Stal Harrie Theeuwes N.V. (hereafter: ‘SHT’) will organize a foal auction at manege De
Kraal (Schegel 48, 2240) in Zandhoven (date to be found at http://foalauction111.com/en/home;
hereafter: ‘the auction’). The auction will be supervised by an auctioneer.
These auction conditions apply to the legal relationship between SHT and the vendor and SHT and the bidder/purchaser. Both the vendor and the bidder/purchaser take part in the auction entirely at their own cost and risk. A bid can be made physically (by means of "hand-raising"), by telephone and/or online (for the latter reference is made to sub 46). SHT is not responsible for any obligations to the vendor and/or bidder/purchaser other than those outlined in these conditions.
A sales agreement is exclusively entered into between the vendor and the bidder/purchaser. The bidder/purchaser is still obliged to sign the written sales agreement as meant in item 10. SHT is not bound by sales agreement(s) between the vendor and the bidder/purchaser and all what is arising out these sales agreements (e.g. possible additional arrangements regarding delivery and transfer of risk. Under no circumstances can SHT be regarded as a vendor or bidder/purchaser.
All stipulations in these conditions of auction are also made for the benefit of all persons who have been or are employed by or have been or who are employed on behalf of SHT. These legal entities or natural persons can invoke the stipulations of these auction conditions, as if they were SHT.
Participation in the auction will be considered as acceptance of these conditions of auction, with the exclusion of any conditions applied by the participant him/herself.
the auction and selection of the foal
SHT (as well as a selection committee appointed by SHT) will examine and select the foals that qualify for participation in the auction during a selection-day; reference is made to item 11 and further. Decisions taken by SHT in that respect are binding. SHT is entitled to seek advice from third parties, but has the right at any time to refuse a foal or foals, without having to state reasons, on the basis of (physical) deficiency, or any other grounds determined by the SHT even when a foal or foals has/have already been selected for the auction. SHT will never be liable, on whatever basis, to compensate the costs accrued by the vendor.
The selected foals will be sold outright, without proceedings or recompense, in the condition they have at the time of sale. The foals entered for the auction will be sold to the highest bidder. If no opening bid is made for this amount, the auctioneer is entitled to lower the opening bid. The auctioneer is entitled to change the order of the foals to be sold or, without stating reasons, refuse a person as bidder/purchaser.
Bidders/purchasers are expected to have full legal capacity and to be in full possession of their mental faculties. Each bidder/purchaser is considered to have made the bid for him/herself and shall be bound by his/her bid until a higher bid is definitely accepted. Each bidder/purchaser is fully liable for any failure in the compliance with his/her obligations. A vendor who appears to have bought back his/her own foal is also considered a bidder/purchaser and for the vendor as here meant all the provisions (including all (payment) obligations) in these auction conditions concerning bidders/purchasers, shall also apply. Reference is made to item 25 in respect of the indebted amounts by vendor.
After the auction the bidder / purchaser and the seller shall agree on how and when the auctioned foal will be delivered; the aforementioned and the consequence of the (non or incorrect) delivery are explicitly the responsibility of the seller and the bidder / purchaser and not SHT. Upon the physical delivery of the foal to the bidder / purchaser, the risk in respect of the foal shall be transferred from the vendor to the bidder / purchaser with immediate effect, unless otherwise agreed in writing between the vendor and the bidder / purchaser. Unless otherwise agreed by the bidder / purchaser and the seller in writing, the principle applies that (i) when the foal must be delivered outside Belgium, the bidder / purchaser will pay for the transport-costs or arranges the transport himself or (ii) when the foal is to be delivered within Belgium, the seller will pay for the transport-costs or arranges the transport himself.
Immediately upon allotment, the bidder/purchaser, upon production of identification, shall sign a written sales agreement (except in case of an online bidder/purchaser for which reference is made to sub 46), the aforementioned whether or not on the basis of a power of attorney from the bidder / purchaser to a third party who will represent him/her during the bidding process and sign the sales agreement on the behalf on the bidder/purchaser. If the sales agreement is not immediately offered for signing, the bidder/purchaser must immediately report this to the SHT administration after the auction has finished.
information
SHT has tried to compose the catalogue with the utmost care. The information about the pedigrees has the aim to give an impression of the quality of the foals, without having the pretence to be complete.
It is the responsibility of the vendor to check the accuracy of the information in the catalogue and to notify SHT in writing before the auction of any mistakes or inadequacies, thereby indicating in as much detail as possible which changes or additions should be made.
