owner, procuring the services of such Third Party Service Providers as the Proprietor may consider necessary to provide services in relation to the Horse, including

chiropractic care, dentistry, farriery, veterinary care and transportation;

(d)communicating verbally (either in person or by telephone or voice message), or in writing (either by post,email, text message)on a regular basis with the Owner or the manager in relation to the care, training and racing of the Horse, including:

(i)its general well-being and progress;

(ii)its proposed racing program and race performances (pre and post-race reports), including when it is

nominated and accepted for any trial or race;

(iii)when it changes location or is relocated from the Property for any reason, including (without limitation)

either to race interstate or overseas, for agistment or pre-training, to a veterinary clinic or sales complex, or

because this Agreement has ended; and

(iv)if it dies, or suffers a material illness or injury;

(e)determining in consultation with the Owner or the manager the racing program of the Horse and also the jockey who

will ride it in each of its races; and

(f)as the representative of the Owner or the manager, entering (including nominating and accepting) the Horse for or

scratching it from any race or trial, at the Proprietor’s discretion, unless otherwise specifically agreed with the Owner

or the manager.

3.2The Proprietor must obtain the Owner’s or the manager’s approval before authorizing that the Horse:

(a)be relocated to race in another jurisdiction either within

Australia or overseas;

(b)be entered for any race for which the total of nomination and

acceptance fees is likely to be more than $2,000; or (c)undergo surgery or receive any extraordinary (other than

routine) veterinary or other treatment, the cost of which is likely to be more than $2,000.

3.3If the Horse is an Entire, the Proprietor must obtain the Owner’s or the manager’s approval before authorizing that it be gelded.

3.4Except in circumstances that do not afford the Proprietor the opportunity to obtain veterinary advice and the Owner’s or the manager’s approval, the Proprietor must not authorize that the Horse be euthanized as a consequence of accident, illness, injury or other cause, unless such action is recommended on humane grounds and

certified by a qualified equine veterinarian retained at the discretion of the Proprietor or Principal Racing Authority.

3.5The manager must obtain the approval of the parties comprising the ownership arrangement (in accordance with the terms of that arrangement) before authorizing the Proprietor to take the actions contemplated by clauses 3.2, 3.3 and 3.4.

3.6 If the Proprietor, at any time, arranges for the Horse:

(a)to be relocated to another property which is not operated by the Proprietor; or

(b)to be offered for sale, sold or otherwise disposed of on behalf of the Owner; such arrangement will be made by the Proprietor as the Owner’s agent and the Proprietor will no longer be responsible to the Owner either for the care and well – being of the Horse, or for fees and charges incurred.

4.FEES AND EXPENSES

4.1FEES NOTICE

(1)The Proprietor’s current basic fees and charges, together with the mandatory allocation of Prize money prescribed by the Rules of Racing, are set out in the Fees Notice.

(2)The Proprietor must, within 7 days of being appointed as the trainer of the Horse, provide to the Owner or the manager a copy of the Fees Notice. The Owner or the manager will then have 14 days to resolve with the Proprietor any query or objection in relation to the Proprietor’s fees and charges. In any event, the Owner or the manager must resolve such query or objection prior to delivering the Horse to the Property.

(3)The Proprietor may impose additional charges for additional services. Fees and charges of Third Party Service Providers are in addition to the Proprietor’s fees and charges.

4.2The Proprietor may vary one’s fees and charges, including additional remuneration and gratuities, but must provide an amended Fees Notice to the Owner or the manager prior to implementing the increase.

4.3LIABILITY FOR PAYMENT The Owner must pay or reimburse the Proprietor and any Third Party Service Provider in accordance with such party’s normal trading terms:

(a)all fees and expenses of caring for, training and racing the Horse, including (without limitation) agistment, pre-training and training fees, race entry fees (nomination, entry and acceptance), chiropractic, dentistry, farriery and veterinary fees, and transportation costs; and

(b)the mandatory allocation of actual or advertised Prize money to the Proprietor, the jockey and other named parties,

prescribed by the Rules of Racing or race entry conditions and distributed directly to each of them via the Principal Racing Authority’s stakes payment system or other means.

4.4The Owner must pay or reimburse the Proprietor upon demand the amount of any invoice rendered directly to the Proprietor by a Third Party Service Provider.

4.5The Proprietor may require the Owner to advance to the Proprietor moneys on account of the estimated cost of specified race entry fees, surgery or extraordinary veterinary treatments, and will not be obliged to incur the expense until such moneys are received.

4.6ADDITIONAL REMUNERATION AND GRATUITIES The Owner must also pay to or bestow upon the Proprietor the additional remuneration and gratuities set out in the Fees Notice.

