These Van Olst Sales Online Foal Auction Conditions 2020 (‘Auction Conditions’) are applicable to the legal relationships between the private company Van Olst Sales B.V., with its registered office in Den Hout (municipality of Oosterhout), the Netherlands (hereinafter called ‘VOS’), and participants in the online auction of foals organised by VOS via the internet at www.vanolstsales.online (‘Auction Site’) from 24 to 27 July 2020 (‘Auction’). A party that makes a bid for a foal or foals during the Auction (‘Bidder’/‘Buyer’) shall be deemed to have accepted the applicability of these Auction Conditions. The applicability of other general terms and conditions is excluded.
VOS will organise and facilitate the Auction and auction the foals by order of a seller (‘Seller’).
The Buyer is the party that makes the bid during the Auction that is accepted as the highest bid by VOS on behalf of the Seller. A purchase agreement (‘Purchase Agreement’) shall be concluded between the Buyer and the Seller as of the moment when VOS accepts a bid from a Bidder/Buyer as the highest bid (‘Closing Price’).
All of the clauses in these Auction Conditions have been made for the joint benefit of all those persons who work or have worked for, for the benefit of and/or on behalf of VOS. They can directly invoke the provisions of these Auction Conditions as if they were VOS itself.
All the amounts stated in these Auction Conditions are excluding VAT, unless stated otherwise.
THE AUCTION AND RIGHT OF WITHDRAWAL
The Auction will take place under the management of VOS. VOS will determine the order and the sequence of the Auction. VOS has the right to refuse any party access to and/or participation in the Auction, without having to give reasons for such, and/or to set (further) conditions for participation in the Auction.
In order to participate in the Auction as a Bidder, registration must take place in the way prescribed by VOS, and the conditions and procedures that are applicable and/or are declared applicable by VOS for the Auction must be accepted. VOS reserves the right to refuse and/or unilaterally to end registration for the Auction and (further) participation of a Bidder in the Auction at any time for reasons of its own. The Bidder has to register at the Auction Site digitally in order to participate in the Auction. The Bidder will receive a strictly personal username and password which can be used to access the bidding system. The Bidder is responsible for all transactions that take place during the Auction and that arise out of the use of the Bidder’s username and password. Bidding shall take place by digital/electronic means. The highest bid for each foal will be displayed on the Auction Site.
The Auction will end at the time and date specified in advance. The duration of the Auction will be stated on the Auction Site. If a bid is received in the last five minutes before the specified close time, the open time will be (repeatedly) extended by another five minutes. The definitive close will then take place five minutes after the last bid.
A Bidder accepts that exceptional circumstances can occur with an online auction, such to include technical imperfections, as a result of which a bid cannot be made on time.
A bidder who has made the second-highest bid must honour his/her bid during a period of 14 days after the close of the online auction in the event the highest bid is declared invalid or is not honoured.
The foals offered at the Auction will be auctioned/sold ‘as is’ with all faults, in the condition they are in when the Purchase Agreement is concluded, without any liability of VOS in connection with the value, the condition and/or the capacity of the auctioned foals. The risk of loss of and/or of damage to and/or damage caused by the auctioned/purchased foal shall lie with the Bidder/Buyer as of the moment of conclusion of the Purchase Agreement.
The Bidder/Buyer shall bid for their own account and risk and will be obligated to honour their bid until a higher bid has been accepted.
VOS cannot guarantee that the Seller can transfer the ownership of an auctioned foal to the Bidder/Buyer free and unencumbered, and VOS will not be liable for any damages in connection with such.
If the Bidder/Buyer is being represented by a commission agent, the Bidder/Buyer must inform VOS who the commission agent is prior to the Auction, in default of which no right to commission shall exist.
As long as VOS has not received payment in full from the Bidder/Buyer, including any payments owed under any other Purchase Agreements, the Seller shall remain the owner of the foal. Up until such time, VOS shall have a right of retention on the foal. The Seller shall only have the right to release the foal to the Buyer after VOS has given its written permission for such.