13. To participate in the auction, the seller is obliged to participate in the selection-day which will take place a few weeks before the auction and which will be announced in due course. In order to participate in the selection-day, the seller must register himself by means of sending a completed registration form. By sending in this form, the vendor accept these auction conditions in advance. On the basis of the selection, SHT will solely decide which foals will or will not be selected to participate in the auction. The day before the auction, SHT holds a veterinary inspection on the basis whereof SHT can solely decide whether a foal will or will not participate in the auction.
The passport of the studbook of the foal should the seller have available no later than the day of the auction. If this might not be possible, the seller commits itself to deliver this document as soon as possible after the auction to the bidder/purchaser.
The bidders/purchasers are obliged, at the request of SHT, to supply information concerning their financial solvency (reference is made to sub 46 for online bidders / purchasers in which case possibly additional requirements will apply), in which case they must show SHT documentation proving their solvency. By making a request for participation in the auction, bidders/purchasers authorize SHT to obtain information concerning their solvency from third parties.
With the exception of the purchase price, all rates and prices in these auction conditions are exclusive of VAT. VAT will be charged on the purchase price only if the vendor is liable to charge VAT. If that is the case, this will be stated in the catalogue next to the foal. It is also the responsibility of the vendor to include this information in the catalogue, to issue it in a timely and correct manner, and then to check it and to notify SHT in writing of any errors or incompleteness prior to the auction and in the process to specify which amendments or additions should be made.
costs and payment
The vendors and their foal(s) will only be accepted to participate in the auction after having been selected as described in item 13.
Settlement with the bidder / purchaser will be calculated as follows: (i) the allotment price plus (ii) 10% of this allotment price as purchase commission = net price, possibly to be increased by applicable VAT = settlement amount. A bid is considered to have been made on personal title of the bidder/purchaser; by making a bid, a bidder/purchaser commits himself to pay of the settlement amount, unless a higher bid is accepted thereafter. The auctioneer has the right to reject a bid.
In the event that the bidder/purchaser fails to sign a sales agreement immediately upon allotment as described in item 10, SHT has the right to immediately re-auction the foal, in which case the bid of the original bidder/purchaser will no longer be accepted. The original bidder/purchaser is obliged to pay the difference of his/her bid and a possible lower purchase price, as well as the costs of re-auction, to SHT. The bidder/buyer will not have any claims in the event of a higher purchase price upon re-auction.
A bidder/purchaser can only make payments by means of a bank-transfer to SHT’s bank-account.
Payment to any other bank-account than SHT’s does not release bidders/purchasers from their payment obligations towards SHT. The legal ownership of the foal will be transferred as soon as SHT has received payment in full of the purchase price from the bidder/purchaser; until that moment, the vendor remains the owner of the foal.
In the event that SHT has not received payment in full from the bidder/purchaser within 3 days after the auction, the bidder/purchaser will be legally in default. The bidder/purchaser is then, in addition to any other payment obligations, obliged to pay SHT (i) an interest-compensation of 1.5% per month over the total sum owed, to be calculated from the date of the auction until the date of full payment and (ii) – in case the aforementioned amounts have not been transferred to SHT within 1 month after the auction – an additional payment of 12% of the allotment price.
In the event that SHT has not received full payment from the bidder/purchaser within 3 days after the auction, SHT also has the authority, on behalf of the vendor and without his/her permission, to consider the sale as not binding/being null and void. In such cases, the vendor and the bidder/purchaser remain obliged to comply with all their payment obligations to SHT as laid down in these auction conditions, as far as these concern compensation due to SHT.
If the bidder/purchaser or the vendor are in default concerning the compliance with any (payment) obligations towards SHT, all judicial and extra judicial costs accrued by SHT as a result of these circumstances shall be for account of the bidder/purchaser and/or the vendor.
When there is a foal with a known deficiency whereby a veterinary that has been designated by SHT has provided a written report saying that recovery (a cure) is possible, then the bidder/purchaser is obliged to fulfil all conditions specified in item 17 up to and including 23. At the death of or rejection of a foal by the above-mentioned veterinary (concerning the state of health of the foal which is binding) before expiry of the time when delivery to the bidder/purchaser from the vendor should have taken place, the sales agreement will be seen as not binding and the advance will be restituted by SHT.
25. Only if and when all (payment) obligations towards SHT have been complied with by the bidder/purchaser and the circumstances as described in items 31 up to and including 34 have not occurred, shall SHT at the latest 7 days after vendor’s and bidder/purchaser’s notice of the delivery as meant in item 9, complete payment of the sale (as defined hereinafter owing to the vendor. Settlement with the vendor will be calculated as follows: (i) the allotment price minus (ii) 10% of this allotment price as sale commission = net price to be increased by applicable VAT.