4.7INVOICING The Proprietor and any Third Party Service Provider will invoice fees and charges, including any additional remuneration and gratuities:

(a)to the Owner; or

(b)if the ownership arrangement is comprised of multiple parties, as agreed with the manager, either:

(i)to the Owners collectively via the manager; or

(ii)to each party directly one’s proportion of such fees and charges. Regardless of the invoicing arrangements, liability for all such fees and charges remains as set out in clauses 1.5.

4.8METHOD OF PAYMENT The Proprietor’s preferred method of payment is by EFT, or by Mastercard or Visa credit card. In the case of multiple Owners and proportionate direct invoicing, the Proprietor may charge an additional administration fee.

5.RULES OF RACING

5.1The Proprietor, the Owner and the manager must at all times: (a)comply with the Rules of Racing, including the TOR Rules; and

(b)be eligible to be an Owner under the Rules of Racing.

5.2If there is any inconsistency between a provision of this Agreement and the Rules of Racing, including the TOR Rules, the latter will prevail to the extent of the inconsistency.

5.3The Owner expressly and irrevocably authorizes the Proprietor to obtain from Racing Australia or the Principal Racing Authority full details of the Owner, as recorded with such body, including (without limitation) name, residential and email addresses, telephone and facsimile numbers.

5.4If the Horse is leased, the authorization in clause 5.3 will extend to and include full details of the lessor.

6.TRAINING FEES DISPUTES RESOLUTION PROCEDURES

The parties acknowledge that the Training Fees Disputes Resolution Procedures apply to this Agreement. Those procedures are summarized as follows:

(a)Any invoice rendered by the Proprietor prior to the 15 th of the month is payable by the end of that month, or if rendered afte rthe 15th of the month is payable by the end of the following month. If the Owner fails to pay, but does not within that period dispute the amount of such invoice by giving a Dispute Notice to the Proprietor (and a copy to Racing Australia), the Presumption of a Training Debt arises and the Owner will be deemed a defaulter for non-payment of training fees. If a Dispute Notice is given, the Presumption of a Training Debt does not arise.

(b)Paragraph (a) notwithstanding, the Owner or the manager may within 6 months after receiving an invoice rendered by the Proprietor dispute the amount of such invoice by giving a Dispute Notice.

(c)Following the giving of a Dispute Notice, either party may within 14 days elect to have the dispute determined by

the Training Disputes Tribunal by giving to Racing Australia (and a copy to the other of them) a Notice of Election of Hearing and the applicable filing fee. A Dispute Notice will lapse if a Notice of Election of Hearing is not given.

(d)The Owner or the manager may attend and be heard at the hearing of the dispute before the Training Disputes Tribunal.

(e)The parties must strictly comply with any determination by the Training Disputes Tribunal. If either party does not comply with such determination, the other of them:

(i)may exercise one’s other contractual and legal remedies against that party; and

(ii)the relevant Principal Racing Authority may take whatever disciplinary action it considers appropriate

against that party.

7.VISITATION

The Owner or the manager may, by appointment with the Proprietor, attend at the Property for the purpose of inspecting the Horse. Visitation will be entirely at the Owner’s or manager’s own risk, assumed voluntarily, and the Proprietor will not be liable for the materialisation of an Inherent Risk associated with such visitation, including (without limitation) accident or injury, howsoever arising, involving or sustained by the Owner or the manager, or any other person who may accompany the Owner or the manager when visiting the Property.

8.PROPRIETOR’S RIGHT OF INDEMNITY

The Owner must indemnify the Proprietor against all expenses and liabilities incurred in the course of properly complying with this Agreement.

9.LIMITATIONS TO OWNER’S RIGHT OF INDEMNITY

9.1Neit her 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:

(a)if it dies, or value is diminished as a consequence of the materialization of an Inherent Risk, including (without

limitation) accident, illness, infertility or sub-fertility, injury, or natural cause; or

(b)if it fails to compete in or win any races or Prize money.

9.2Except for any right of indemnity specifically preserved by this Agreement, the Owner expressly surrenders, so far as the law permits, any right which the Owner may have against the Proprietor or any Third Party Service Provider to claim damages for harm suffered by the loss or diminution in value of the Horse, howsoever arising, including (without limitation) liability in negligence and any right of the Owner to claim damages for economic loss or loss of opportunity to earn future income.

9.3Any right of indemnity either specifically preserved or not capable of surrender will be limited in damages to the initial amount paid by the Owner to acquire the Horse.