The Buyer can dissolve a Purchase Agreement in relation to the purchase of a foal via the Auction (Internet Purchase) during a period of up to 14 days after release/delivery, without having to give reasons for such, pursuant to the statutory right of withdrawal under Article 6:230o et seq. Dutch Civil Code. If the Buyer wants to exercise this right of withdrawal, he/she must notify VOS and the Seller about such in writing by registered letter. After dissolution, the Buyer shall be obligated to send the foal back to the Seller for the account and risk of the Buyer. During the reflection period and the return transportation, the Buyer shall handle the foal with the appropriate due care, and in accordance with the instructions of the Seller insofar as issued.
VOS has compiled the information on the Auction Site with the utmost of care. The information on the Auction Site is aimed at giving an impression of the quality of the foals offered at the Auction, without VOS thereby striving for completeness and no rights can be derived from such.
The foals offered at the Auction have been examined clinically by a veterinarian on 8 July 2020. A veterinary report of that examination has been drawn up in accordance with the standards of the Royal Netherlands Veterinary Association (KNMvD), which can be inspected on request prior to the Auction.
The contents of the aforementioned veterinary reports will be binding for VOS, the Seller, and the Bidder/Buyer.
The foals offered at the Auction can be inspected prior to the Auction at a time and place to be determined by VOS, insofar as possible and permitted under the measures and government measures associated with the coronavirus.
CLOSING PRICE, BUYER’S PREMIUM, PURCHASE PRICE, PAYMENT OBLIGATIONS OF THE BUYER
The Buyer must pay the Purchase Price in euros to VOS within 24 hours after the moment of conclusion of the Purchase Agreement by transfer to the bank account number in the name of VOS, without any discount or set-off. The Purchase Price will be calculated as follows: the Closing Price will be increased by an amount equal to 8% of the Closing Price up to and including €10,000, and 10% of the Closing Price over €10,000 (‘Buyer’s Premium’), plus the applicable VAT rate.
The VAT rate will depend on the capacity/nationality of the Seller, the Buyer, and the applicable regulations.
In the event of a failure to make timely payment of the Purchase Price, the Bidder/Buyer shall be in default and VOS shall have the right to immediately sell the foal privately, whereby the bid of the original Bidder/Buyer will become null and void. At no time shall the Bidder/Buyer be entitled to surplus proceeds in the event of a private sale, and shall remain obligated to compensate VOS for the lower proceeds. Furthermore, VOS shall then have the right to consider the Purchase Agreement as dissolved, on behalf of the Seller and without notice of default being required, and without the Bidder/Buyer being entitled to receive any compensation on account of such. In the event of a failure to perform by the Buyer, VOS shall have a right of retention on the foal, the Bidder/Buyer shall owe administration charges to VOS equal to 6% of the Closing Price, and the Bidder/Buyer shall owe VOS all judicial and extrajudicial costs associated with the collection of VOS’s claim against the Bidder/Buyer, with a minimum amount of €1,000. The Buyer shall not have any right of set-off.
As soon as the Buyer has fulfilled all the obligations towards VOS under the VOS Online Foal Auction Conditions 2020, VOS shall notify the Seller of such. Within 14 days after that moment, the Seller shall be obligated, on the condition the foal is 4.5 months or older, to transfer the ownership of the foal (including the horse passport, insofar as already issued by a competent authority) and to deliver the foal to an address in the Netherlands to be notified to the Seller by the Buyer. Up until the moment of delivery, the foal shall be for the account and risk of the Seller. If the foal has to be delivered outside the Netherlands, then the Seller shall not be obligated to deliver the foal for its own account and risk. The Seller and Buyer will have to make further agreements about such. If the foal is younger than 4.5 months at that time, then the transfer of ownership and delivery must take place (in the same way) within 14 days after the foal has reached the age of 4.5 months. If as a result of government and other measures in connection with the coronavirus, both national and international, the Seller and/or Buyer are not able to fulfil this obligation, the Seller shall stable and groom the foal entirely for the risk of the Buyer free of charge up to 31 August 2020, and thereafter for an amount of €10 per day to be owed by the Buyer to the Seller. The release/delivery obligation and the period associated with such will then be suspended until the date on which these government or other measures no longer prevent such.