In the case where the bidder/purchaser reports to SHT a deficiency or stable vice as in accordance with and as specified in items 31 up to and including item 34, and there is disagreement about such, SHT is nevertheless not bound to paying the vendor, nor bound to the reimbursement to the bidder/purchaser. SHT is in the first instance bound to the meant payment to the vendor or the meant reimbursement to the bidder/purchaser when and as soon as the aforementioned difference, among other things, corresponds with the regulations in items 31 up to and including item 34, are settled to the benefit of the purchaser and/or respectively the bidder/purchaser.
In case the vendor is VAT-liable, he is obligated to make up a VAT-invoice to be addressed to the purchaser.
In the case of a repurchase by the seller, he/she owes SHT a fixed sale commission of EUR 250,-- + VAT for an allotment price up to EUR 5.000,--. In case of a repurchase for an allotment price between EUR 5.000,-- up to EUR 7.000,--, the seller owes SHT a sale commission of 10% + VAT of the allotment price. In case of a repurchase for an allotment price between EUR 7.000,-- up to EUR 9.500,--, the seller owes SHT a sale commission of 15% + VAT of the allotment price. In case of a repurchase for an allotment price which exceeds EUR 9.500,--, the seller owes SHT a sale commission of 20% + VAT of the allotment price.
absence of foals at the auction
A foal that has been selected must participate in the auction.
If a foal, in the opinion of the vendor, is unable to participate in the auction because of health reasons, the vendor should notify SHT thereof in writing, in good time, giving an as detailed as possible description of the impediment to SHT, after which a veterinarian appointed by SHT will assess the nature of the impediment. The conclusion of the veterinarian is binding. If the vendor fails to offer any and/or sufficient opportunity to the aforementioned veterinarian, whose judgment will be binding, to have the foal examined (in time), or, if the foal passed examination by the aforementioned veterinarian and nevertheless fails to take part in the auction, the vendor shall owe SHT an amount of EUR 5.000,-- augmented by a 1.5% interest per month over the total owed sum, to be calculated from the date of auction until the date of full settlement.
If a foal, after examination by the aforementioned veterinarian, does not participate in the auction, the vendor shall in any case compensate the SHT for the (veterinary) costs incurred by SHT in that connection, with a minimum sum of EUR 500,--.
allotment, removal and delivery of foals
Vendors must deliver their foals and mare to the auction grounds in good condition for the auction at the time as specified by SHT.
Vendors must remove the foals, whether they have been sold or not, from the auction grounds on the first Monday following the auction. If the vendor fails to remove the foal in time, SHT is authorized to remove the foal and to have it stabled elsewhere, whereby the costs accrued, as considered reasonable by SHT, must be paid by the vendor.
stable vices and deficiencies
Vendors are under obligation to deliver their foals free of deficiencies and stable vices; to allow their foals to be auctioned and to submit and give in an accorded guarantee. The absence of OC and OCD in the foal does not come under this guarantee. In the case where the law and/or jurisprudence demand that the meant guarantee, and/or duration of such, require other conditions, then these other demanded conditions shall apply. In the case where a foal is put up for sale with a deficiency known to both the vendor and as well as to the bidder/purchaser previous to the sale whereby a veterinary designated by SHT has made a written report that recuperation (cure) is possible, as meant in item 24, then the vendor must undertake the responsibility of taking care of and ensuring that the recuperation (cure) of the foal takes place, without this causing extra costs for the bidder/purchaser. Until the physical delivery of the foal to the bidder / purchaser, the foal will remain for the risk of the vendor unless otherwise agreed in writing between the vendor and the bidder / purchaser.
In the event that the bidder/purchaser detects that the foal purchased has a stable vice, being either crib-biting, weaving or wind-sucking, and not a known deficiency as meant in item 31, the bidder/purchaser shall notify SHT in writing within 7 days after delivery to the new owner, with a description, in as much detail as possible, of the nature of the stable vice. In that case SHT will move the foal to a location of its choice and have the foal examined by a veterinarian of its choice in connection with the alleged stable vice as described by the bidder/purchaser. The aforementioned veterinarian’s conclusion about the cause and seriousness of the alleged stable vice shall be binding. If the veterinarian finds that the foal has the stable vice as described by the bidder/purchaser, the vendor is obliged to pay the costs accrued to SHT, including costs of stabling, transport and veterinarian’s fee. If the veterinarian finds that the foal does not have the stable vice, the bidder/purchaser must also pay the meant costs to the SHT.
The specified part in item 32, applies equally when the bidder/purchaser detects deficiencies in the purchased foal other than those as meant in item 31 and other than the stable vices as described. The vendor must take the foal back immediately and at his/her own cost in return for the remuneration of the sale price if the sale is considered dissolved or annulled.