9.4Certain legislation, including the Competition and Consumer Act 2010 (Cth), may impose consumer guarantees or imply warranties or conditions or impose obligations upon the Proprietor which cannot be excluded restricted or modified, or cannot be excluded restricted or modified except to a limited extent. This Agreement must be read

subject to these statutory provisions. If these statutory provisions apply, to the extent to which the Proprietor may limit one’s liability, such liability is limited to:

(a)in the case of goods, at the Proprietor’s option:

(i)the replacement of the goods or the supply of equivalent goods;

(ii)the repair of the goods;

(iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv)the payment of the cost of having the goods repaired;

and

(b)in the case of services, at the Proprietor’s option:

(i)the supplying of the services again; or

(ii)the payment of the cost of having the services supplied again.

10.LIEN AND CHARGE

10.1The Owner grants to the Proprietor a Lien over the Horse and a Charge over the Horse, Prize money and proceeds, as security for the proper performance of the Owner’s obligations under this

Agreement, including (without limitation):

(a)to pay all fees and charges payable under this Agreement, including any additional remuneration and gratuities; and

(b)not to either transfer, sell or otherwise dispose of, or create any Encumbrance attaching to, the Horse, other than in accordance with this Agreement.

10.2This Lien or Charge:

(a)entitles the Proprietor:

(i)to possession of the Horse (including the Horse ID card or any replacement card) until such time as all amounts

due and payable by the Owner under this Agreement are paid; and

(ii)to retake possession of the Horse (including the Horse ID card or any replacement card) where the Proprietor

does not have such possession at the time when the Owner’s breach of this Agreement occurs; and

(b)includes the right of the Proprietor:

(i)to give a direction for the payment of Prize money and proceeds; and

(ii)to sell the Horse or appoint a receiver to do so; when the Owner’s breach of this Agreement occurs.

10.3The rights conferred by this clause 10 are in addition to and not in substitution of any rights of the Proprietor at common law or under any statute.

11.INSURANCE

Unless otherwise agreed in writing by the Proprietor, the Owner is responsible for arranging one’s own insurance cover (including the renewal of any existing cover) for mortality and other insurable risks in relation to the Horse for the Term.

12.OWNER’S SALE OR ENCUMBRANCE OF HORSE

If the Owner elects either to transfer, sell or otherwise dispose of, or to create any Encumbrance attaching to the Horse, while any fees and charges are outstanding and payable to the Proprietor or any Third Party Service Provider under this Agreement, the Owner must prior to doing so either: (a)pay all such outstanding fees and charges to the Proprietor or Third Party Service Provider; or (b)obtain the Proprietor’s approval either to the proposed sale or other disposition, or to the creating of the Encumbrance. The Proprietor may give approval (with or without conditions), or withhold approval without providing a reason. If the Proprietor does approve, the Owner must comply with any conditions of such approval, and otherwise obligate the proposed purchaser, acquirer, or grantee of any Encumbrance to novate this Agreement. In any event, the Owner will remain liable to the Proprietor or Third Party Service Provider for any fees and charges not paid to the Proprietor or Third Party Service Provider by such purchaser, acquirer, or grantee.

13.ACKNOWLEDGEMENTS UNDERTAKINGS AND WARRANTIES

13.1The Proprietor acknowledges that, other than as set out in this Agreement, the Owner has neither made any representation nor provided any warranty to the Proprietor in relation to the Horse.

13.2The Owner acknowledges entering into this Agreement at one’s own risk and that, other than as set out in this document, the Proprietor has neither made any representation, nor provided any warranty:

(a)in relation to the services to be provided or procured by the Proprietor; or

(b)that the Horse:

(i)will win any races or Prize money;

(ii)will have any residual value as a stallion or broodmare;

or

(iii)if an Entire, will not require gelding as a consequence of physical or behavioral considerations in an effort to

enhance racing performance.

13.3The Owner undertakes: (a)not to appoint or grant possession of the Horse to a new trainer while any fees and charges are outstanding and payable to the Proprietor or any Third Party Service Provider under this

Agreement, unless the Owner has lodged a Dispute Notice and deposited the full amount of the outstanding fees and charges into the Training Disputes Trust Account; and

(b)not to assign one’s rights or obligations under this Agreement to any third party without first obtaining the Proprietor’s

approval, which will not be unreasonably withheld or delayed. It will not be unreasonable for the Proprietor to withhold

approval if the Owner is in breach of any payment obligation under this Agreement.

13.4The Owner warrants that the Owner:

(a)is either:

(i)the holder of the legal and beneficial title to the Horse, free of any Encumbrance, or if subject to an Encumbrance, duly authorized by the grantee to enter into this Agreement; or

(ii)the lessee of the Horse, duly authorized by the legal owner and lessor to enter into this Agreement; and

(b)is not aware of any behavioral, physical or health problem with the Horse which, if known to the Proprietor, would cause the Proprietor to refuse to take delivery of the Horse at the Property.