EXCLUSION AND LIMITATION OF THE LIABILITY OF VOS
VOS will not be liable for any damages caused by the issuing of inaccurate and/or incomplete information, regardless of the nature and extent of such damages or of that information, and regardless of the source of that information.
VOS will not be liable for any damages that arise prior to, during, and/or after the end of the Auction that are caused by or to persons, and/or by or to property, and/or by or to foals.
VOS will not be liable for any damages, either direct or indirect, and regardless of the nature and extent of such, as a result of any shortcoming in the fulfilment of an obligation by a third party or third parties.
VOS shall not be liable for the non-fulfilment of any obligation as a result of strikes, shortages, riots, civil unrest, fire, floods, storms, explosions, natural disasters, war, epidemics and/or pandemics, government interventions, working conditions, earthquakes, material defects, or any other circumstance over which VOS cannot reasonably exercise any control.
The Bidder/Buyer will be liable for all damages caused by it, and shall indemnify VOS against any claims of third parties, such to include, but not limited to, Sellers and/or other Bidders/Buyers, in connection with these damages, regardless of the nature or extent of such.
Exclusions of the liability of VOS shall not apply in the event of any wilful misconduct or gross negligence on the part of VOS which is imputable to VOS.
Any liability of VOS will at all times be limited to a maximum amount of €10,000. Notwithstanding the provisions of Article 6:89 Dutch Civil Code, entitlement to compensation shall in any event expire 12 months after the event that is the cause of the damage or loss and for which VOS is liable.
TURNOVER TAX (VAT)
VOS is registered for turnover tax (VAT). Changes to the applicable VAT rate can lead to a corresponding adjustment of the applicable VAT percentages.
If in relation to the delivery of an auctioned foal to another Member State of the European Union invoicing with zero rate VAT takes place at the request of the Bidder/Buyer, the Bidder/Buyer obligates itself to fulfil all the necessary conditions in order to effect a legally valid intra-Community transaction.
If the application of zero rate VAT (subsequently) proves not to be possible due to any circumstances whatsoever, as of that moment the Bidder/Buyer shall then owe an amount equal to the amount that would have been owed in the event of a domestic sale of the relevant foal. At the request of VOS, however, the Bidder/Buyer will be obligated to pay the aforementioned amount immediately to VOS. In that case, the repayment of such shall only take place if and when the Bidder/Buyer has fulfilled the conditions to the satisfaction of VOS. The Bidder/Buyer will in any case be liable for and shall indemnify VOS against all damages that arise out of the non-fulfilment of the conditions. Furthermore, the Bidder/Buyer will be liable for all judicial and extrajudicial costs incurred by VOS, with a minimum amount of €1,000, including VAT.
Prior to the Auction, an announcement will be made about the applicable VAT regime under which each foal is being auctioned.
DISPUTES AND APPLICABLE LAW
The legal relationships between VOS and the Seller, between VOS and the Buyer, and between the Seller and the Buyer shall be exclusively governed by Dutch law, with the total exclusion of the Vienna Sales Convention (CISG). Disputes will be settled in accordance with the Arbitration Regulations of the NAI (Netherlands Arbitration Institute) by a single arbitrator to be appointed in accordance with the list procedure. The arbitration will take place in Utrecht. The arbitration proceedings will be held in Dutch. If the Buyer is a consumer, then at his/her written request the District Court of Central Netherlands, Utrecht location, shall have competence to hear the dispute. If the Seller and/or VOS wants to institute dispute settlement proceedings and the Buyer is a consumer, the Seller/VOS shall give the Buyer a period of one month to give a written notice of the Buyer’s choice to have the dispute settled by NAI arbitration or by the District Court of Central Netherlands, Utrecht location. In the event of an urgent interest (preliminary relief proceedings), the Seller/VOS can reduce this period to five working days.
The Dutch text of these Auction Conditions is binding.
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