When the bidder/purchaser does not notify in the manner required the aforementioned stable vices or other deficiencies of the purchased foal within 7 days after delivery and/or the above-mentioned veterinary does not detect stable vices or other deficiencies, the right of the bidder/purchaser to make the purchase unbinding is void, as is the right to bring a case of absence of consensus ad idem.
dissolution and annulment
In the event that the sale is legally dissolved or annulled by the bidder/purchaser, the vendor and the bidder/purchaser shall nevertheless comply with all their payment obligations, as mentioned in these conditions of auction, towards SHT, in as far as compensation to be paid to SHT is concerned. A sale can be dissolved or annulled in due observance of the relevant current legal provisions, in as far as they do not deviate from in these auction conditions in a legally valid way.
liability
SHT is not liable for the accuracy of the information in the catalogue, the information provided at the auction grounds and the information given at the auction.
SHT is not liable for the accuracy of the information contained in the veterinarian’s report (including any attached or supplemental findings), the veterinary information supplied at the auction grounds or any information provided during the auction.
SHT is not liable for any damage incurred or caused by persons, goods or horses, before, during or after the auction.
SHT will not take out any insurance for horses or other matters on behalf of vendors and bidder/purchasers. As vendors and bidder/purchasers take part in the auction for their own account and risk, the SHT advises that they take out such insurance themselves.
SHT is not liable for the failures of the vendor, the bidder/purchaser and/or possible involved third parties, including bidder/purchaser’s failure to pay.
SHT is not liable for anything whatsoever, except in cases of willful intent or willful recklessness on the side of SHT and/or those who work on behalf of, or have worked on behalf of SHT.
other matters
In the case where a bidder/purchaser is requesting the transfer of auctioned foals to another member state of the European Union or outside the European Union and has to be invoiced with a zero-rated VAT, the bidder/purchaser must comply with all the necessary conditions attached to a lawful intercommunity- or export-transaction.
If application of the VAT zero-rating tariff, no matter what the circumstances (subsequently), appears to be impossible, the bidder/purchaser is, at that time, still obliged to pay a sum to the amount that would be owed in the case of a domestic delivery of the foal concerned. At the request of SHT, the bidder/purchaser is obliged to immediately repay the above-mentioned sum to SHT. In such cases, the reimbursement of such shall only take place when the bidder/purchaser has, to the satisfaction of SHT, complied with the conditions of item 42. In any case, the bidder/purchaser is liable for, and indemnifies SHT from, any damage that may result from non-compliance of the conditions of item 42. As well as this, the bidder/purchaser is liable for all judicial and extra judicial costs born by SHT with a minimum sum of EUR 1.000,--.
All costs, commissions and compensations are based on applicable tax law. In the event of any change of law at any time, SHT is entitled to adapt all costs, commissions and compensations accordingly.
SHT shall only use the personal information / data of all parties involved for the purpose for which it was intended, namely the auction. All personal information /data will be recorded and treated by SHT in accordance with the GDPR-legislation.
When participating in the auction through online bids, the special auction conditions will apply to these auction conditions which can be found on the website (http://foalauction111.com/en/home). In case of contradiction between these auction conditions and the special auction conditions, these auction conditions prevail.
conversion
When one or more of the provisions of these auction conditions prove to be legally invalid or will become invalid in the future, this will not in any way affect the validity of any of the other provisions. In that case the legally invalid provision will be replaced by a new, legally valid provision which is as similar as possible to the old provision as far as contents, scope and objective thereof are concerned.
disputes
In the event of a difference of opinion, during the allotment, about these auction conditions, the special auction conditions and/or in relation to which person has made the last bid, or in the event of other difficulties, confusion or dispute in connection with bids and/or allotment, the auctioneer is authorized to give his binding decision. In the case of the aforementioned difference of opinion regarding the last bid, the auctioneer is authorized to continue the sale by way of bidding.
In the event that the auctioneer calls in the auctioneer to make a decision, this decision shall be binding and irrevocable for all parties. During the auction the auctioneer is also authorized to make decisions about disputes of another nature than those regarding bids and allotment.
The legal relationship between SHT, the bidder/purchaser and the vendor are exclusively ruled by Belgian law, with full exclusion of the Vienna Sales Treaty (CISG). Disputes, other than those subjected to the decision of the auctioneer or the auctioneer in virtue of items 46 and 47 shall exclusively be settled by the competent judge of Antwerp.
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SPECIFIC CONDITIONS
Upon request, the English translation of these Specific Auction Conditions in relation to online-bids will be mailed to bidders who have registered themselves.
