Auction terms and conditions ONLINE Excellent Dressage Sales 2020

English translation is made for information only. Dutch text is legally binding.

 

GENERAL

1.These Auction terms and conditions (hereafter: “Auction Terms and Conditions”) apply to all legal relationships between the private limited liability company Excellent Dressage Sales B.V. (hereafter: “EDS”) and the parties participating in the by EDS organised online auction at www.online.excellentdressagesales.com (“auction stie”) which will start on 14 April 2020 and end on 18 April 2020 (“Auction”). Those who bid on (a) horse(s) during the Auction (hereafter: “Bidder”/”Buyer”) is deemed to have accepted the applicability of these Auction Terms and Conditions. The applicability of general terms and conditions other than these Auction Terms and Conditions is expressly excluded.

2.EDS organises and facilitates the Auction and auctions the horses as commissioned by a vendor (“Vendor”).

3.Buyer is the party that makes the bid during the Auction that is excepted by EDS on instruction of the Vendor as the highest bid and to which the Vendor’s horse offered for auction is allotted. A Purchase Agreement (“Purchase Agreement”) is concluded between the Vendor and Buyer at the moment EDS accepts a bid made by the Bidder/Buyer as the highest bid (“Exit Amount”) and the auction horse is allotted to that Bidder/Buyer. Allotment takes place at the moment the fully completed Purchase Agreement Declaration is signed by the Bidder/Buyer immediately following the auction.

4.All clauses in these Auction Terms and Conditions are also stipulated for all persons who work or have worked for, on behalf of and/or in the name of EDS. These persons may directly invoke the provisions in these Auction Terms and Conditions as if themselves were EDS.

5.All amounts stated in the Auction Terms and Conditions exclude VAT, unless explicitly stated otherwise.

 

AUCTION AND RIGHT OF WITHDRAWAL

6.The Auction takes place under supervision of an auctioneer appointed by EDS and a civil-law notary. EDS determines the order and the sequence of the auction. EDS has the right to refuse anyone access to and/or participation in the auction, without being required to state reasons, or to attach (additional) conditions to participation in the Auction.

7.To take part in the auction as a bidder registration is mandatory and is bound to accept, without any reservations, the terms and conditions and the procedures implemented by EDS during the auction. EDS reserves the right to refuse and/or unilaterally end a registration for reasons of its own. Bidder is obliged to register digitally on the auction site. Bidder will receive a strictly personal username and password which gives the bidder access to the bidding system. Bidder is liable for all actions that take place during the auction and the results that arise from these actions using the bidder’s username and password. Bidding is done digitally/electronically. The highest bid is published per horse on the auction site.

8.The auction will close on the previously indicated date and time. The runtime of the auction is published on the auction’s website. In case a bid is submitted five minutes before the published closure the opening time will be extended with five minutes. Definite closure will take place five minutes after the last bid.

  1. Bidder accepts the exceptional circumstances that may occur during an online auction, including technical imperfections wherefor a bid can not be made in time.

  2.  A Bidder with the second highest bid is compelled to fulfil his/her bid during 14 days after the online auction’s closure in case the highest bid is declared invalid or not fulfilled.

11.The horses offered for Auction will be put of for auction/sold outright, without proceedings or recompense, in the state in which they are allotted, without any liability on the part of EDS in connection with the value, condition and/or quality of the auctioned horses. The risk of loss of and/or damage to and/or damage caused by the auctioned/purchased horse rests with the Bidder/Buyer from the moment the Purchase Agreement is concluded.

12.Bidder/Buyer bids at his/her own risk and account and is committed to his/her bid until a higher bid has been accepted.

13.EDS cannot guarantee that the Vendor can transfer the title of ownership of the auctioned horse to the Bidder/Buyer that is free and unencumbered, and EDS is not liable for any losses or damages that are related to this.

14.As long as EDS has not received payment in full from Bidder/Buyer, also under any other Purchase Agreements, the Vendor remains owner of the horse. Until such time EDS has a right of retention over the horse. Exclusively after receiving of written permission of EDS, the Vendor is authorised to deliver the auctioned horse to Buyer.

  1. Purchaser can dissolve a purchase agreement for the purchase of a horse at the auction (internet purchase) during a period of 14 days after delivery without stating reasons based on the statutory right of withdrawal of article 6:230o of the Civil Code. In case Purchaser wants to use the right of withdrawal he/she is bound to inform EDS and the Seller by a registered letter. After dissolution the Purchaser is bound to return the horse to the Seller at the Purchaser’s expense and risk. Purchaser will carefully take care of the horse during the reflection period and return and, if applicable, according to the instructions of the Seller.

 

INFORMATION

16.EDS devises the catalogue as carefully as possible. The information in the auction catalogue is intended to provide an impression of the quality of the horses offered for Auction, without EDS trying to achieve completeness and without conferring any rights.

17.The horses offered for Auction have been clinically examined. The final clinical examination takes place on the day prior to the day of the Auction. A veterinary report is composed of the clinical examination in accordance with KNMvD-standards, which can be inspected on the day of the Auction or as soon as available.

18.The horses for Auction have been examined radiographically. This includes a radiographic examination of the back and neck and of the radius in both front legs, for osteochondritis in the knee joints in both hind legs, for osteochondritis in the hock in both hind legs, for osteochondritis in the fetlock in all legs and for arthritis in the fetlock joint in both front legs, of the sesamoid bones in both front legs, for blood-spavin in both hind legs and secondary findings.  The quality of the X-ray images meets the criteria set in the most recent regulation on veterinary examinations of horses provided by the KNMvD. The X-ray images have been produced within a period of three months prior to the Auction. The X-ray images and a copy of the veterinary report written on the basis of these images, can be inspected on request up to the start of the Auction.

19.The content of the aforementioned veterinary reports is binding for EDS, for Vendor and for Bidder/Buyer.

20.Prior to the Auction and/or on the day of the Auction the horses being offered for auction can be inspected at a time and location to be specified by EDS, where possible and allowed according to the governmental measurements in connection with the Corona virus.

 

EXIT AMOUNT, BUYER’S PREMIUM, PURCHASE PRICE, BUYER’S PAYMENT OBLIGATIONS

21.Buyer will pay the Purchase Price to EDS in euros within 24 hours after formation of the purchase agreement via bank transfer to the account number in the name of EDS, with no discount or setoff being applied. The Purchase Price will be calculated as follows: the Exit Amount is increased with an amount equal to 8% of the Exit Amount (“Buyer’s Premium”), plus the applicable VAT rate. The VAT rate can depend on the capacity/nationality of the Vendor, Buyer and on applicable regulations.

22.In the event of a failure of timely payment of the Purchase Price, Bidder/Buyer will be in default and EDS will have the right to privately sell the horse forthwith; whereby the bid of the original Bidder/Buyer is no longer applicable. Bidder/Buyer is never entitled to any additional profit from this private sale and continues to be obligated to pay the difference in case of less profit to EDS. EDS will be authorised, with no notice of default on behalf of nor consent from the Vendor being required, to consider the Purchase Agreement to have been dissolved, without Bidder/Buyer being entitled to any (damage) compensation. If Buyer is in default, EDS will have the right of retention of the horse; Bidder/Buyer will owe EDS administration fees equal to 6% of the Exit Amount and Bidder/Buyer will owe EDS any (extra)judicial costs involved in collecting EDS’ claims against Bidder/Buyer, subject to a minimum amount of €1,000. Buyer has no right to any setoff.

 

DELIVERY, TRANSFER OF OWNERSHIP AND COLLECTING

23.EDS will inform the Seller when Purchaser has complied with all obligations under the Online Auction Terms and Conditions Excellent Dressage Sales 2020. From that moment the Seller is bound to deliver the horse (inclusive the horse’s passport) to the Purchaser and the Purchaser is bound to pick up the horse within 7 days after that moment from the address in the Netherlands given by the Seller. In case the Seller and/or Purchaser can not comply with this obligation due to national and/or international governmental measurements concerning the Corona virus, the Seller will stable, train and take care of the horse at the full risk of the Purchaser free if charge until and including 30 April 2020 and for  €16 per day after that date.  The deliver and collecting obligation and the connected period will be postponed to a moment when governmental measurements no longer hinder the procedure.

 

EXCLUSION AND LIMITATION OF EDS’S LIABILITY

  1. EDS is not liable for any loss caused by incorrect and/or incomplete information being provided, regardless of the nature and score of this loss and of the information and regardless of the source of this information.
  2. EDS is not liable for loss arising prior to, during and/or after the Auction caused by or to persons and/or to property and/or to horses.
  3. EDS is not liable for damage, either direct or indirect, and regardless of the nature and scope of the damage, resulting from a failure to meet an obligation by a third party or third parties.
  4. EDS is not liable for shortcoming in the fulfilment of any obligation resulting from strikes, shortages, riots, fire, flood, storm, explosions, natural disasters, war, epidemics and/or pandemics, government interventions, working conditions, earthquakes, material shortage or any other circumstance EDS could reasonably exercise any control.
  5. Bidder/Buyer is liable for any damage caused by Bidder/Buyer and indemnifies EDS against any third-party claim or claims, including, but not limited to, Vendors and/or Bidders/Buyers, related to such damage, regardless of the nature and scope of the damage.
  6. Any exclusion of liability on the part of EDS do not apply if EDS has acted with intent or is guilty of gross negligence.
  7. Any liability on the part of EDS will at all times be limited to the maximum amount of €10,000. In any case, the right to damages will lapse 12 months after the incident from which the loss arises and in respect of which EDS is liable, without prejudice to the provisions in Article 6:89 of the Dutch Civil Code (BW).

TURNOVER TAX

31.For the purpose of turnover tax EDS is considered as an entrepreneur. Changes in respect of the applicable VAT-rate can give rise to a proportionate adjustment to the VAT-rates to be applied.

32.If, when an auctioned horse goes to another EU member state at the request of the Bidder/Buyer the VAT on the invoice is itemised as zero, the Bidder/Buyer undertakes to fulfil the conditions laid down with respect to this with a view to realising a legally valid intra-community transaction.

33.If it emerges (afterwards) that the application of the zero VAT rate is not possible due to any circumstances, the Bidder/Buyer will at that time be liable to pay an amount equal to the amount that would be payable if the auctioned horse in question were to be delivered within the Netherlands. However, at the request of EDS the Bidder/Buyer is required to pay the above amount to EDS forthwith. In that case repayment of this amount will only take place if the Bidder/Buyer has met the conditions set out in Clause 28 to the satisfaction of EDS. The Bidder/Buyer is liable for and indemnifies EDS against, at the very least, all loss arising from failure to meet the conditions set out in Clause 28. In addition, the Bidder/Buyer is also liable for all (extra) judicial costs incurred by EDS, subject to a minimum amount of € 1,000 including VAT.

34.Prior to the auction, it is announced per horse under which VAT-system the horse in question will be auctioned.

 

DISPUTES AND APPLICABLE LAW

35.If a dispute should arise during the Auction about the procedure during the Auction, the auctioneer is authorised to pronounce a binding opinion on this dispute and then to continue the increasing auction. If the auctioneer requests the civil-law notary to pronounce an opinion on the procedure during the auction, the civil-law notary will decide for all parties and this decision will be binding and irrevocable.

36.The legal relationship between EDS and Vendor, between EDS and Buyer and between Vendor and Buyer is governed exclusively by Dutch law, with full exclusion of the Vienna Sales Convention (CISG). Disputes, other than those subject to the opinion of the auctioneer or the civil-law notary, will be heard in accordance with the Arbitration Rules laid down by the Netherlands Arbitration Institute (NAI) by one arbiter to be appointed in accordance with the list procedure. The arbitral proceedings shall take place in Utrecht. The arbitral proceedings shall be conducted in the Dutch language. If Buyer is consumer, at his/her written request the district court Midden-Nederland, location Utrecht, is competent. If Vendor and/or EDS want to lay a matter before court and Buyer is consumer, Vendor/EDS will afford Buyer for a period of one month with the opportunity to make known his/her choice for NAI-arbitration or district court Midden-Nederland, location Utrecht. If cases involve an urgent interest (summary proceedings), Vendor/EDS may shorten this period to five working days.

37.The Dutch text of these Auction Terms and Conditions is binding.

 

 

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